Question: Are rules meant for only one side? Are civil laws meant for citizens but not the police? Are moral laws meant for laymen but not clergy?

Okay, one more: Are constitutional limitations meant for states but not the feds?

Our federal government has long violated the Constitution. But blatantly unconstitutional ObamaCare may finally be the straw that breaks the camel’s back, as lawmakers in nearly a dozen states have been talking about “nullification” — the Thomas Jefferson doctrine that recognizes states’ right to reject unconstitutional federal law.

And now it’s more than just talk. Republicans in the Idaho House introduced a nullification measure on Wednesday, and legislators in Alabama, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas, and Wyoming may follow suit.

Not surprisingly, the statists among us meet this proposal with disdain. The Associated Press is running the headline, “GOP invokes 1700s doctrine in health care fight” (funny, the Left loves 1700s Jeffersonian ideas when they happen to be cynicism about the clergy). And Idaho’s Assistant Chief Deputy Attorney General Brian Kane criticized the effort, saying, “There is no right to pick and choose which federal laws a state will follow.”

Really? Question: Does this hold true when the federal government is picking and choosing which constitutional restrictions it will follow?

Statists like to cite the Constitution’s Supremacy Clause (Article VI, Clause 2) as stating that federal laws are “the supreme law of the land” — the AP article makes this claim. But this is untrue, the result of a selective reading. Here is the passage with the necessary context:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land…[emphasis added].”

“In pursuance thereof” is pretty important. The clause makes clear that only laws that follow the Constitution enjoy co-status with the document as supreme.

At this point the statists will say, “Okay, so we’ll go to the Supreme Court; its job is to determine what’s constitutional.” This is the judicial supremacy that enables federal supremacy. But did you ever wonder where the idea of Supreme Court as ultimate arbiter, with the right to overrule the legislative and executive branches (judicial review), comes from?

Answer: The Supreme Court itself.

(And this opinion was rendered, the Associated Press et al. should note, in what was basically a 1700s-era decision.) 

In the famous (infamous?) Marbury v. Madison case in 1803, Chief Justice John Marshall wrote, “lt is emphatically the province and duty of the judicial department to say what the law is.” 

Wow, imagine that, an entity decides it wants more power and claims that power for itself. I bet that’s never before happened in history … except with virtually every monarch, dictator, and tyrant who has ever lived.

Now, with monarchs, dictators, and tyrants people often take the claim seriously (or at least posture to that effect) because not doing so often means some kind of unpleasant death. But note that the courts have no power to enforce their whims  or, as some would say, their rulings — all they can do essentially is talk. That power belongs to the executive branch. Yet its role is to enforce the law — not the rule of lawyers. So why do we take the Court’s power grab seriously?

I suppose the answer is that people want some entity that can mediate disputes, and since judges are called “judges,” people naturally look to them for judging. Yet since getting a law degree and donning a black robe don’t magically bestow one with infallible discernment, why would we show unfailing obeisance to these lawyers-cum-oligarchs? And if we are to suddenly lend an entity’s will to power credence, what about the ambitions of other small groups or individuals? Why look down on Hugo Chavez? He’s just assuming power he tells us he deserves.

Oh, if you would dispute me on this, know that I am the ultimate arbiter of reality. How can you know?

I just told you so.

Of course, you don’t have to believe me. Thomas Jefferson, who was president when the Marbury v. Madison decision came down, later warned that if the judiciary is to be considered the last word on constitutional matters, “then indeed is our Constitution a complete felo de se.”

This means an act of suicide.

Jefferson continued:

For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation…. The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

And he subsequently stated quite bluntly, “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy [emphasis added].”

And this is precisely what we now have.

In all fairness to Chief Justice John Marshall, he would likely be appalled at how today’s Court plays fast and loose with the Constitution. After all, he wrote in his decision, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”

Yet today’s government passes these limits at will. We have politicians who scoff at the Constitution, such as when Nancy Pelosi dismissed a constitutional question with, “Are you serious?! Are you serious?!” And we have justices who rubber-stamp such constitutional trespass with living-document rationalizations, such as when Ruth Bader-Ginsburg said that our Constitution mustn’t be “stuck in time.” But it isn’t; it’s stuck in law, supreme law that can only lawfully be changed through the Amendment Process.

The federal government has a nice racket going: It legislates more and more power for itself and has its own likeminded judiciary approve it with a wink and a nod. It has given us a living document and a dying republic.

But we don’t have to commit suicide by judge. If the feds can nullify the Constitution, the states can and must nullify their nullification. And when the Court “steps in,” we should tell it to step off, as we paraphrase President Andrew Jackson and say, “The justices have made their decision. Now let them enforce it.”

Related article:

Idaho Among States Moving to Nullify ObamaCare

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FScarn said:

Taking the Article VI oath is individual, At this point the statists will say, “Okay, so we’ll go to the Supreme Court; its job is to determine what’s constitutional.” ***** This attitude has long annoyed me. Article VI requires federal and state representatives and officers to take an oath to support “this Constitution,” meaning obviously enough the written one. The oath is not to give allegiance to others, but rather to the concepts embodied in the document. This means that each individual oath taker, from the president right down to the newest enlistee in the armed forces to determine for him/her|self what exactly the Constitution means when applied to a particular circumstance. To this very point President Andrew Jackson has on-point commentary, “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.” Andrew Jackson message pertaining to his veto of Legislation Chartering the Bank of the United States (1832).

January 27, 2011

lrgon said:

chief Justice John Marshall I don't think it's necessary to give John Marshall any kind of a break. He doesn't deserve it. And I don't think he would be "appalled" at all "at how today’s Court plays fast and loose with the Constitution." In the booklet "Restoring the Rights of the States and the People, John F. McManus says that Chief Justice Marshall was "the author of dangerous innovations that effectively turned the Constitution on its head." http://www.shopjbs.org/index.p...oklet.html Congress authorized the Second Bank of the United States in 1816 and Maryland challenged that act but lost the case at the highest court in the land. Mr. McManus writes that Marshall "showed his awareness of the Constitution's obvious restrictions and then, in the same sentence blew a huge whole in the basic meaning of the entire document. Marshall:" Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are NOT prohibited, but consistent within the letter and spirit of the Constitution..." {McCullock v. Maryland} With that opinion Marshall established a precedent that the federal government can do whatever the Constitution does not prevent it from doing. The enumerated powers doctrine was literally thrown out the window at that moment since congress did not right then and there impeach him for that egregious violation of original intent; of lacking a basic understanding of the true intent of the Founders!

January 27, 2011

Ron Bedell said:

... The U.S. Supreme Court issued a landmark decision that serves to allow judges to void the Constitution in their courtrooms. The decision was issued on January 18, 2011, and the Court did not even explain the decision (Docket No. 10-632, 10-633, and 10-690). One word decisions: DENIED.

January 28, 2011

T. Dan Tolleson said:

Congress should impeach judges who try to legislate from the bench. When Chief Justice John Marshall wrote, “lt is emphatically the province and duty of the judicial department to SAY WHAT THE LAW IS” -- Congress should have immediately impeached and convicted him for violating his oath of office. It is the province and duty of the judicial department to OBEY and APPLY the Constitution to the case at hand -- not to appoint themselves as arbiters of the meaning of the Constitution. The meaning, or original intent, of the Constitution was settled in the debates during ratification of the Constitution and the ratifying debates of every subsequent amendment to that Constitution. We already have people who “say what the law is” – they are called “Founding Fathers” and “federal legislators who ratified subsequent amendments to the Constitution.” The judges have no business substituting THEIR opinions for the original intent of the Founding Fathers and that of later legislators who ratified amendments to the Constitution. At most, judges should limit themselves to clarifying the original intent of the Constitution and the laws made “in pursuance thereof.” Likewise, We the People have a duty to ensure that our public servants follow their oath of office -- and that includes ensuring that our federal legislators exercise their power to impeach and convict wayward judges who refuse to limit themselves to obeying and applying the original intent of the Founders to the cases heard in their respective courts.

January 28, 2011

Bruce said:

States are supreme The states created the Fed and through the amendment process the states can dismantle it. They could pass an amendment prohibiting the Feds from getting involved in healthcare in any manner, they can put term limits on Supreme Court Justices, they can End the Fed. Congress and the Executive branch would have NO say.

January 28, 2011

Stefan Schreier said:

... The founding fathers foresaw a time when the federal government might use its powers to gain more power until it became a "tyranny', as they put it, or a dictatorship as we would now say. The Jeffersonian democrats expected this to happen, the federalists thought not. But both recognized that the constitution was not a guarantee. "We did the best we could" they said at the time, and they did very well indeed. But even Madison recognized the danger. Asked what guarantee the states had against a usurpation of power by the federal government, Madison replied, "The state militias". Having founded the country by armed rebellion against the existing government, the founding fathers could hardly rule it out as a future remedy. Of course we hope it will not come to that. Nullification gives the federal government a chance to back off. If they fail to do so, secession would be the next step. If they respect that, we can go in peace. If they resort to armed force, then we have reached the point envisaged by Madison. We have seen once before what that leads to: all the horrors of civil war. My personal belief is that even civil war is better than tyranny, but I would not presume to judge others. I would simply close with the last words of Vercingetorix as the Romans killed him: "I am a free man".

January 28, 2011

Isaac said:

Reply to Bruce - Sates are Supreme "Congress and the Executive branch would have NO say." Actually, they would have some say as all amendments must go through the congress or through a constitutional convention called by congress. But that is still one powerful way to restore law and order to the federal government.

January 28, 2011