Saturday, 25 January 2014 12:45

Wall Street Journal Takes Notice: Nullification "Trend Is Spreading"

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Although some self-described “conservatives” now claim that nullification is unconstitutional, others view nullification as a proper and constitutional approach for checking federal overreach and are working to apply this approach through state legislatures. Taking notice, the Wall Street Journal published an article on its website sketching the various efforts across the country to nullify unconstitutional acts of the federal government.

As the Journal article reports, state legislators in California, South Carolina, Tennessee, Georgia, West Virginia, Oklahoma, Missouri, and Indiana are stepping up and stopping the enforcement of various federal acts within the borders of their states.

The “trend,” the author writes, is “spreading.” It would need to, to match the spread of the federal kraken’s tentacles into every aspect of life and into every fundamental liberty guaranteed by the Constitution.

Specifically mentioned in the Wall Street Journal piece are federal attempts to regulate firearm possession, to build National Security Agency (NSA) listening posts in several states, and to force Americans regardless of ability or desire to purchase an approved health insurance plan.

Regarding this last overreach, the Wall Street Journal reports, “Conservative lawmakers in at least seven states have proposed laws that would prohibit state agencies and officials from helping the federal government implement the federal healthcare law and would authorize the state’s attorney general to sue violators.”

At The New American, we will continue to publish and praise every attempt by state lawmakers to check federal usurpation and to nullify every one of its unconstitutional acts, every time.

In “clarification” of its article on nullification, the Wall Street Journal notes:

An earlier version of this post stated that such state laws seem to implicate the U.S. constitution’s Supremacy Clause, which says that federal law trumps state law when the two conflict. Rather, such laws might be allowed under Supreme Court rulings that, with some exceptions, prevent Congress from compelling state officials to execute federal law.

That update corrected half of the mistake, but revealed another error.

First, let’s dismiss this recurring and ridiculous idea that somehow any federal law “trumps state law when the two conflict.”

The “Supremacy Clause” (as some wrongly call it) of Article VI does not declare that federal laws are the supreme law of the land without qualification. What it says is that the Constitution "and laws of the United States made in pursuance thereof" are the supreme law of the land.

Read that again: “in pursuance thereof,” not in violation thereof. If an act of Congress is not permissible under any enumerated power given to it in the Constitution, it was not made in pursuance of the Constitution and therefore not only is not the supreme law of the land, it is not the law at all.

If only every journalist, every talk show host, and every state legislator could understand this simple fact: Whenever the federal government passes any measure not provided for in the limited roster of its enumerated powers, those acts are not awarded any sort of supremacy. In that case, they are “merely acts of usurpation” and do not qualify as the supreme law of the land. In fact, acts of Congress are the supreme law of the land only if they are made in pursuance of its constitutional powers, not in defiance of that authority.

The Founding Fathers understood this. For example, speaking at the convention considering ratification of the new Constitution in New York, part-time Constitutional Convention attendee Alexander Hamilton said:

I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.

He put a finer point on the subject in The Federalist, No. 33:

There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.

Other founders, speaking in other state ratification conventions, expressed the same understanding of the “supremacy” of federal law.

At the Pennsylvania convention, signer of the Declaration of Independence Thomas McKean said:

The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states.

Down in North Carolina, Federalist leader and famed jurist James Iredell echoed the theme:

When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.

Couldn’t be much clearer than that.

Next, to his credit, the author of the Wall Street Journal article mentions that a Supreme Court ruling “might” “prevent Congress from compelling state officials to execute federal law.” 

Although he doesn’t identify it, the tactic referred to by the author is a well-established principle of federalism called anti-commandeering.

Put simply, anti-commandeering prohibits the federal government from forcing states to participate in any federal program that does not concern “international and interstate matters.”

While this expression of federalism (“dual sovereignty,” as it was named by Justice Antonin Scalia) was first set forth in the case of New York v. United States (1992), most recently it was reaffirmed by the high court in the case of Mack and Printz v. United States (1997).

Former Arizona Sheriff Richard Mack was one of the named plaintiffs in the latter landmark case, and on the website of his organization, the Constitutional Sheriffs and Peace Officers Association, he recounts the basic facts of the case:

The Mack/Printz case was the case that set Sheriff Mack on a path of nationwide renown as he and Sheriff Printz sued the Clinton administration over unconstitutional gun control measures, were eventually joined by other sheriffs for a total of seven, went all the way to the Supreme Court and won.

There is much more “ammo” in this historic and liberty-saving Supreme Court ruling. We have been trying to get state and local officials from all over the country to read and study this most amazing ruling for almost two decades. Please get a copy of it today and pass it around to your legislators, county commissioners, city councils, state reps, even governors!

The Mack/Printz ruling makes it clear that the states do not have to accept orders from the feds!

Writing for the majority, Justice Antonin Scalia explained:

As Madison expressed it: "The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245. [n.11]

This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

When the federal government assumes powers not explicitly granted to it in the Constitution, it puts the states on the road toward obliteration and citizens on the road to enslavement.

Although it is encouraging to read about its growth in the pages of the mainstream press, the need for nullification to continue spreading is great. The government in Washington, D.C. is out of control and it is time for every citizen to demand that every state legislator perform his constitutionally imposed duty to protect the Constitution. 

The best way to do this is to reverence our founding document by educating ourselves as to the legitimate relationship between the states and the feds and then insist that the limits on power established in the Constitution are respected and enforced.

 

Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels frequently nationwide speaking on topics of nullification, the NDAA, the Second Amendment, and the surveillance state.  He is the co-founder of Liberty Rising, an educational endeavor aimed at promoting and preserving the Constitution. Follow him on Twitter @TNAJoeWolverton and he can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

4 comments

  • Comment Link Heidi Preston Tuesday, 28 January 2014 00:09 posted by Heidi Preston

    You nailed it Mr. Wolverton (in my opinion anyway). " says is that the Constitution "and laws of the United States made in pursuance thereof" are the supreme law of the land."

    An example of what this statement means is how the amendments work as a "tool" for this endeavor of Pursuance thereof to uphold the laws of the United States and the Constitution.

    If you look back into the history of it all, the reason we had the amendments put in was according to history the original constitution was LACKING. It was lacking the “provision” made to an “incorporated” document from Federal Constitution AND State Constitutions into a nice uniform UNITED states.
    The amendments were put in (in my world view) so as to grant CITIZENS certain rights that were lacking in the Federal Constitution. So when we look at the second amendment “A well regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” In my opinion (which is worth as much as your opinion) is the right of Citizens to bear arms. Through logic a Militia is made up of individuals to make a group. So we are back to age old question are the parts bigger than the whole? No, but he parts make up the whole and the parts were what the amendment was all about.
    “The concept of selective incorporation first arose with the passage of the 14th Amendment after the Civil War. This amendment laid down important new rights of citizens, including the rights to equal protection and due process. It extended the rights outlined in the first 10 amendments to the Constitution, a section also known as the Bill of Rights.”- Law.com

    The first ten amendments obviously set precedence for the later amendments under "expands on the bill of rights" statement. Under the very first amendment, it gives it’s citizens as individuals to form a group. Number ten states-”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”…..or to the people (citizens). Nine talks about rights, ”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Which comes to the golden egg number two amendment “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ”
    1. individuals have a right to form a group (militia) of the people to keep and bear arms.
    2. to do any regulating such as abolishing these RIGHTS is an infringement of it’s CITIZENS RIGHTS.
    To alter this wording of the Constitution is playing with fire and absolutely no need for it. The so called leaders we have had knowingly abused their executive powers to their own means, now why would an educated populace or even and un-educated one (who feel the consequences of these actions without knowing the technicality of it) want to destroy the ONLY document that states that to ABOLISH these rights in any way is an INFRINGEMENT upon those rights.
    There is no problem with the Constitution as it stands, the problem is with the so called leaders we have who are over extending their executive powers while blatantly ignoring the very document that gave it to them. The cure is worse then the poison. ANYTHING through legislation will stand and will become a formal tool that can be abused or used to meet a corrupt leader's agenda or leader who has integrity enough to stand 'behind" the Constitution. It really is that simple. Don't complicate it...remember the financial mechanism worded so no-one was supposed to understand it but left tons of loop holes to expose and allow corruption? Speak out!

    "Men are moved by two levers only: fear and self interest."
    Napoleon Bonaparte

  • Comment Link Nora Monday, 27 January 2014 22:20 posted by Nora

    The few and defined federal powers make a con con unnecessary. The constitution is fine like it is, and nullification will continue to spread until we reign in the lawless criminals currently trying to destroy this republic. What we need to do is get our children out of their socialist indoctrination camps referred to as public school, and start teaching them about the constitution. In one generation, the globalists will removed from authority and our full compliment of civil liberties will be restored, if we plant the seeds of liberty in their young minds.

  • Comment Link Dennis Monday, 27 January 2014 18:29 posted by Dennis

    Alright Mr. Wolverton, I get your point and I agree with you that nullification is a valid process to check an out-of-control federal government that tramples our Constitution on a daily basis. This Tenth Amendment to our Constitution was designed specifically to prevent our federal government from becoming tyrannical. To date it hasn't worked, largely because of the Supreme Court.

    In essence it provides for us the equivalent of a musket to defend ourselves against a squadron of drones. Perhaps if our citizenry had been exercising our Tenth Amendment for the last 100 years, then it would be effective. It has too long been ignored and; therefore, our federal government has become the out of control monster that threatens our liberty, and very existence. For 50-60 of the last 100 years our federal government was trusted. This was misplaced trust. Now it is a minority of our population that trusts our federal government, but it is too late. You see a microcosm of this in our 2nd Amendment, where our government can use fully automatic weapons, whereas we must use semi-automatic weapons (an extremely conservative example).

    I too applaud any nullification effort made by any of the states to check this federal government, just as I would applaud a rabbit that makes a temporary escape from the pursuit of an eagle. I am not convinced that our Tenth Amendment, so long neglected, is an effective tool to timely resolve the ills of a present day America. I will; however, seek and support any Tenth Amendment nullification effort made in the liberal state in which I live. I will also support an Article V Con-Con (Convention of States).

  • Comment Link Liberty_Clinger Saturday, 25 January 2014 16:19 posted by Liberty_Clinger

    “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact [U.S. Constitution], to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil… the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid [Alien and Sedition Acts], are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.” James Madison – 1798 Virginia Resolution

    http://www.constitution.org/cons/virg1798.htm

    “The course & scope of the reasoning [1798 Virginia Resolution] requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constitution., the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities [Congress and President]. The resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Government from the fact that its powers were limited to the grant made by the States [Constitution]… The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties [States] themselves…in the event of usurpations of power not remediable under the forms and by the means provided by the Constitution [Article V Amendment]… It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution against usurped power. It was not necessary for the object & reasoning of the resolutions & report that the mode should be pointed out. It was sufficient to shew that the authority to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authority derived from the Constitution [Congress and President].” James Madison – 1834 Notes on Nullification

    http://memory.loc.gov/cgi-bin/query/r?ammem/mjmtext:@field(DOCID+@lit(jm090163))

    “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes - delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force… that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers…” Thomas Jefferson – 1798 Kentucky Resolution

    http://americanhistory.about.com/library/docs/bldockyres.htm

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