For many years, American political activists have focused on trying to reform Washington. This is not surprising, given that every year thousands of unconstitutional laws are passed which glorify perversion, bring America closer to becoming a totalitarian police state, sink the nation further into unpayable debt and progressively strip historic liberties from the states.
Despite the efforts of thousands of activists and a few godly lawmakers to change the direction the American national government is heading, it has become apparent that the system is, humanly speaking, beyond all hope. The leviathan of federal government has simply become so corrupt that all efforts to bring sanity inevitably run aground.
Such is the bleak picture of contemporary American politics. Yet it is out of this very bleakness that a breakthrough is happening of historic importance.
Instead of trying to reform Washington, many states have simply decided to ignore the laws the federal government is vomiting forth. They have realized that the corrupt federal government is rather like the devil who can only work if he has out consent.
But can a state like Idaho, Virginia, Tennessee, Arizona, etc., really decide to just disobey unconstitutional laws coming out of the nation’s capital? You bet they can. In his article ‘We Refuse’, Michael Boldin points out that
25 states have passed laws and resolutions nullifying the Real ID act – stopping it dead in its tracks in most of the country.
7 states have passed Firearms Freedom Acts – nullifying some federal gun laws and regulations in their states.
14 states have now passed laws nullifying unconstitutional federal laws on marijuana.
3 states have already passed Health Care Freedom Acts to ban federal health care mandates in their states.
Other states are considering nullification laws on cap and trade, the misuse of state national guard troops, monetary policy and much more.
But isn’t this just rebellion? Do the American states really have the authority to nullify unconstitutional federal laws? According to a literal interpretation of the Constitution’s 10th Amendment, the answer is yes: states do have the authority to do this. But first, it may be helpful to give a brief history lesson.
The Constitutional Convention
From May 25 to September 17, 1787, the American founders met for a "Grand Convention at Philadelphia." Ostensibly their purpose was to discuss revisions to the Articles of Confederation (the United States’ governing charter before the present constitution). However, it quickly became apparent that the Articles were inadequate. For one thing, because the Articles required all the states to agree on something before action could be taken, any single state could blackmail all the rest. Moreover, others feared that because the states were so powerful and Congress so weak, the latter could do little to block outside invasions.
That is one of the reasons that many of the delegates to the Constitutional Convention believed America needed a stronger and more centralized government. George Washington said, for example, that “there should be lodged somewhere a supreme power to regulate the general concerns of the Confederated Republic, without which this Union cannot be of long duration.”
At the same time, however, many of the delegates were concerned that if too much power was handed over to the centralized government, then the states would lose their historic sovereignty. (After all, their Declaration of Independence had declared them to be “free and independent states”, language which clearly assumed state sovereignty.)
Various plans were put forward for how to achieve a government that was strong enough to deal with matters of national concern, but which had sufficient checks and balances to prevent it from becoming too strong or tyrannical. After much discussion, a proposal was put forward by Roger Sherman from Connecticut called the Great Connecticut Compromise. According to this plan, the legislative branch of the American Congress would consist of two houses. One house of Congress – the House of representatives – would be made up of representatives from the states based on population, while in the other house – the Senate – each state would be equal and have two senators. Since the government was designed to be a republic rather than a democracy, it was agreed that the senators would not be elected by the people directly but would be chosen by the respective governments of the states.
When the Constitution was finally adopted on September 17, 1787, it incorporated these and other ideas in order to achieve a balance of power between the states and the federal government. However, even this was not considered a sufficient safeguard for preventing what many dreaded: the eventual consolidation of power within the central government. In response to this fear, the states of New York, Rhode Island and Virginia each included in their written ratifications of the Constitution statements asserting the right of their states to secede from the union should they ever desire to do so. New York’s ratification read in part: “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…" Virginia’s read: ‘…the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them [the Virginians] whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…”
The 10th Amendment
In 1791, a Bill of Rights was added to the Constitution to further protect states’ rights. The Bill of Rights included various amendments to the constitution, the tenth and final one which read, “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.”
The 10th Amendment made explicit that the American federal government had no authority outside what was directly delegated to it by the Constitution. The historian Thomas Woods explains the 10th Amendment like this:
The Tenth Amendment guaranteed the states’ rights to self-government. If the states had not delegated a particular power to the federal government, and if the Constitution had not forbidden the power to the states, then it remained as reserved to the states or the people. For Thomas Jefferson this was the cornerstone of the entire Constitution. Its presence in the Bill of Rights serves to remind us of the importance of self-government in the minds of Americans of the early republic.
The 10th Amendment and Nullification
One doesn’t have to speculate on how to interpret the 10th amendment, because early on in the history of the republic there were test cases. In 1798 Congress passed the Alien and Sedition Acts, exercising authority not directly delegated by the Constitution. In response, Thomas Jefferson and James Madison secretly authored the Kentucky and Virginia Resolutions. The Kentucky Resolution stated that “the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government” and that “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson went on to write that
"where powers are assumed [by the federal government] which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them"
Thomas Jefferson put it in a letter to W. Crawford like this, “If any state in the Union will declare that it prefers separation… to a continuance in union… I have no hesitation in saying, 'let us separate.'” Again, in a letter to Madison in August 1799, he wrote, “[We should be] determined…to sever ourselves from the union we so much value rather than give up the rights of self-government…in which alone we see liberty, safety and happiness.”
Many states followed Jefferson in asserting their right to secede from the union should Congress overstep their constitutional bounds. For example, in 1803, the states of New England threatened to secede because of their opposition to Jefferson’s Louisiana Purchase. In 1807, the New England states again threatened to secede over the Embargo Act. In 1812, the New England states threatened to leave the Union over the fact that Louisiana had been allowed to become a state. In 1860, the state of Vermont considered secession. Even Abraham Lincoln, in his early career, advocated this right, saying, “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world.”
(To read more about Nullification, see my article on The War Between the States and Economics)
“Everything…Thrown Under the Power of Congress"
It was not until after the War Between the States that the reality of states’ rights was largely forgotten. A new hermeneutic for interpreting the Constitution began to emerge which saw it as a charter granting positive rights and liberties instead of a document limiting the power of the federal system in order to preserve rights and liberties.
Slowly at first, but then skyrocketing at breakneck speed, Congress began enacting thousands of laws and regulations not made in Pursuance of the powers enumerated by the Constitution.
The situation that has now come upon us was one that President Madison had warned against. In 1817 President Madison vetoed a bill authorizing federal expenditures for the building of roads and canals. Although Madison was personally in favour of using federal funds for roads and canals, he recognized that the Constitution had not specifically delegated to Congress the authority to undertake these projects. In order for the desired legislation to be legal, Madison argued, the Constitution would have to be changed. “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare,” Madison warned,
“they may take the care of religion into their own hands; they may appoint teachers in every state, country, and parish, and pay them out of their public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.”
A Renaissance of States' Rights
Madison’s fear that the sovereignty of states would be displaced by a situation in which “everything…would be thrown under the power of Congress” was realized long ago. Recently, however, many Americans have understood that states are under no more obligation to obey unconstitutional federal laws than my children are under the obligation to obey the rules of the father next door.
At the center of this new movement, reasserting the reality of the 10th amendment and the constitutional sovereignty of states, is an activist organization called the 10th Amendment Center. When Obama passed a bill imposing unconstitutional health care legislation on the states on 30 March this year, the 10th Amendment Centre drafted model legislation for states to use in resisting Obama’s law. It reads:
The Legislature of the State of ______ declares that the federal law known as the “Patient Protection and Affordable Care Act,” signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.
The legislation goes on to criminalize those within the state who might attempt to enforce Obama’s law, threatening them with up to five years imprisonment.
“Issue by issue, law by law, the best way to change the federal government is by resisting it on a state level” wrote Michael Boldin, who runs the 10th Amendment Center. “When a state ‘nullifies’ a federal law,”, “ it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as that state is concerned…
A shorter version of this post will be appearing in the monthly magazine of Christian Voice , a UK ministry whose website is http://www.christianvoice.org.uk/. The article is reprinted here with permission.