Posted on 04/09/2002 10:21:11 PM PDT by KrisKrinkle
A couple of weeks ago, I reviewed Loyola University (Maryland) professor of economics Thomas DiLorenzo's "The Real Lincoln," a book that presented abundant evidence that most of the Founders took the right of state secession for granted. Despite that evidence, some readers concluded differently. Let's consider an alternative to secession in response to federal government encroachment on our liberties. Suppose Congress enacted the Federal Clean Thoughts Act (FCTA) and President Bush signed it. Under its provisions, before books and newspaper reports could be published, and before television and radio programs could be broadcasted, prior approval of their "fitness" would have to be obtained from the Federal Clean Thoughts Commission. Several parties bring a lawsuit before the U.S. Supreme Court charging FCTA is a violation of the First Amendment. However, the court finds that under the Constitution's "general welfare clause," the law is constitutional.
What do Americans do? Do we accept the tyranny or pick up the sword, or do we think about state secession again? I would hope that the response of my fellow Americans wouldn't be: "Williams, the law is the law. The Court has said FCTA is constitutional, and our job is to obey." What's clear in this scenario is that the legislative, executive and judicial branches of government are joined with one another to undermine our Constitution and destroy our liberties.
Do we allow the federal government to determine the scope of its own powers? Should we accept whatever Congress, the White House and the courts say is constitutional? Not according to Alexander Hamilton, who in Federalist Paper 28 said, "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."
One response to federal encroachment is for state governments to declare federal laws that have no constitutional authority null and void, and refuse to enforce them. While the U.S. Constitution provides no specific provision for nullification, the case for nullification is found in the nature of compacts and agreements. Our constitution represents a compact between the states and the federal government. As with any compact, one party does not have a monopoly over its interpretation, nor can one party change it without the consent of the other. Additionally, no one has a moral obligation to obey unconstitutional laws. That's not to say there isn't a compelling case for obedience to unconstitutional laws: the brutal force of the federal government to coerce obedience.
While Congress hasn't yet enacted such a flagrant violation of the First Amendment, most of what Congress does, with U.S. Supreme Court and White House sanction, represents constitutional encroachments of varying degrees. You say, "Williams, explain that." Article I, Section 8 of our Constitution enumerates (lists) those powers delegated to Congress. The Tenth Amendment reads, "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." That clearly says that powers not delegated to Congress by Article I, Section 8 belong to the people and the states.
In violation of both the letter and spirit, the federal government imposes unconstitutional and costly mandates covering the gamut from education and land usage to how much water can be used to flush toilets. I wonder when a governor and his state legislature will summon the courage to declare some of these federal laws null and void, and refuse to enforce them.
Of course, Washington might respond by not sending back money the citizens pay in federal taxes. Then the potential of ugliness arises because the state can establish a mechanism to withhold the money its citizens send to Washington.
IOW, Williams is expressing a desire for the states to declare null and void those federal laws it considers to be unconstitutional. As I noted, this raises some real problems for Constitutional government, in that the states are specifically not empowered to decide what is constitutional. Rather, they are explicitly bound to uphold the Constitution as the supreme Law of the Land.
The states, as well as the people, do not derive their powers from the Constitution. That is the whole point of the 9th and 10th Amendments. The Constitution was written to enumerate the powers of the federal government, except in those instances where "state" or "states" is specifically mentioned.
The Constitution delegates certain to the United States, specifically denies certain powers to the states.
The Constitution defines proper channels. Article III is quite clear on the topic that the Supreme Court has authority to rule on the Constitutionality of laws. Once a law has passed muster with the USSC, the states are bound by Article VI to uphold (i.e., enforce) them. Prior to a USSC ruling, states or individuals may appeal any law with which they disagree.
Where exactly does it say that the Supreme Court shall have sole power in deciding what is or is not constitutional?
An amazing question, to be sure. One approach to answering this is by pointing to consistent practice: it's been done this way since we began operating under the Constitution.
Getting to Constitutional specifics, please see Article III, Section 2, which says in part: The judicial Power [of the Supreme Court] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
(The 11th Amendment modifies the underlined portion, in that The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.)
Who originally constituted said government? If memory serves, "we the people.
True. And the Constitution explicitly provides methods by which we the people may re-constitute government. However, if the people are going to live under the Constitution, then the first requirement is that they respect what it says.
Your (and Williams's, and my) real complaint is not the words of the Constitution, but that "we the people" don't seem to be very interested in doing what the Constitution says.
I don't suppose it'd be to much trouble for you to reference such comments, and also perhaps to provide the context for this statement?
Without such information, I can only presume that you're cherry-picking useful sentences.
To put it in context, read Federalist Paper 28.
The nullification crisis (precipitated by South Carolina, and defended by Calhoun) did not actually include nullification. Rather, the issue was settled by the Clay Compromise of 1833.
On the topic, one historian wrote: [Hayne's] speech [in favor of nullification] was answered by Mr. Webster in a vigorous constitutional argument, concerning whose power and effect we may quote from Mr. Madison: "It crushes `nullification,' and must hasten an abandonment of `secession.'
The Hayne-Webster debate may be read here.
I am unfamiliar with the other resolutions.
Actually it did. It passed the state legislature in 1832 Found here
Putting it in context, Federalist 28 (by Hamilton, not Madison, BTW) starts off with this:
THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.
Hamilton notes that states will often have the resources to address small disturbances on their own. He then goes on to say, If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. Which is to say, in some cases the Federal Government may take an active interest in insurrections.
Your quote comes much later, in this context:
Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
Note that in this context, Federalist 28 addresses excesses by both the state and federal government, and that the rights of the people against either can be ensured by their siding with one against the other.
Hamilton's reasoning is not moral, it's eminently practical: he felt that the Federal Government would not have a large enough standing army to stand up to the greater military capabilities of the states.
Federalist 28 is not naive about the possibilities of despotism by the Federal Government: The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
Which gets back to John Adams's point: the Constitution has no force except in a country with a moral populace, and moral representatives.
The question was whether or not the national government would recognize it. In the event, the nullification act was never an issue, as it was mooted by the compromise.
They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
You sidestepped the entire passage Williams is referring to. I don't follow your logic.
Hm. So you're saying that if the federal government passes a law, and some state decides to ignore it, that the federal government need not address the issue?
Sheer fantasy.
I suggest that you would be much better served by acting like an adult.
You sidestepped the entire passage Williams is referring to. I don't follow your logic.
I don't understand your comment.
It's one thing to discuss Marbury vs. Madison, and quite another to send folks off to a partisan discussion that does not address the decision in any detail.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.