Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it in the States, are reserved to the States respectively,
or to the people.” - Nullification
If Election 2020 proceeds without a dramatic Trump surprise ending, Joe Biden will take office with the most progressive agenda seen in modern times. This may concern freedom-loving Americans who have already witnessed the loss of Constitutional rights from far less radical Democrat and Republican administrations. Yet, there is much we can do to protect ourselves from federal overreach, and it's as old as the republic. States can simply opt out. Nullifying unconstitutional federal law has been used for centuries and has averted a magnitude of offenses. And while division around the country grows, nullification is likely to be the shining star that keeps oppressive administrations at bay. In fact, almost every state has already passed laws in defiance of one federal order or another. So why stop now?
Fortunately, nullification is not a left or right issue. In recent years, Democrats led the way with California’s medical marijuana legislation in 1996, before expanding its reach to include recreational use in many states. Blue states also acted against federal immigration laws by establishing nationwide sanctuary cities. The right has its own list of resistance. Republican legislators annulled federal intervention with laws supporting raw milk, recognized gold and silver as legal tender, voted against Common Core in the schools, and refused Obamacare mandates. Some states allowed “the right to try” for terminal patients, and, of course, many threw out gun control mandates. Recently some states have gone even further, by passing laws to prosecute federal agents who try to usurp state laws passed to override theirs. The Feds would be wise to tread lightly; nullification has moved from passive resistance to aggressive defiance.
Thomas Jefferson first used the term nullification to express a state’s right and responsibility to void any federal laws violating the Constitution. The Constitution was, after all, written to limit the authority of the federal government, with the lion’s share reserved for the states and the people. And despite the Founders’ attempts at limiting this authority, through provisions like the separation of power and checks and balances, the final recourse rested with the states. And it isn’t merely the state's option to resist unconstitutional federal laws, it is their duty to do so.
Philosophical differences regarding our founding began before the ink was even dry on the Constitution. The first, called compact theory, was supported by the American Founders who formed a republic based on states’ rights and individualism. The federal government, in their eyes, was implicitly a creation of the states. The other, the nationalist theory, admired Britain’s strong central government, national banks, and unlimited power. They believe the Constitution was ratified by one unified people and not the states. Today, the left still seeks to impose a one-size-fits-all scheme nationally, while the right supports decentralization and personal sovereignty. How the left has come to interpret the Constitution has also given the federal government more power. While the right takes the originalist or strict constructionist view and believes jurors should base their findings on the founders’ limited original intent; the left takes a looser view of the Constitution as a living document, that must change with the times, and thus, allows a broader interpretation.
In Thomas Woods, Jr.’s, 2010 book, “Nullification”, Woods provides a detailed historical account of nullification, its intent to limit the power of the federal government, and how it has been used over the centuries to curtail federal overreach. Woods focuses primarily on three main clauses in the Constitution that have caused the most mischief and expansion of power: the General Welfare Clause, the Commerce Clause, and the Necessary and Proper Clause. Supported by eleven essential documents at the back of the book, Woods provides a robust defense of states’ rights.
The federal government was given a limited list of powers by the states when the Constitution was ratified. If the states collectively decided to change their power, it would be achieved through a Constitutional Amendment by either a two-thirds majority in both houses or by a three-fourths approval of state legislatures. When federal laws exceed their limits, however, nullification provides a clear remedy. While the Supremacy Clause of the Constitution outlines how federal law supersedes conflicting state law, it does not apply to unconstitutional laws, nor does nullification apply to laws that the states simply don’t like.
Biden has already proposed a bevy of new taxes and regulations on individuals and businesses alike. How we are affected by these expansions of federal power lies with the people. If the citizens of a state are determined not to obey a law they consider unconstitutional, that law simply will not be enforced. And there are too few federal resources to force its will on the states and the people.
Unfortunately, allowing the federal government to grow beyond its Constitutional limits creates the type of election seen in 2020, rife with desperation, and fraught with fraud. Voiding unconstitutional laws are only the first line of defense. When nullification fails to contain the power of the federal government, secession looms. Then, the real fun begins.
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