Nullification: The Duty and Right of the States, Part One
by Kris Anne Hall
(Part two of this article will run tomorrow.)
After perceiving a long train of usurpations of power by the federal government which culminated in legislation known as Obamacare, many Americans took to the streets in protest. They appealed to the Legislature to no avail. The legislation ultimately made its way to the Supreme Court. We then witnessed a colossal rewriting of our founding documents in the majority opinion to the Obamacare mandate. Justice John Roberts in a few lines pulled down the pillars of the Republic and set us on the path to totalitarianism. Nearly half of the population rightfully regards this legislation as extending far beyond the enumerated powers of the federal government. The truth is, not only should the States be able to deal with their own health insurance issues, but the federal government has no legitimate authority to rule by such dictates. Yet, many who vowed to fight it “to the end” have now acquiesced and declared that it must be submitted to as “the law of the land.” So is this the end? Since SCOTUS made its declaration from on high, must we now bow to an all-powerful government, from which no area of our daily life is off-limits? Or is there a remedy yet remaining? Can the States legitimately resist federal law or is this “treasonous” as some have suggested?
To answer these questions we must first understand the nature of the Republic we call the United States. These States are “United” in a compact, the Constitution. This compact, or contract, made among the States not only the created the federal government but also dictated the limited and specific powers delegated to the federal government by the parties of this contract. Secondly, since the States are the parties to the compact and the creators of the central government, then the States, naturally, are the masters of their creation. That is to say, they are sovereign – independent of, separate from and sovereign over the federal government. All of the powers not delegated to the federal government remain with the States and the people. The 10th Amendment makes that very clear.
“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.” 10th Amendment to the US Constitution
It is upon this foundation that the States have the ultimate right to stand against ANY unconstitutional law created or enforced by the federal government. The 10th Amendment declares that the federal government is to only operate within their delegated powers. James Madison explains those delegated powers in Federalist Paper #45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…” Federalist Paper #45
Madison then goes on to explain “the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Federalist Paper #45
Therefore, the 10th Amendment in conjunction with Madison’s explanation makes it clear that the States’ powers are numerous, the federal powers are few, and the federal government has no business interjecting itself into the powers reserved to the States. To claim the 10th amendment says anything else would make the Constitution a complete absurdity.
Since there are no areas of power that are simply floating out in the neutral zone waiting for someone to use them, if the federal government uses a power that was not Constitutionally delegated, it must steal it from the States. When the federal government does this, it removes power from the States, rights from the people, and makes the Constitution completely meaningless. Such overreach sets the precedent that no power is reserved to the States and that all power is open for federal taking. This effectively nullifies the 9th and 10th Amendments, and destroys the Constitutional barriers established to contain a limited and defined federal government. What will then be the federal government’s limitations? Nothing but its own will.
“That they will view this as seizing the rights of the States, and consolidating them in the hands of the general government, with a power assumed to bind the States, not merely in cases made federal, but inall cases whatsoever…that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority…” Thomas Jefferson, Kentucky Resolutions of 1798
This is, in essence, what Justice Roberts declared in his opinion on Obamacare, overturning the very purpose of the Constitution itself – to enumerate the powers of a limited central government and bind it under the authority of the States. What happens when the barriers of the Constitution are completely swept away? The federal government will now have the ability to exercise any power over the States whatsoever. The people will be rendered completely powerless and irrelevant. What will be the purpose of elections then? We will no longer be a republic, but a government ruled as a Kingdom.
“…for the federal government to enlarge its powers by forced construction of the constitutional charter which defines them…so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases…the obvious tendency and inevitable result…would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.” James Madison, Virginia Resolutions 1798
So, when the Legislative, Executive and Judicial branches of the federal government have collectively torn through the boundaries set by the Constitution, and the people have no recourse in the federal system, what is the remedy? What is the proper course when the federal government has gone rogue? The drafter of the Declaration of Independence, Thomas Jefferson and The Father of the Constitution, James Madison speak very clearly on the position of the States as the sovereign defenders of the foundations of our Republic. It is the founders of the Republic who must give us our remedy…
KrisAnne Hall is an attorney and former prosecutor, fired after teaching the Constitution to TEA Party groups - she would not sacrifice liberty for a paycheck. She is a disabled veteran of the US Army, a Russian linguist, a mother, a pastor’s wife and a patriot. She now travels the country and teaches the Constitution and the history that gave us our founding documents.