States rise up against Washington

State legislators around the country have introduced more than 200 bills aiming to nullify regulations and laws coming out of Washington, D.C., as they look to rein in the federal government.

The legislative onslaught, which includes bills targeting federal restrictions on firearms, experimental treatments and hemp, reflects growing discord between the states and Washington, state officials say.

“You have a choice,” said Kentucky state Rep. Diane St. Onge (R). “To sit back and not do anything or say anything and let overregulation continue — or you have the alternative choice to speak up about it and say, ‘We know what you are doing or intend to do and we do not think that it is constitutional and we as a state are not going to stand for it.’ ”

Last month, St. Onge introduced H.B. 13 to nullify federal gun control laws within Kentucky state lines. Similar legislation has been introduced in seven other states.

“This law is saying the sheriff and those under him do not have to follow federal regulations,” she said.

Friction between the states and the federal government dates back to the nation’s earliest days. But there has been an explosion of bills in the last year, according to the Los Angeles-based Tenth Amendment Center, which advocates for the state use of nullification to tamp down on overzealous regulation.

“People are becoming more and more concerned about the overreach of the federal government,” said center spokesman Mike Maharrey. “They feel the federal government is trying to do too much, it’s too big and it’s getting more and more in debt.”

The 10th Amendment of the Bill of Rights reserves to the states powers not granted to the federal government by the Constitution. States have long used it as a tool to protect themselves against regulations.

Though federal law trumps state law, Maharrey said states are learning to exercise their own power by pushing back.

Without the resources to enforce its laws, the federal government is forced to rely on state action. When states refuse, federal law becomes virtually unenforceable, he said.

“States were always intended to be a check on federal power,” Maharrey said.

The National Conference of State Legislatures, which monitors action in the country’s statehouses, could not confirm the center’s 200-plus bill count, though a spokesman said there is a vocal movement behind the notion that some issues are best left to the states.

“It is often said states are the laboratories of democracy and the Tenth Amendment is something we at NCSL advocate for on behalf of states every day,” spokesman Mick Bullock said in a statement.

West Virginia and 19 other states, for instance, have introduced legislation to allow terminally ill patients to have access to investigational products that have not been approved by the Food and Drug Administration. Included on the list are Oregon, California, Utah, Texas, Virginia, New Jersey, Rhode Island, New Hampshire, Maine, Indiana and Tennessee.

In Florida, state Rep. Michelle Rehwinkel Vasilinda (D) has introduced a bill that would legalize and regulate the production of hemp in the Sunshine State; a similar effort appears stalled at the federal effort.

“All politics is local and we try to solve problems at the local level,” she said. “We have the authority to solve our own problems at the state and local levels — that’s what is great about the United States.”

Republican members of Congress say the spike in state nullification bills is a natural response to the current administration.

“I think it’s due to the frustration with an out of control president who seems to be expanding federal power through executive action,” said Sen. Lindsey Graham (R-S.C.). “Obama’s not bringing us together he’s dividing us further. This is an example of how we’re being divided.”

Though there are constitutional limits, Rep. Peter DeFazio (D-Ore.) said, states have the right to act when Congress won’t.

“They have a lot of rights to move ahead in a lot of discrete areas when they are confronted with paralysis here,” he said. “We set a floor on a lot of things, they can always exceed it.”

In Virginia, conservatives are pushing for states to invoke Article 5 of the Constitution and hold a “convention of states” to restrict the power and jurisdiction of the federal government.

The group Citizens for Self-Government is leading the charge, and three states — Alaska, Georgia and Florida — have already passed resolutions calling for the convention.

Another 26 states are considering legislation this year, according to the group’s president, Mark Meckler. It would take 34 states to call a convention.

“The citizens of this country believe Washington, D.C. has exceeded its boundaries,” he said. “Article 5 is the only method available to us to push back.”

At the convention, Meckler said the states would work to pass amendments that impose fiscal restraints, regulatory restrictions and term limits on federal officials, including members of the Supreme Court.

“We’ll have [Article 5] applications pending in 41 states within the next few weeks,” he said. “The goal is to hold a convention in 2016.”

On Monday, former Sen. Tom Coburn (R-Okla.) announced he is joining the Convention of States Project as a senior adviser.

“Our Founders anticipated the federal government might get out of control at some point, and they gave us a Constitutional mechanism to rein it in,” he said in a statement. “Many in Washington have unfortunately forgotten they work for the American people, and the people have begun to mobilize in this effective effort from coast to coast.”

The 14th A, Commerce Clause, and the Necessary and Proper Clause are clauses in the Constitution. The very fact they are in there means they are Constitutional. I agree the feds have become reckless and decadent. But so much of what you said isn’t legally correct.

The Supremacy Clause says federal law and court decisions override state laws, mainly if there is a conflict between the two. So, a state cannot be a party to the Constitution and agree that federal law is supreme, then say it is not.

The 9th Amendment essentially prohibits the federal government from creating additional powers beyond those enumerated in the Constitution. So, Congress cannot add enumerated powers to Art I, sec 8 at will. But it does not limit the growth and application of those already enumerated powers.

The 10th Amendment preserves the right of the states to regulate health, safety, welfare, and morals. It also reserves the right to retain their own legal jurisdiction and laws, i.e., contract, property, tort, and probate law. For example, federal courts will not touch a probate case unless there is some constitutional implication. And then would only dispose of the constitutional question. Otherwise, it is pure state law. Regarding these laws, they are still subject to the Privileges and Immunities and Equal Protection clauses.

None of the above allow for nullification.

As for disposing of the incorporation doctrine, the 2nd A is binding on the states through the 14th A. Before incorporation the 2nd A exclusively prohibited Congress from infringing on gun rights. Undo that and you undo Heller, etc. Your state would then have the right to ban all guns. Your right to a jury trial for serious crimes, against self incrimination, assistance of counsel are all binding through the 14th A. Before incorporation, you did not have the absolute right to remain silent, be free of unreasonable searches and seizures, or have a jury trial. If the state provided those rights, great. But they could take them away and there is nothing you or anyone else could do about it.

As for the N&P Clause, unless you add a provision that gives Congress a broad power to create various military branches, then the Air Force would have to disband immediately since the Constitution only provides for the Army, Navy, and (after a fashion) the Coast Guard. Heck, event the Corps may have to disband the way it has developed. Remember, at first US naval vessels had compliments of marines, not Marines as we know them, at ratification.

The 16th A was properly ratified. Arguments like Ohio wasn’t a state is inane and makes tax opponents look kooky. Also, the individual income tax was perfectly legal before the 16th A. Multiple SCOTUS cases affirmed income taxes are indirect, thus not requiring apportionment. The 16th A was ratified to circumvent the Pollard case, which was based on rather strange legal reasoning that was expressed neither before or after in other cases. Even if the 16th A were repealed, your interest on bank accounts and bonds, stock dividends, and income from rental property will be taxable subject to apportionment. That is until a case comes before SCOTUS that will overturn Pollard in an instant since it was based on some pretty flimsy legal reasoning.

Finally, this big push for nullification is a double edged sword. If as conservatives we can nullify laws we don’t like, then leftists will claim a right to use it to ignore laws that conservatives support. For example, if a conservative Congress and president enact a law banning all abortions in the US, regardless of reason, Maryland, New York, California, etc., will say “F-you. Nullification.” Then proceed to hand out 2-for-1 coupons to abortion clinics. The 14th A, Commerce Clause, and the Necessary and Proper Clause are clauses in the Constitution. The very fact they are in there means they are Constitutional. I agree the feds have become reckless and decadent. But so much of what you said isn’t legally correct.

The 9th Amendment essentially prohibits the federal government from creating additional powers beyond those reserved in the Constitution. So, Congress cannot add enumerated powers to Art I, sec 8 at will. But it does not limit the growth and application of those already enumerated powers.

None of these allow for nullification.

As for the N&P Clause, unless you add a provision that gives Congress a broad power to provide for various military branches, then the Air Force would have to disband immediately since the Constitution only provides for the Army, Navy, and (after a fashion) the Coast Guard. Heck, event the Corps may have to disband as Congress created it as a separate entity in 1789. Not an Army, not a Navy.

The 16th A was properly ratified. Arguments like Ohio wasn’t a state are inane and makes tax opponents look like uneducated Neanderthals, or at best churlish. Also, the individual income tax was perfectly legal before the 16th A. Multiple SCOTUS cases affirmed income taxes are indirect, thus not requiring apportionment. The 16th A was ratified to circumvent the Pollard case, which was based on rather strange legal reasoning that was expressed neither before or after in other cases. Even if the 16th A were repealed, your interest on bank accounts and bonds, stock dividends, and income from rental property will be taxable subject to apportionment. That is until a case comes before SCOTUS that will overturn Pollard in an instant since it was based on some pretty flimsy legal reasoning.

Finally, this big push for nullification is a double edged sword. If as conservatives we can nullify laws we don’t like, then leftists will claim a right to use it to ignore laws that conservatives support. For example, if a conservative Congress and president enact a law banning all abortions in the US, regardless of reason, Maryland, New York, California, etc., will say “F-you. Nullification.” Then proceed to hand out 2-for-1 coupons to abortion clinics. Be careful what you wish for. If we are to make substantial changes in the way government operates, we must adhere as closely as possible to the law. We must think of how future generations will look back on this time. Will they see an ordered society that disagreed with the status quo with civility and proceeded to change them according to the Constitution? I hope they will see that, rather than arbitrary actions and seemingly petty squabbling amongst ourselves.

The Supremacy Clause: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land... (Art VI Clause 2 (partial)).

Any federal law NOT made in pursuance of the Constitution is NOT the law of the land. The Supremacy Clause does not validate nor ratify unconstitutional federal acts.

The Ninth and Tenth Amendments confirm the underlying presumption of the Constitution as also expressed in the Declaration of Independence: power and right begins and resides in the states and the people. All federal power is enumerated and delegated by the states and the people via the Constitution. If the Constitution has not delegated an enumerated power to the feds or prohibited the power from the states, that power remains in the states and the people.

State nullification of unconstitutional federal acts is not forbidden by the Supremacy Clause and is supported by the Constitutional presumption of state and individual power as confirmed by the Ninth and Tenth Amendments.

The Constitution as written and originally intended and understood, is the centerpiece of the rule of law in the U.S. and the standard by which federal acts are deemed valid or invalid. Many think personal moral or political viewpoint is a valid basis for federal power. But there is only one basis of federal power: the Constitution as written and interpreted based on a good faith effort to find the understanding of original intent. In turn, state nullification of federal law based on anything other than the Constitution violates the Supremacy Clause and is invalid.

Once clear about constitutional state supremacy and right, you can go on to assess what of the federal government's existence and acts are unconstitutional.

"The Incorporation Doctrine" (judicially misapplied to the 14th Amendment). Originally intended and limited to forbidding state laws segregating former slaves as confirmed in the 1872 Slaughter-House Cases, the 14A has been construed by SCOTUS, ignoring original intent and precedent, to allow the feds to enforce the first Ten Amendments and interfere with state laws leading to a parade of horribles like banning prayer and Bible study in state schools, 70+ million abortions, threatening gun rights, interference with state marriage laws, threatening free exercise of religion, etc.

Solution: As per Slaughter-House Cases, a solution could be an amendment clearly limiting the 14A to prohibiting state segregation laws and prohibiting the federal government from enforcing the first ten amendments upon the states. The federal government may only enforce the first ten amendments upon itself.

Regarding "The Incorporation Doctrine", below is an extended Q&A discussion which originated elsewhere but still relevant here, about why the Incorporation Doctrine is greatly flawed and should be abandoned.

The flawed, so-called "Incorporation Doctrine" is one of the justifications used for federal interference with state abortion and marriage laws. Below is a discussion with some reasons why this incredible expansion of federal power is unconstitutional, unwarranted, and unwanted.

Q: What is the basis for saying that the framers of the 14th Amendment intended it to apply only to former slaves?

- The historical context of the post-civil war reconstruction period to instate the former slaves as full U.S. citizens with full rights as others.

- The legal context of this being the middle of the three reconstruction amendments.

- The lack of clear text that proves specific provision of unparalleled and massive expansion of federal power which would have been completely out of place from the purpose of these post-civil war reconstruction amendments and would have produced much evidence, of which there is none, of debate and discussion about such a radical departure from American governance, as noted below.

- The weight of the probative value of accuracy and precedent in a SCOTUS case decided four years after the amendment was ratified versus 131 years later.

- The intent of the ratifiers, not the drafters. Thomas’ argument rests on the drafters’ intent to apply Corfield v. Coryell rights. But as noted below, there is scant evidence this was intended by the ratifiers and it is the intent of the ratifiers, not the drafters, that counts.

Judge Robert Bork, the generally recognized leading scholar on Constitutional Law of his time and most notably focused on original understanding and intent in construction, said this about the fourteenth amendment:

"The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment's three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. It is this corpse that [former dean of the Stanford law school] Ely [and apparently now Justice Thomas] proposes to resurrect.

"The due process clause will not do as a warrant for the creation of new constitutional rights because, as Ely notes, it is simply a requirement that government not do certain things to people without fair procedures, not a statement of what things may not be done. The fifth amendment's due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. 'There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation' (J. Ely, Democracy and Distrust (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.

"Ely's attempt [and apparently Thomas' proposed attempt] to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that 'there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless' (Id. at 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.

"Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.

"Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.

"We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (R. Bork, The Tempting of America (1990), excerpted at 180-83).

And, therefore, in reference to Justice Miller’s opinion in the Slaughter-House Cases, Bork says, “ Miller was following sound judicial instinct: to reject a construction of a new amendment that would leave the Court at large in the field of public policy without any guidelines other than the views of its members. [ ] In a word, the history of the fourteenth amendment gave judges no guidance on any subject other than the protection of blacks. Beyond that, the Justices had nothing more to apply than their personal views. That, Miller thought, was reason enough to confine the amendment almost entirely to the subject of race” (id. at 37-38).

Q: Under Bork's interpretation, a state could disarm its citizens and it would be entirely constitutional.

A: Yes, but you miss some important issues.

1) States are local governance, governed by the people of the state through the ballot by representation and directly by initiative and propositions. The majority of people of a given state are in control of what that state does as long as the feds don't interfere.

2) History shows it is the FEDS who impose noxious and unconstitutional requirements on the states. History also shows that the states, left alone, generally are in harmony with the rights and freedoms of individuals. Easiest example is abortion. Before 1973, the states generally prohibited abortion. It was SCOTUS and their application of the 14A against the states that outlawed state anti-abortion laws, allowing the infanticide of some 70 million unborn. Another easy example is currently, the greatest pressure against gun ownership isn't the states, it's the feds.

3) The freedom of states to run their own show, generally, is much more in line with the constitutional design of federalism. And, again, history tells us that the chances of a state disarming its citizens is much less likely than the feds forcing disarmament using the 14A as their club.

Yes, Bork says that the intent of the P&I clause in the 14A is not understood which is basically what Justice Miller said. So both are on solid constitutional ground. You're concerned about the consequences, but consequences are not the driving force of construction, whereas original understanding and intent are. Consequences are more of a sanity check in the light of original intent and understanding.

Here, the consequences are sublime in that the states represent smaller and more local and responsive governance keeping the federal government at bay and presumably within its constitutional limits where it belongs. Again, our greatest threat by far in this country is not the states, it is the $4 trillion bloated unconstitutional federal government that threatens out free way of life.

Q: What does Bork say about the meaning of Privileges and Immunities of US citizens, as the terms were understood in the late 1860s?

A: Well, if you are asking about the general understanding of the P&I Clause before the 14A, Bork says, "Most people have always thought that the article IV clause simply prevented a state from discriminating against out-of-staters in favor of their own citizens" (R. Bork, The Tempting of America at 181).

If you are asking what the P&I Clause was intended to mean in the 14A, Bork says this about the P&I Clause: "One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.”

So his point is judges should not insert their own personal moral viewpoints of what THEY think a clause should mean where they have no guidance from original understanding of the text. He therefore approved Justice Miller's judicial restraint and "sound judicial instinct" in doing just that.

Bork is inferring that, the history of the definition of P&I notwithstanding, there is not enough evidence to understand what and why they put P&I in the 14A. But there is PLENTY of reason conclude that no constitutional revolution was intended by the 14A. It seems that P&I in the 14A is a moot point that Thomas wants to resurrect to give "justifiable" life to the utterly discredited incorporation doctrine. Justice Miller saw that P&I in the 14A added nothing to P&I in Article IV, so it was a moot point as far as he was concerned.

I agree with Bork and Miller and believe simply that the ratifiers were trying to put former slaves on equal footing with all U.S. citizens. Just guessing (something Bork, admirably, was loathe to do which is why he might have been one of our greatest Justices if he had been given the chance), my sense is the ratifiers were simply wanting to confirm that states could not discriminate against black out-of staters. In that sense, P&I in the 14A doesn't add anything, only confirms the full citizenship status of former slaves. But that's my opinion only, not a constitutional basis for construction. I sense it's probably Bork's also, but he was disciplined and discrete enough to keep his personal opinions separate from valid constitutional construction.

Anyway, the argument is not about the historical definition of P&I. It is about what and how it was intended to mean and be used in the 14A. The P&I of Article IV is not so much about what P&I itself is so much as the P&I in one state is valid for out-of-staters. Beyond this is a "fundamental" flaw some have of understanding a basic presumption of the Constitution.

The original body of the Constitution doesn't name specific "rights" or P&I's. It is well understood that those rights named in the so-called "Bill of Rights" were listed only to appease the anti-federalists so the Constitution could be ratified. Whatever rights, powers, and liberties not delegated to the federal government by the Constitution or forbidden to the states by it belongs to "the States and the people respectively." The ninth and tenth amendments confirm that.

So the effort to define P&I is inconsistent with the whole presumption of the Constitution, that as far as the Constitution is concerned, all rights not delegated or forbidden belong to the states and the people. They don't have to be listed nor should they be listed because as far as the Constitution is concerned those rights and P&I's are none of the feds business. Only discrimination of P&I by one state upon non-state citizens is a concern of the federal government.

Justice Thomas and others want to ratify the "fundamental" rights in Corfield v. Coryell which is pure conjecture which the single Justice of the Supreme Court as much as admitted in his opinion, which evidently the drafters but not the ratifiers wanted to use in the 14A.

There is no proof that is what the ratifiers intended by P&I. One’s conjecture is as good as another. Mine is that the ratifiers meant nothing more than to confirm former slaves had the same P&I as understood in Article IV among the states as any other U.S. citizen. In the sense of probability, mine is much more likely because the other argument would have resulted in a Constitutional revolution of which there would have been some record of the debates and discussions that would have ensued.

The "Necessary and Proper Clause" (Art I, Sec 8, Cl 18). Originally intended to allow executive enforcement and regulation pursuant to legislation within the scope of the Constitution, the N&P Clause has been expanded beyond constitutional grounds and limits to such an extent that a quasi-fourth branch of government has been created: the Administrative State with behemoth bureaucracies like the $1 trillion unconstitutional Dept of Health and Human Services.

Solution: A solution could be an amendment that directly calls for abolishing all unconstitutional administrative activity and bureaucracies. This would include a time-phased teardown (not more than 2-3 years total) of the Dept of Health and Human Services (HHS - $1 trillion budget), the FDA, the FCC, Dept of Agriculture, Dept of Labor, HUD, Dept of transportation, Dept of Energy, Dept of Education, EPA, the Small business Administration.

This could mean the loss of jobs to hundreds of thousands of federal employees including officials, bureaucratic mangers, and department heads. This could also mean the loss of income to hundreds of thousands of people dependent on federal government. Hardly politically popular. Of course, there would be phase-out, phase-in periods, hopefully allowing time for the states and free market to replace these jobs and dependencies. There would be howling, wailing and gnashing of teeth. Hard to imagine it would happen.

That is why, at this point in time, state nullification of unconstitutional federal law is necessary if we are to remain free in a Constitutional Republic.

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