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In a Nutshell, the Case Against a Con-con

The proponents of an Article V constitutional convention tell us it’s necessary, to save the country. As confirmed opponents, we say that we must at all costs avoid it, to save the country — or at least, to save the Constitution. Yet, so far, it has not been the easiest thing in the world, to get a grasp of either side’s argument.

The burden of proof should surely be on the proponents of a major undertaking of this sort, which, though described in the Constitution, has yet to occur in our entire history. Instead, they lobby largely outside the public view for their unprecedented “solution” and seek no debate. All the more then, do we as opponents of an Article 5 “Con-con” need to identify and understand the principal objections, to help us carry the issue.

Alright, then, what is fundamentally wrong with the Article V Con-con push?

The Alleged Benefits

Let’s start with the alleged benefits of holding an “A5C” (Article V Con-con). The notion most successfully selling state legislatures on an A5C is the idea that THIS is the key to reigning in that out-of-control monster, our federal government. There are even claims that this part of Article V was put into the Constitution precisely as the solution that states might bring into service, like pulling a rabbit out of a hat, should the federal government ever exceed its constitutional bounds.

This recently contrived mythos is outlandishly inaccurate. What Article V says it would call a convention to do, is to propose constitutional amendments. Therefore, to suggest that Article V was put into the Constitution in case the federal government needs reigning in is to suggest that amending the Constitution was considered the key to controlling the federal government.

Yet, almost everything the A5C proponents consider a transgression on the part of the federal government (e.g., spending to bust the budget), and that they claim an amendment would fix, is something the Constitution already outlaws! If the government were obeying NOW the clear mandates of the Constitution, none of these problems would be plaguing us!

Changing the Constitution is the wrong solution to an enforcement problem. The Constitution itself was designed to be, and explicitly portrays itself as, the chains for binding down the federal government.

Of course, we cannot just dismiss it as impossible, that some such amendment might have a beneficial effect. But the suggestion that legislators who disobey large swaths of the Constitution will somehow behave better when faced with an amendment, ought to have the burden of proof. Yet which of the A5C supporters has ever tried to prove this?

The “term limits” Con-con call is somewhat different: Instead of suggesting amendments are magically stronger than the Constitution itself, it suggests that Congress-persons who can run for re-election only so many times will magically behave better than those who can run any number of times. But folk who understand the meaning of “lame duck session” know that congress-people not subject to the ballot box are less likely to behave!

Not every call for an A5C claims, necessarily, that it will save us from government’s bursting of constitutional bounds. But every such call feels an obligation to downplay costs or risks that an A5C may present. And here, we shall see, is where proponents out-do themselves in making up fantastic claims.

The Danger

Proponents want to sell us the line that it is possible to put constraints, ahead of time, on an Article V constitutional convention — so that it will only consider certain topics, and perhaps only follow certain procedures. Yet, as Don Fotheringham explains so clearly and documents so tellingly, in America, the people, not legislatures, are sovereign — over constitutions as well as over governments. “We the People” wrote the Constitution; and that is who will propose amendments to it, or even total rewrites of it, if an Article V constitutional convention occurs.

Is that not what happens in every state today, when a state-constitutional convention is called? This popular-sovereignty principle is built into, not only the Preamble of our current Constitution, but also the very Declaration of Independence that brought the United States into being:

We hold these Truths to be self-evident … [t]hat to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. That whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Forms, as to them shall seem most likely to effect their Safety and Happiness.

The one historic example we have for a constitutional convention at the federal level, was the one that produced our current Constitution. For proponents of another federal convention, then, it is quite embarrassing that writing a new constitution was not what that first convention’s delegates were sent there to do: they were merely to discuss, debate, and possibly propose some amendments to the then-current Articles of Confederation. But, as James Madison emphasized, the delegates represented the People of the United States — not the state legislatures — and therefore they had autonomy from all legislatures, whether state or federal, in determining the scope as well as the rules of their convention.

So, as Don Fotheringham emphasizes, every state legislator needs to be aware that the same popular sovereignty that applies to any state-constitutional convention these days, would apply also if we should ever have another federal constitutional convention. And that convention would therefore be no more under the control of either Congress or the state legislatures than was that 1787 Convention, which providentially gave us a far more perfect constitution than any convention could be expected to compose today in an environment dominated by pro-Big government media.

Unreliable Protection

One objection that arises at this point sounds reasonable, until you think about it: Since around two-thirds of the state legislatures are dominated by Republicans — goes the claim — we can rest assured that no radical proposal that does away with the Second Amendment, say, or rewrites the whole Constitution, will be ratified by three fourths of the legislatures.

However, there are two false assumptions here: First, the objection overlooks that a constitutional convention has authority, not only to set its own rules, but also to rewrite the rules of how its proposals are to be ratified. The Constitutional Convention of 1787 did exactly that; if it had not, it would have been harder to get our present Constitution ratified!

But even if the A5C resists the temptation to change the ratification rules, that leaves us with the rules laid down in Article V. And there, Congress can choose either of two routes: ratification “by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof.”

As an example that proves how dangerous and uncontrollable the second route is, Utah, the most pro-Prohibition state in the union, ratified the amendment that repealed Prohibition! Conventions, whether state or federal, are innately uncontrollable creatures; and thus, special interests may easily “hijack” them for purposes the People oppose.

Requested Actions:

  1. Contact the legislators in your state and urge them to oppose ANY call for an Article V Constitutional Convention. 2. Share this post with other concerned citizens.

For more support, see our “Expose the Article V Con-con Fraud”  campaign page, particularly the opinions of constitutional experts. Useful also, if confronting abusive, ad hominem arguments from the proponents, is an excellent recent piece by Wynne Coleman, of “No Convention of States NC,” on the growing use of such tactics. (Also, see the Heckler-Levin video rant linked therein.)

Repeal and Accept (Big Brother!)

“The firm precept of dialectic materialism, whether expressed as one step backward for two steps forward, or two short steps backward for one long step forward, has always made these concessions to the necessity of deception an absolute requirement and precaution in all Communist progress.”
— Robert Welch, American Opinion, January 1962

To make America truly great again, Americans must force the federal government back under the chains of the Constitution — get the government out of where it does not belong. In just one area — health care — that means completely reversing course, taking Big Brother out of the picture.

As we wrote in Chapter 1 “Socialized Medicine” of our 2015 booklet Media-Controlled Delusion: “Our health care system does need reform — the reform of getting the federal government out.” But that won’t happen until more of the public understands crucial omissions in the so-called health care debate.

 

GOP Control — What to Expect

With the GOP now in control of the House, the Senate, and the presidency, many voters look forward to the GOP delivering on its six-year-old promises to “repeal and replace” ObamaCare.  But those expecting real progress will be deceived, because the media reports and political claims carefully avoid what is essential for the public to understand. We quote from Media-Controlled Delusion:

  1. “First, almost no one dares mention that the Constitution does not permit any federal involvement in health care (other than to provide for the military and its own employees). The once prominent constitutional objections to this usurpation of authority have long been ignored by Republicans and Democrats alike.”
  1. “Next, federal involvement locks in the third-party payer system (where someone other than the patient pays for even routine costs). The third-party payer system bears a good share of the responsibility for ballooning costs. Another primary source of rising costs is the immense federal bureaucracy created to manage the system.”
  1. By far the most serious omission in the health care ‘debate,’ however, is its failure to address the revolutionary organization, the deceptions, and the ulterior motive driving the steady expansion of federal authority….

“The revolutionary socialist network extends back more than a century. The goal of this network is central control of virtually every human activity (socialism) and world government.” [Emphasis added.]

The humanitarian socialist pretext of caring for the downtrodden is just that — a pretext, a pretext for a power grab to make Americans dependent on Washington for their most basic needs.

That huge century-long revolutionary investment in government control won’t be reversed unless there is much greater public understanding of the powerful forces and subversive agenda promoting it. Until that happens, the political hue and cry of “Repeal and Replace” will at best mean a small step backwards while accepting much of the socialist progress of the long ObamaCare step — in short, net progress toward universal government-controlled health care.

“And that points to one of the most effective ways for revolutionaries to overcome resistance to a loss of liberty — gradualism — proceed in stages so that the end result is not universally obvious.”

We strongly urge readers to check out the linked Chapter 1 of Media-Controlled Delusion, acquaint themselves with the crucial media omissions, particularly the history of the socialized medicine drive, and then share this post widely.

Terrorists Welcome!

It is doubtful whether any of us has ever seen such an audacious judicial usurpation, or one with such serious ramifications, as the decision of federal courts to interrupt President Trump’s temporary travel ban.

Settled case law for 200 years, not to mention the Constitution, says that the Congress and executive branch can regulate immigration in any way and to any extent they please; it is therefore NOT a sort of law upon which judges can bring “judicial review”!

In an article for Conservative Review, Daniel Horowitz, author of Stolen Sovereignty, provides overwhelming arguments as to why this is so.

The full case for why courts have no jurisdiction over Trump’s immigration order

If there remains ANY doubt on the settled nature of this legal point, this list of 16 quotations Daniel Horowitz has just culled from his research should settle the issue. In particular, we draw attention to quotes 10 and 11:

“The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” [Lem Moon Sing v. United States, 158 U. S. 547 (1895)]

“[T]he decision to admit or to exclude an alien may be lawfully placed with the [p]resident, who may in turn delegate the carrying out of this function to a responsible executive officer … The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” [Knauff v. Shaughnessy, 338 U.S. 543 (1950)]

It will be a disaster if the Trump administration and the “conservative” media accept this perversion of judicial authority. Consider, for example, this less than encouraging response by Vice President Mike Pence to a question as to whether the judge also had the authority to stay the order:

“He certainly does, and that’s why the administration is complying with that order as we speak. And we’ll go through the process in the courts to get a stay of that order, so that, again, we can implement this action that is entirely focused on the safety and security of the American people.” — “Pence Defends Trump ‘Speaking His Mind’ About Federal Judge, Promises ‘All Legal Means’ to Challenge Ruling,” — abcnews (2-14-17)

Please share this post widely!

 

House Leadership in 2017

In 2012, Freedom First Society reviewed a hot new book, Young Guns — A New Generation of Conservative Leaders, by the three founders of the Young Guns Program: GOP “rising stars” Eric Cantor, Kevin McCarthy, and Paul Ryan.

In our review of Young Guns, we pointed out serious deficiencies in the program championed by these three Republicans, who misleadingly claimed to support the principles of our nation’s Founders.

As the 115th Congress convenes in January of 2017, Paul Ryan (R-Wis.) has been re-elected as the Speaker of the House and Kevin McCarthy (R-Calif.) continues to serve as House Majority Leader, having filled that position following the upset defeat of their mutual colleague, Virginia Rep. Eric Cantor, in 2014.

To better understand those holding the reins of power in the House today, we urge visitors to read our 2012 Review and share a link to this page with friends and associates.

No Omnibus in the Lame Duck

The September 28th House “debates” over a last-minute continuing resolution to fund the federal government until December 9 (after the November election) were again misleading. They mislead Americans as to the House’s true  power over the purse — IF it had the will to use it.

In The Federalist, No. 58, Father of the Constitution James Madison explained the awesome unused power of the purse, which the Constitution assigns to the House of Representatives:

“The House of Representatives can not only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse — that powerful instrument [for] finally reducing … all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Rather than asserting this power, however, the debates claimed that the House needed to work cooperatively with the Senate and the President, while perpetuating the false notion that all parties are sincerely interested in the good of the country.

House Debates (from Congressional Record)

Leading the majority (Republican) debate in the House, Rep. Tom Cole argued:

“Mr. Speaker, as a member of the Appropriations Committee, I am always disappointed when we are forced to consider continuing resolutions, especially given the work this House has done in the appropriations process this fiscal year.

“For 2 years in a row, the House Appropriations Committee was able to complete all 12 appropriations bills–and complete them before the August recess. In addition, this House passed five appropriations bills. Unfortunately, just as in years past, Senate Democrats prevented consideration of many appropriations bills on the floor of that body. This leads us to the unfortunate situation of having to put forward a short-term CR to fund the government through December 9….

“I think it is worth pointing out that you can’t have regular order in the House if you don’t have regular order in the Senate. The real reason we are here is because the Senate has refused consistently to take up appropriations bills that have been passed by this House. At some point, you simply quit passing the bills because the Senate isn’t going to deal with you.” [Emphasis added.]

We would ask, why must the House bear the blame for a government shutdown if the House has done its job? Why not insist that the Senate (and the President), as a minimum, accept the five appropriations bills as the House passed them or bear responsibility for shutting down just that portion of the government?

Actually, the CR package included one of the least controversial of the 12 regular appropriations bills, funding its programs for the entire fiscal year 2017. Appropriations Committee Chairman Harold Rogers pointed out:

“[T]he package contains the full-year Military Construction-VA bill for FY17, which was conferenced by the House and Senate and passed by the House already in June [H.R. 2577, Roll Call 342, H.R. 2577]…. It is important to note that, once the President signs this bill into law, it will be the first time since 2009 that an individual appropriations bill has been conferenced with the Senate and enacted before the September 30 fiscal year deadline.”

Lame Duck Appropriations

When the Congress resumes in the Lame Duck after the election, the leadership of both parties will lobby for either an omnibus appropriations bill, funding the government through September 30, 2017 for the other 11 areas, or for kicking the ball to the next Congress with another short-term continuing resolution. True constitutionalist should not support either option.

While the four appropriations bills passed by the House and not taken up by the Senate may not have been worthy of support individually, constitutionalists in the House should not allow a new CR or omnibus to include those areas. A House that asserts its dominance in appropriations is a necessary base from which to roll back unconstitutional government. And in a world dominated by a hostile Establishment media, that requires regular order.

So, as a minimum, constitutionalists should refuse to vote for any omnibus appropriations bill that includes those four. And best, insist on 11 separate votes.

 

 

A Troubling Example

Many Americans wonder why our federal government keeps working against our interests and how it can be brought under control. An important step in the solution is to understand what Washington is doing — no easy task, as we shall see.

The “Electrify Africa” act is a prime example of what Congress is doing that it should not.   The Act would set development priorities for foreign nations and subsidize that development (through loans and loan guarantees).

In the previous (113th) Congress, the House passed this unconstitutional foreign meddling as H.R. 2548 on May 8, 2014 (see our scorecard, 113th Congress, Session 2, roll call 208). Only 1 Democrat opposed the measure, whereas Republicans were fairly evenly split —106 in favor to 116 against.   Fortunately, the Senate didn’t pick up the authorization measure, and it died — that year.

However, a similar version, S. 2152, was brought up in the Senate late last year and passed on a voice vote. Then on February 1 of this year, the House suspended the rules (2/3 vote required) to pass S. 2152, again on a voice vote. Not a single representative demanded a recorded vote. The president signed the measure into law a week later.

During the February 1 House debates (actually self-aggrandizing campaign statements, masquerading as debate) on the Electrify Africa Act, the legislation’s leading Democrat advocate, Pennsylvania’s Brendan F. Boyle, undoubtedly reassured conservative voters when he stated: “This legislation puts into law President Obama’s 2013 Power Africa initiative.”

Pretext vs. Reality

Those U.S. representatives arguing in favor of the measure spoke forcefully regarding how the Act would address the terrible electricity shortage that is holding back Sub-Saharan Africa economically.   The lead Republican advocate in the House, Representative Ed Royce of California, stated:

“[T]oday 600 million people living in sub-Saharan Africa — that is 70 percent of the population— do not have access to reliable electricity….

“Why do we want to help increase energy access to the continent? Well, to create jobs and to improve lives in both Africa and America. It is no secret that Africa has great potential as a trading partner and could help create jobs here in the U.S.”

Sounds reasonable, doesn’t it? Yet we see several major problems. First the U.S. Constitution does not authorize foreign aid. Our government has neither responsibility nor authority to advance the welfare of other nations with taxpayer dollars, particularly when our nation is seriously in debt.

Second, private enterprise and foreign capital should be eager to make such investments as long as the regimes in those nations are stable and respectful of foreign investment.

However, here is the crux of our concern: Supporting socialist regimes may help build Internationalist control, but it is no way to help a people economically.

Ever since World War II, the Internationalist-controlled U.S. State Department has established a long, consistent track record of supporting socialist, even Communist regimes (e.g., Red China, and initially Fidel Castro), and undermining pro-Western regimes (e.g., backing the Sandanistas in Nicaragua against Anastasio Somoza and working to oust the Shah of Iran, replaced by the Ayatollah Khomeini).

As informed skeptics, we have to regard the humanitarian arguments as insincere pretexts to support a power-grabbing agenda.

The techniques employed in collectivist strategy are not new. Nineteenth-century French statesman Frederic Bastiat wrote that governments seek to increase their power by “creating the poison and the antidote in the same laboratory” — that is, by using government resources to exacerbate problems which can then be used to justify statist “solutions.”

The same strategy has damaged our economy. Government programs have provided both the carrot and the stick to drive heavy industry and manufacturing abroad. And collectivists would have us believe that more government programs are the solution to restoring our economic health.

For more on the solution, please see our “Congress Is the Key!” menu item.

If It Ain’t Broke, Don’t Fix It!

Pity the poor proponents of an Article V con-con. How could they ever have happy holidays?

For they are self-impaled on the horns of a brutal dilemma. They must argue either:

  • that amending our Constitution will somehow, magically, turn Constitution-despising government officials into Constitution-obedient ones; or else,
  • that the Constitution, as it stands, has some significant flaws that have allowed the federal government to get “out of control.”

Very oddly, though, despite such a daunting dilemma you never see a con-con proponent backing off from his or her insistence that we must amend our Constitution — and, that it needs to be done through a (colossally dangerous) Article V constitutional convention! Only this magic (albeit never-before-used) formula will save us from our “out of control” government, they keep saying.

Take, for example, the odd insistence of Mr. Nick Dranias.

Nick Dranias’s criticism of the U.S. Constitution

Mr. Dranias, who leads Compact for America, has apparently enough sense to realize that though proving the second point (flaws in the Constitution) would be a formidable challenge, proving the first is clearly impossible. He has thus, almost alone, taken on the challenge of proving that our Constitution is to blame for our bloated federal government.

Unfortunately, Dranias’s case rests on a misconstrual of the Constitution and of the history of our federal government’s borrowing and spending.

According to Dranias (on his Compact for America website), “The Constitution as it exists fully authorizes unlimited spending, taxing and borrowing in support of the enumerated powers.”

He adds quickly, “Of course, the federal government is doing much much more than what the Founders thought the enumerated powers authorized. But that is politically inevitable when you give elected officials an unlimited credit card with which they can promise anything to get elected at no immediate cost to current voters!”

Dranias is very fond of using this phrase “unlimited credit card” to describe the Constitution’s lack of explicit limitation on federal-government borrowing. He means, apparently, that they can borrow as much as they want, at any time, with no penalties felt at all soon.

The metaphor is clever but misleading. A look at the actual historical data on U.S. federal government debt makes clear how misleading it is.

How did we REALLY get our mountain of national debt?

If the Constitution is an “unlimited credit card” that allows Congressmen to buy their way to re-election, how does Mr. Dranias explain the fact that our national debt was relatively under control until the Vietnam War was winding down, and then suddenly exploded in the early 1970s?

Even though there was concern over our growing national debt before the 1970s, compared to today’s enormous debt, the debt was miniscule. Although it grew significantly during World War II, a time-chart of the debt will show that it grew practically none between 1945 and 1970. Not until the early 70s did our debt begin its exponential climb to its current astronomical heights.

Why was that? Were U.S. Congressmen generally so obtuse before 1971 or so, that they never noticed the Constitution gives them an “unlimited credit card” with which to buy votes? Or were they perhaps all angelic statesmen, before that time, who kept to the Constitution’s spending-bounds out of the goodness of their hearts?

Or, was there perhaps something that happened in the early 70s that opened the spigot for unlimited government borrowing? There was indeed: On August 15, 1971, President Richard Nixon made a catastrophic structural change to our monetary and banking system. This change allowed for virtually unlimited creation of (new) money by the Federal Reserve System, to lend to the government (at below-market-level interest rates).

For it was on that date that Nixon “shut the gold window” to foreigners,

refusing to let foreign central banks redeem their dollars for gold, facilitating the devaluation of the U.S dollar which had been fixed relative to gold for almost thirty years. While not strictly a default on a US debt obligation, by closing the gold window the US government abrogated a financial commitment it had made to the rest of the world at the Bretton Woods Conference in 1944 that set up the post-war monetary system. At Bretton Woods, the United States had promised to redeem any and all U.S. dollars held by foreigners — later limited to just foreign central banks — for $35 dollars an ounce. This promise explains why the Bretton Woods monetary system was called a “gold exchange standard” and why many believed the US dollar to be “as good as gold.” (http://triplecrisis.com/a-first-default-closing-the-gold-window/)

Redeemability is what a “bank note” is all about: It is simply a bank’s I.O.U. for the bearer’s “demand deposit” of true, commodity money (namely gold, in this case). It is understood to be strictly redeemable in that money, on demand, to whomever is bearing the note.

Perusal of a 1934 Federal Reserve 10-dollar note, for example, shows that the note declares it is “legal tender for all debts, public and private, and is redeemable in lawful money [initially, actual dollars, of gold or silver, or redeemable U.S. Treasury Gold or Silver Certificates] at the United States Treasury, or at any Federal Reserve Bank.” It states further that “The United States of America will pay to the [note’s] bearer on demand Ten Dollars.” (interpolations in square brackets ours.)

President Franklin Roosevelt had already “shut the gold window” to U.S. citizens back in 1933, allowing the banks to forego honoring their commitment to redeem the notes in gold (or Gold Certificates). But at that time they were still exchangeable for U.S. Treasury-issued Silver Certificates; and those were redeemable, in silver coins.

Then in 1968, President Johnson and Congress had nullified the pledge to redeem the Silver Certificates — again, for U.S. citizens only. But not until Nixon “shut the gold window” to foreigners also in 1971, were U.S. “dollars” — including, paper Federal Reserve “Notes” — completely unshackled from redeemability in precious metal.

Did that major change indeed open the spigot for creation of Federal Reserve paper “dollars”? Yes, of course: If banks no longer have to redeem their “notes” at all, yet those notes are “legal tender,” they will really go to town with their “money”-printing presses! They’ll be more than happy and ready to loan these fraudulent paper “notes” into circulation.

One may readily confirm that that is what has happened, by glancing at a time-chart of the M3 U.S. “money” supply: Clearly it was right around 1971 that our supply of (paper) “money” began to increase by leaps and bounds. Before then, the “money” supply was somewhat limited by the gold supply in the Federal Reserve’s vaults.

Did the Constitution permit this debt disaster?

So, is Mr. Dranias correct, in blaming our national-debt disaster on the Constitution? No — unless the Constitution permits government to declare irredeemable paper money a “legal tender” in payment of debts. For only if they are declared “legal tender” must such fraudulent, irredeemable and therefore essentially worthless notes be accepted as real “dollars,” when the government (or anyone else) offers them in payment of a “dollar”-denominated charge or obligation.

But in fact, not only does the Constitution not permit this; it forbids it. At the time of its ratification, the states had created an inflationary crisis by declaring a burgeoning mountain of irredeemable bank notes “legal tender.” This is why the Constitution forbade states to “make any thing but gold and silver coin a tender in payment of debts” (Art. 1, Sec. 10). That provision brought an end to the inflation.

Naturally, the Founders would not have permitted the federal government to step in and re-create this disaster of worthless “legal tender.” But they did not feel it needful to state explicitly that the federal government is (with the states) forbidden to do this, since (as the Tenth Amendment says) any power not explicitly delegated to the federal government, by the Constitution, is understood not to be granted to it.

Thus the Constitution also did not permit the government to take these other actions that were crucial in its drive to substitute paper, irredeemable currency for our sound money:

  • creation of the Federal Reserve System, in 1913;
  • “shutting the gold window” to U.S. citizens, in April 1933;
  • forbidding them, at that same time, to own or use monetary gold; and
  • the final, complete repudiation of our currency’s redeemability, in 1968 and 1971.

So it turns out that, thru his misdirecting of the blame, Mr. Dranias is implicitly exonerating our leaders and the Fed, and irresponsibly risking our liberty. For the Constitution is not the problem. Disobedience to the Constitution is!

Tragically, the constitutional requirement to limit government to its enumerated powers has virtually disappeared from media-led political discussion, in favor of a dangerous “how much can we afford?” debate. Without an informed electorate forcing its representatives to adhere to the Constitution, the government’s substitution of irredeemable Federal Reserve bank notes for our once-sound monetary system has supported a massive explosion in the national debt. Our need is not to alter, but to return to, that wisely crafted form of government that our Founders outlined so clearly.

The Court’s Strange Argument in Obergefell

Same-sex-marriage supporters had generally expected the Supreme Court to pursue in Obergefell v. Hodges the line of argument usually taken in same-sex marriage cases that had been brought in state courts. That line was based on the Fourteenth Amendment’s “equal protection” clause, which forbids every state to “deny to any person within its jurisdiction the equal protection of the laws.”

The contention was that, given this clause, marriage laws should not treat heterosexual couples any differently than they treat homosexual couples. (One writer distinguished between this line of argument and that of “non-discrimination.” But since “equality” under the law implies non-discrimination in the application of the laws, most writers treated these two as basically the same argument.)

As at least one writer mentioned, the majority in Obergefell did vaguely “nod to” this previous line of argument. For example, the majority framed the situation thus in the Syllabus (i.e., summary) of their opinion: “The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.”

But their “nod” to equality seemed to be more or less window dressing for the real argument. As Chief Justice Roberts writes,

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. … Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position….

And anyway, in retrospect it is clear that that to use “equality” as a serious line of argument would have failed spectacularly. That becomes obvious from a reading of the four dissenting justices’ opinions.

One reason it would have failed is that non-discrimination or equality of access to certain legal benefits that the government has attached to marriage, though potentially an issue, was not what the petitioners were asking for: again to quote Chief Justice Roberts,

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.

A second reason for it to fail is that the idea of non-discriminatory application of laws of marriage, as that had been argued (successfully) in a number of “right to marry” cases, cannot apply to same-sex couples, because, as Roberts points out, they all had to do with “marriage” as traditionally defined:

None of the laws at issue in those [‘right to marry’] cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” … Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process.

A third reason for the “equality” line of argument to fail is that it could be possible to argue that same-sex couples did not have equal treatment under the marriage laws – and thus did not have equal access to its benefits – but only if the argument assumed the radically altered definition of marriage which was, in effect, what the petitioners were requesting. But in that case, the majority would clearly be arguing in a circle – which is a well-known type of fallacy.

Justice Alito saw this difficulty clearly (interpolations and emphasis ours):

Attempting to circumvent the problem presented by the newness of the [same-sex marriage] right found in these [recent state-level] cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental pur­pose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.1

Thus, the openly circular nature of the only “equal protection” argument they could have offered, made it inadvisable to use that line of argument at all seriously. The majority needed another main argument – or at least, one that would take the lion’s share of the scrutiny, so people wouldn’t notice the obvious weakness in the “equality” argument.

Switch to Plan B

What they did was bring in the idea of a “fundamental right to dignity”. It could hardly be denied, after all, that same-sex couples might feel deprived of dignity if not given access to marriage.

To find that “right” in the Constitution, the majority invoked the Fourteenth Amendment’s “due process” clause, interpreted as guaranteeing “substantive due process.” We wrote about “substantive due process” in our article about the idea of a “living” Constitution. This specious and empty concept, which has given rise to many federal court cases, was well summed up by Justice Scalia in his dissenting opinion in Obergefell: “It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.” It is thus just a blank check for judicial activism.

Though on the surface this seems a dubious change of tactics, at least a couple of scholars had noticed its potential, and already written journal articles in favor of it. Interestingly, these writers seem to be not only of a more scholarly ilk, but also more interested in tactics and bringing about radical change, than in same-sex couples’ felt need for “dignity” or “equality.”

Consider for example this abstract (summary) of a May 2012 journal article by Peter Odell Campbell:

This essay discusses Justice Anthony M. Kennedy’s choice to foreground arguments from due process rather than equal protection in the majority opinion in Lawrence v. Texas. Kennedy’s choice can realize constitutional legal doctrine that is more consistent with radical queer politics than arguments from equal protection. Unlike some recent critiques of Kennedy’s opinion, a queer rhetorical analysis of Lawrence reveals a futuristic, always-open-to-change vision in Kennedy’s rhetorical framing of constitutional law that is significantly less damaging to possibilities for “queer world making” in the United States than other contemporary US judicial arguments of and about sexuality.

For “futuristic, always-open-to-change vision” we can read, “such a vague notion of ‘due process’ it can never be pinned down or refuted.” But note especially the author’s dominant interest in “radical queer politics” and “‘queer world making’.” (The above article is entitled, “The Procedural Queer: Substantive Due Process, Lawrence v. Texas, and Queer Rhetorical Futures.”)

Another scholarly article, by Douglas NeJaime, appeared in The Yale Law Journal in Sept. 2013, with more reserved language than the one just cited but with apparently the same, mainly tactical motivation. It approved thoroughly Kennedy’s continuation, in United States v. Windsor (2013, striking down the Defense Of Marriage Act), of the “substantive due process” approach to gay rights that he had first displayed in Lawrence (2003). And the article seemed very optimistic that this approach would be a powerful one in future, same-sex-marriage cases.

The Subtle Fallacy in the “Substantive Due Process” Approach

However, if only very few commentators seem to have noticed a weakness in the “equal protection” line of argument, even fewer have noticed one fatal weakness in the “due process” line of argument (besides the widely doubted “substantive due process” notion). That overlooked but serious fallacy is related here also to the desire to change the meaning of “marriage.”

But in this argument, the fallacy is that the meaning of that key term is altered in the course of the argument. Such a key term’s meaning-change within an argument is called “equivocation” – another well-known type of logical fallacy.

The argument goes like this, after all: “The laws at issue have kept these petitioners out of the marriage bond. But marriage is a right that is so fundamental it should be available to all couples, regardless of gender. So, those laws should be thrown out.”

The overlooked problem with this “fundamental right” argument is that its first premise is clearly false unless in it the term marriage means traditional marriage (i.e., defined as between a man and a woman). Yet, the second premise is clearly false unless in it the term means something else, i.e., the watered-down meaning of “marriage” that the majority was arguing for. Thus, either the argument contains at least one false premise; or else, it suffers from the fallacy of equivocation.

This fallacy of equivocation would more likely have been noticed, if the “equality” issue had not been invoked also and claimed as relevant. So that is probably why the majority brought it up. By mentioning both lines of argument, and claiming a close connection between them, they used each one as an effective smokescreen for the (otherwise more obvious) fallacy in the other.

_____________________________________________________________________________________________

Note 1: To give the Devil his due, the majority did actually – in one place and in a seemingly token gesture (three sentences long) – argue that for all those millennia, the concept of marriage was really not “inextricably linked” to the idea of procreation. In short, the definition of marriage as only between people of opposite genders does not accurately define the essence of the age-old concept! The true meaning of marriage is no less applicable to homosexual couples! Here is their entire argument (pp. 15-16 in their opinion, emphasis ours):

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.

So, all judges down through the millennia stand corrected! But unsurprisingly, the audacious, little argument is fallacious: it attacks a “straw man”, i.e. a position its opponents do not really hold. It assumes, falsely, that the traditional definition of marriage entails “an ability, desire, or promise to procreate.” But in Justice Alito’s paragraph next after those just quoted, he states the traditional position more accurately (emphasis ours):

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

The definition of “marriage” that the States were using was thus concerned with, not “an ability, desire, or promise to procreate”, but “potentially procreative activity.” Thus, it has in view only opposite-sex couples, whose sex is naturally “potentially procreative activity.” But this definition, which is perfectly rational and historically correct, escapes completely the force of the majority’s straw-man argument, since it has in view any and all normal sex between persons of opposite genders (but leaves out of view, really, all abnormal, i.e. not-potentially-procreative “sexual” activities, e.g. anal and oral “sex”).

The Power of the Purse

“Sen. Jeff Sessions, R-Ala., said Congress has a duty to decide how money should be spent and can’t see how Obama would be able to say Republicans were shutting down the government when they were offering to fund all of it except for Planned Parenthood.” — Roll Call (9-10-15)

Senator Sessions points to an important strategy regarding how Congress should be using its power of the purse in today’s political climate, a climate dominated by an Establishment media that supports big government. Washington’s Roll Call continued by quoting Sessions directly:

There is no reason whatsoever we should fund Planned Parenthood. If you acquiesce and acknowledge the president is correct then Congress has no power whatsoever over the purse.… I just don’t see how that’s a losing issue. I think the president would look awful. He’s going to veto the Defense bill? He’s going to veto all these other bills? …We don’t need to be hiding under the table.

Sessions was referring to the president’s threat to veto any bill that would defund Planned Parenthood. And the Establishment media, the GOP leadership, and liberal politicians have created the impression that the only alternative to an unpopular government shutdown is a negotiated compromise or caving in to liberal demands.

A month earlier, liberal New York Senator Charles Schumer, the Number 3 Democrat, had made just such a claim — that liberal programs must be regarded as untouchable:

“You cannot hold the entire government hostage to make your ideological point and try to get your ideological way, and so Republicans are knowingly putting us on a path to shut down the government if they pursue this reckless strategy. And let me just say, it’s not just on this issue, they have four or five others. Any of them will be a path to shutdown and shutdown will fall on their shoulders. If they try to take hostages. If they try to add extraneous riders and say you have to keep those riders … they’re headed for a government shutdown,” Schumer said. “We hope they are not. We hope they’ve learned their lessons.” — Roll Call (8-4-15), “McConnell Says No Shutdowns as September Agenda Takes Shape”

However, Sessions was correctly pointing out that the Congress really holds the upper hand. It merely needs to use its power of the purse correctly, which it has not.

Power of the Purse

In The Federalist, No. 58, Father of the Constitution James Madison explained the awesome unused power of the purse, which the Constitution assigns to the House of Representatives:

The House of Representatives can not only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse — that powerful instrument [for] finally reducing … all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

Of course, the politics are more complicated today than in Madison’s time. Now many Americans depend on various federal programs and most Americans depend on the Establishment-controlled media for their information. In 2013, that media put the blame on a House unwilling to compromise, as responsible for shutting the government down, and the House backed down.

But the House had long ago forfeited the leverage Madison spoke about by regularly passing last-minute omnibus appropriations bills allowing the Senate or President to refuse the entire package as unacceptable. Instead, what a determined branch must do is insist that the other branches deal with the 12 individual appropriations bills. Even continuing resolutions, should they really become necessary and advantageous, should target only specific areas of appropriation.

Indeed, Sessions’ argument regarding how a determined Congress could defund Planned Parenthood needs to be heralded and applied to roll back a host of unconstitutional programs and agencies.

Of course, effective use of this power presumes that the House of Representatives has the backbone to roll back an out-of-control federal government, using the Constitution as its guide. Ultimately, that kind of backbone has to come from an informed public back home

Realistically, there is insufficient will in Congress today, even among Republicans, to roll back and eliminate unconstitutional programs and departments or to even defund many clearly subversive programs such as Planned Parenthood. To support that conclusion requires an understanding of the Establishment forces that dominate the leadership of both parties and the political environment that regularly drives the actions of most congressmen.

The Right Thing to Do

Nevertheless, Americans who want to see real change in Washington need to understand the right way for Congress to leverage its power over the purse in today’s adverse political climate. They must then insist that their congressman set the example even if he or she stands alone.

As a start, that means rejecting any omnibus appropriations bills.

Next, congressmen need to honor their oath to uphold the Constitution (and its limits) by supporting only individual appropriations bills designed to restore constitutional government.

That does not mean every supportable bill must go cold turkey on all unconstitutional spending. What it does means is that any appropriations bill deserving support must be part of a serious plan to roll back or eliminate unconstitutional spending and programs.

Many unconstitutional programs should be curtailed immediately. Let America enjoy and be encouraged by the benefits of early relief from their burden. Still other programs may need to be phased out over a few years to reduce disruptive hardships and to honor prior government commitments. But that action must be initiated immediately, not deferred to future Congresses.

In short, we need to reject the widespread notion that congressmen must compromise on vital principle, such as their oath to uphold the Constitution, in order to cut the best deal possible. That rationalization just keeps America on a route to disaster.

To be sure, more congressmen setting the right example means, for the present, that the GOP leadership will continue to build its majority with liberal support. The opening Roll Call report concluded: “[P]retty much every major budget deal since Republicans took back the House has required the votes of at least some of Democratic leader Nancy Pelosi’s flock.”

But those congressmen who set the right example also help drive the real solution — more congressmen marching to the drumbeat of the Constitution supported and pressured by informed constituents.

There is no constitutional justification for the Department of Housing and Urban Development ushered in by President Johnson, for a Department of Education, or for a Department of Health and Human Services — to cite just a few examples of where the Federal government has been allowed to exceed its authority.

America cannot survive with congressmen who accept these prior socialist inroads and destructive decisions as irreversible and work only to prevent the next socialist usurpation. As Napoleon correctly observed: “The purely defensive is doomed to defeat.”

No, the real solution must come from building an informed electorate that will demand that Congress use its power of the purse to restore the federal government to its constitutionally authorized limits. In the face of media misdirection, building that informed electorate is no easy task.

But it can be done by an organized minority of Americans following a sound plan and leadership, such as Freedom First Society offers.   And with the mess we’re in, there is simply no easy way out.

Nullification’s Five Deadly Secrets

An old theoretical “remedy” for overgrown or tyrannical federal government, namely the states’ “nullification” of unconstitutional laws or rulings, has gained some new advocates of late.

Of course, any proposed solution to that serious problem — and particularly one purportedly championed by Thomas Jefferson (see “The Founders’ Battle over the Nullification Heresy”), like this one — is worth examining by conservatives.

It is quite natural, therefore, to ask such basic questions about nullification as:

  • What does “nullification” mean, exactly?
  • Is it legal?
  • Is it even a viable remedy — especially in today’s political environment, dominated by a collectivist media?
  • What risks, costs, or downsides does it involve?
  • Are there preferable alternatives — some less risky, for example, or perhaps more legal?

Unfortunately, however, we find that the proponents of nullification avoid these responsible questions — or else, they answer them in a manner that evades the great mass of relevant evidence. Our purpose in this article will therefore be to answer these five questions, directly and clearly and with plenty of support.

  1. What does “Nullification” mean?

Nullification’s proponents have almost always used this term with a sweeping lack of precision.

We should point out first that, despite the form of the name, it does not mean simply a state’s pronouncement that they have found a federal law or ruling unconstitutional, and therefore null and void. Nobody has used the term, today or in the past, in that sense; it means more. 1

Thomas Woods, Jr., perhaps today’s foremost proponent of nullification, seems to have quite a shaky grasp of the term’s meaning. In a website that goes under his name, he writes, “State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.”

This definition is sadly inaccurate, both practically and historically. First, it assumes that the federal government is always dependent on state governments to enforce its laws. Second, it ignores the very long-established American judicial ruling that the federal government cannot require state governments to help enforce any federal laws. (This principle even has a name, “the Anti-Commandeering Doctrine.”) So, clearly that cannot be the sort of situation Woods intends “nullification” to address. 2

“Nullification” goes also beyond states’ “interposing” when the federal government exceeds its constitutional limits. This latter term was used by James Madison in the Virginia Resolution (passed Dec. 24, 1798), which was a response to the unconstitutional and quite tyrannical “Alien and Sedition Acts.” The Resolution stated that in such cases, states “have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.” (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Indeed, Madison had already decided that states do not hold a legal right to pronounce an unconstitutional federal law, authoritatively, to be “void, and of no force or effect.” Therefore, lest anyone draw the wrong conclusion, he had that last phrase struck from the Resolution before the Virginia legislature passed it. So, although both terms have often been used imprecisely, and sometimes been confused with each other, “nullification” goes beyond “interposition.”

What then is “nullification” – and where and when was the possibility first raised? Most likely the first discussion of the concept — though he did not use the term “nullification” — was in Federalist Papers 15 & 16, written by Alexander Hamilton.

In Paper 16, Hamilton distinguished carefully “between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” Hamilton continued:

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular [i.e., state] governments could not interrupt their progress without an open and violent exertion of an unconstitutional power…. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. (Interpolations and emphasis ours.)

The term “nullification” was coined in 1798, with the latter kind of law in view (specifically, the Alien and Sedition Acts: see “The Founders’ Battle 0ver the Nullification Heresy.”) Thus, the whole idea of nullification is to take the measures necessary to prevent the law from being enforced within the state; and that practically, such “measures” will entail the use of force — or at least, the credible threat of it. As Wikipedia points out,

In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” … George Washington was so appalled by [the resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” [34]  [Emphasis ours.]

Willingness to bring about one or both, however, is definitely characteristic of “nullification.” Thus, a recent example of actual nullification would be the move by several states to make it illegal — indeed, a felony — to enforce federal gun laws within their borders. So, that kind of action is what we will discuss in the remaining sections.

  1. Is nullification legal?

Even on the face of it, nullification seems illegal. In the case of unconstitutional federal laws, nullification would involve not only allowing disobedience to federal law, on the part of either the state or its citizens (or both), but also the enforcement of a prohibition on any enforcing of that federal law. Such behavior is in direct violation of the Supremacy Clause (Article VI, paragraph 2) of the Constitution:

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; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

What, then, about nullification of Constitution-twisting judicial rulings? Are we legally obligated to accept them, or can we discount and nullify them?

Explicitly, the Constitution gives federal courts jurisdiction in certain matters: it gives the Supreme Court original jurisdiction in a few matters, and appellate jurisdiction, “both as to law and fact,” over all other federal issues — including cases arising under the Constitution or the laws of the U.S. — “with such exceptions, and under such regulations as the Congress shall make.” (Article III, Sec. 2; emphasis added).

The inescapable conclusion is that authoritative decisions about the constitutionality of federal laws are the province of the federal courts, not the states. This is the conclusion of an overwhelming weight of authorities and experts – including, as we have already seen, James Madison. Both the Constitutional Convention, the state ratifying conventions, and over half a dozen Federalist Papers show clearly that the founders of our Constitution attributed this authority only to the federal courts. Also, this is how the federal courts themselves have repeatedly, consistently ruled.

Significantly, no other state went along with Kentucky or Virginia, in response to the 1798 resolutions. On the contrary, four states did nothing, seven states responded by formally rejecting the Kentucky and Virginia resolutions, and three states passed resolutions expressing disapproval of them. At least six states affirmed that the question of constitutionality of a federal law lies with the federal courts, not the states. (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Later, prior to the Civil War, a few states – both Southern and Northern ones — did claim the right of nullification. Its most notable invocation, supported by the Vice President, John C. Calhoun from South Carolina, was that state’s declaration that the federal Tariffs of 1828 and 1832 were unconstitutional and thus null and void within the state’s boundaries. This led to the so-called Nullification Crisis (1832-33). Although President Andrew Jackson was prepared to quash this uprising by force, that turned out to be unnecessary.

Also, some states tried to nullify fugitive-slave laws within their borders. The Supreme Court overturned these efforts, in such cases as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859), the latter of which was the Court’s most thorough treatment of the nullification issue to date.

Much later, in 1954, the Supreme Court’s school-desegregation decision in Brown v. Board of Education of Topeka led to a resuscitation of states’ claims to a right of nullification or interposition. Arkansas, Virginia, Louisiana, and Florida passed interposition and nullification laws. The Supreme Court rejected Arkansas’ law, on the usual grounds, in Cooper v. Aaron (1958).

From the Civil War until the 1950’s, however, virtually no one claimed such a right for the states. Starting from the drafting of the Constitution and until the 1950’s, the overwhelming consensus was that according to the Constitution, states do not have a right of nullification, for reasons we have stated. In short, it is illegal.

  1. Is nullification a viable remedy?

Given this understanding of what nullification is, and of its illegality, we are in a much better position to consider how viable an approach it is.

So what are the realistic chances for success, for a state wishing to resist the federal government forcefully? That depends of course on how determined the federal government is to enforce its law or ruling.

There are very few examples, historically, of a case where a state has put the nullification theory to a practical test. Perhaps the only example is Pennsylvania’s reaction to the first Supreme Court case that dealt with nullification, United States v. Peters (1809). The Pennsylvania legislature had originally passed a law claiming that a federal court’s decision in an earlier case had been unconstitutional and was therefore “null and void.”

In the Peters case, the Supreme Court overturned that Pennsylvania statute, denying that the state had the authority to nullify a federal court’s judgment. What happened next deserves careful consideration (the footnotes referenced are in the Wikipedia article we quote):

In response, the Governor of Pennsylvania called out the state militia to prevent enforcement of the Supreme Court’s judgment. However, the U.S. Marshal summoned a posse, carried out the Supreme Court’s order, and arrested the leaders of the state militia. The Pennsylvania legislature passed a resolution declaring the action of the Supreme Court unconstitutional, invoking states’ rights, and appealing to the other states for support.[42] Eleven states responded by disapproving Pennsylvania’s attempted nullification. No state supported Pennsylvania.[43] The Governor of Pennsylvania made a plea to President James Madison to intervene, but Madison affirmed the authority of the Supreme Court. The Pennsylvania legislature backed down and withdrew the militia.[44] Thus, Pennsylvania’s attempt to nullify the federal court judgment failed.[45]

Isn’t that the result any state can expect, if it tries something similar? Certainly it is, unless that state has much better support for its cause, from the American public in general, than Pennsylvania enjoyed in 1809.

But there is another crucial factor that nullification proponents conveniently ignore that virtually guarantees the outcome. The proponents refuse to acknowledge the determined “Big Government” forces, agendas, and deceptive tactics that have misled the public over decades into accepting the step-by-step erection of our current massive unconstitutional federal bureaucracy. The grip of those forces on our media and Washington would in no way be impacted by attempts at State nullification. In fact, attempts at nullification likely aid that agenda (see point 4).

So today, that “much better support” is too much to expect. The public is far too ignorant of and about the Constitution, and too gulled by the Establishment-controlled media, to form any correctly targeted, informed resistance — or even to be motivated to do so. (Nor would it help a state’s chances of success, in the case of nullification, that the federal government would be legally correct.)

Against a determined federal government, especially one supported by our Establishment-controlled media, today no state could reasonably hope to succeed in an attempt at nullification.

  1. What risks, costs, or downsides does it involve?

We should qualify our previous statement, however: no state could hope to do so, without first preparing the way by partaking in a wisely-targeted, well-organized, nationwide, successful effort to educate and inform the public.

In today’s environment, that educating and informing would certainly need to be about both our Constitutional system and the well-organized, well-funded, internationalist conspiracy seeking to destroy that system.

When considering the costs of any rational solution today, we must point out that taking part — and succeeding — in such a nationwide educational effort is a necessary price. Unfortunately, today’s proponents of nullification do not at all follow their hero Thomas Jefferson, in his almost constant emphasis on the prerequisite of such education:

The most effectual means of preventing [the perversion of power into tyranny are] to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes. — Thomas Jefferson: Diffusion of Knowledge Bill, 1779. The Writings of Thomas Jefferson, Federal Edition 2:221, Papers 2:526

If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be. — Thomas Jefferson to Charles Yancey, 1816. The Writings of Thomas Jefferson, Memorial Edition (ME) 14:384

If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions. — Thomas Jefferson to Edward Carrington, 1787. ME 6:58

I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. — Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

Most importantly, if such education were accomplished, there would be no need for nullification — completely legal recourses would be practical (see 5, below), thus avoiding the very serious downsides to nullification.

Even presuming an informed electorate, there is obviously a substantial amount of other cost or risk in any threat, or actual use, of force against a hostile government. Jefferson eventually recognized (see “The Founders’ Battle over the Nullification Heresy”), that an actual show of force might even turn potential comrades into our enemies.

But in addition to the obvious risks of military humiliation or defeat, there are some less obvious, yet impactful, downsides we should consider:

  • War is a changer of the societies that take part in it, even those to which it does not do great military or economic damage.
  • War is a ready excuse for the government to expand its power. In today’s environment, we cannot even rule out the possibility that the eventuality of civil war could be used by internationalist Insiders as a pretext to call for international military intervention. This could happen, on our own soil, under the aegis of N.A.T.O. or of the U.N. The loss of liberty that could readily ensue is a frightful prospect.
  • Another risk that attaches to any illegal activity, and which many people may not have considered, is loss of respect for the law, and for the enforcers of the law. These are real and quite corrosive effects that even a small amount of common or accepted law-breaking creates. We quote here from Freedom First Society’s founding book, Organize for Victory!

Otherwise responsible citizens weaken the rule of law, and so its protective shield, when they put themselves above the law by deciding which laws they will obey and which they will ignore. The rule of law is such an important asset in any civilization that even a significant corruption of the law does not justify either civil disobedience or treating the law with contempt.

Respecting the law does not mean that we should regard all laws as just and accept them as such. Certainly many official acts are not legal or even constitutional.   However, when there are problems within the legal system, rather than promoting cynicism, the responsible approach is to observe the law and work to make it more worthy of respect….

Legal systems are major social accomplishments. They are not put together during periods of chaos and confusion. We can preserve the umbrella of safety the law provides only by helping to see that the law is respected.

As a strategy, civil disobedience is not only wrong, it is also dangerous and counterproductive. Its widespread practice leads to anarchy, while providing an easy path to tyranny. In fact, lawlessness paves the way for a police state. (pp. 198,199)

  1. Are there preferable alternatives to nullification — say, less risky, and/or more legal?

Even Thomas Jefferson, the patron saint of the nullification proponents, came to recognize a serious risk of any insurrection (see “The Founders’ Battle over the Nullification Heresy”) and pointed us to a better alternative:

In this state [Virginia], we fear that [violations of the Constitution] may produce insurrection. Nothing could be so fatal. Anything like force [used against the violators] would check the progress of the public opinion and rally them round the government. This is not the kind of opposition the American people will permit. But keep away all show of force and they will bear down the evil propensities of the government by the constitutional means of election and petition. (Emphasis ours.) — Thomas Jefferson to Edmund Pendleton, Feb. 14, 1799. ME 10:105

It is truly odd how the proponents of supposedly easy, “silver-bullet” fixes like nullification tend to discount or overlook the mighty power of the ballot box. For example, those who call for a risky, Article V constitutional convention to create “term limits” for Congressmen, completely overlook the best term limits that anyone could devise: the requirement of Congresspersons to face periodic and fairly frequent elections.

Nor do our “silver bullet” proponents show much sagacity when they intone repeatedly their alarms of an “out of control” federal government. The fact that the same Congress which passes all these unconstitutional bills is for the most part repeatedly re-elected shows that the American people approve, to the extent they are aware, of the job their elected representatives are doing.

Even more overlooked, perhaps, are the great powers that Congress holds over the other two branches of the federal government. In regard to the Executive branch, for example, Congress holds the “power of the purse” which James Madison so celebrated. There is virtually no power that either the President, or the massive bureaucracy over which he or she presides, can exercise which Congress does not first approve and fund.

And most ignored of all, probably, is the power that Congress holds over the Judicial branch of the federal government. We could not begin to improve on the clear, full, and accurate description that Don Fotheringham has provided of this important power. We will only add that it is the constitutional, legal, safe, but fully effective means that our Founding Fathers built into our federal system.

What is missing then, from the legal, constitutional, relatively risk-free approach? Nothing — except for the necessary understanding and fortitude on the people’s part. As Thomas Jefferson warned, whichever approach we choose to uphold our constitutional liberty, we will be unsuccessful in our efforts unless we provide the needed educational undergirding.

To provide that educational undergirding is the basic purpose of the Freedom First Society. We invite all freedom-loving Americans to partake in the wisely targeted, nationwide sort of educational effort that is an absolutely necessary condition for the upholding and preserving of our liberty.

Notes

  1. Nor is nullification a mere legalizing, at the state level, of something the federal government makes illegal. That would not involve even the state’s making a pronouncement, about the constitutionality of the federal law. It would simply be its not duplicating the federal government’s outlawing (of whatever). Thus, for example, several states have legalized one or more forms of marijuana use, in contrast with federal law. It happens that in this matter the federal government has decided not to allocate its resources to the costly undertaking of restricting the use of marijuana. This makes it de facto legal. But this is not a case of “nullification” of a federal law; it is simply a case of the federal government biting off more than it can chew in outlawing something.
  1. Admittedly, there are cases where the federal government depends explicitly on state-government cooperation in order to carry out a program. This is the case with several parts of Obamacare. But that is the exception, not the rule: As just mentioned, it is a well established principle that the federal government cannot demand such cooperation. The states are quite free not to give their help. So, recent calls to “nullify Obamacare” do not involve “nullification” in its full ramifications: the Tenth Amendment Center describes them more accurately as “nullification in effect.”

 

 

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