Nullification And Moving Forward. The Tenth Amendment: What It Is And What It Is Not.

What is the Tenth Amendment to the United States Constitution? Equally important is the question, “What is it not?”.

The Tenth Amendment to the United States Constitution does not define the total scope of federal power as being that which has been delegated by the people of the several states to the federal government. I hear this often, and am guilty of repeating it myself on occasion.

The Tenth Amendment does confirm, affirm, state -choose your verb – that however one defines the “scope of federal power,” those powers falling outside that definition are reserved to the states, period, end of story. However, as stated above, the conundrum is that the Tenth Amendment does not define the scope of federal power; the rest of the Constitution does – or is supposed to.

That fact that the rest of the Constitution fails adequately to define the scope of federal power is a testament to some very flawed judicial interpretation and to a flawed Constitution that permits untethered judges to render such incorrect decisions with little or no consequence. The Tenth Amendment is no easy fix to our woes; indeed the glaring contradiction it represents – it reserves to the states a null set of powers – indicates the problem resides deep inside the Constitution itself. This is an implicit indication of where the problem lies and needs to be fixed. However, fixing the Constitution is no easy matter. Is there another way? The answer is yes and it’s called nullification. Before continuing, for an excellent survey of flawed judicial interpretation, or more accurately, the use of judicial fiat to centralize power in the federal government using whatever means one can get away with, read Kevin Gutzman’s The Politically Incorrect Guide(tm) to the Constitution (Politically Incorrect Guides).

Now for the obvious question: What next? As indicated, one answer is nullification, and it seems a much heavier lift to fix the Constitution than to nullify a federal law. As cries for nullification increase, so do the misguided statements that nullification is an obsolete theory. On one major conservative blog I was amazed to find a moderator reply to my call for nullification by stating that “nullification is for losers”. I would recommend this moderator watch the video Forgotten Lessons from the Nullification Crisis.

There are no illusions that nullification is easy, but no other solution exists to kill the disease of Statism once and for all. Relying on federal branches of government to limit their own powers is anathema to human nature and our founders knew that. It is a statement of fact, born out by historical evidence that, left to their own designs, the federal branches gather more power and often use each other in a type of power feedback loop to achieve these ends – sometimes with the best of intentions and often not. If the disease of Statism continues to exist, then sending “your type of politician” to DC places them front and center in a culture defined by the rules of Statism where the primacy of special interests and K-street lobbyists rests unchallenged and the tendency is for government to grow, and for power to corrupt. Stay in this system long enough and suddenly their living in a bubble completely disconnected from their own constituents. Killing Statism requires a step-by-step approach to taking back our own power by fighting back with sheer numbers and will. For a step-by-step process of exactly what needs to be done read Resist DC: A Step-by-Step Plan for Freedom:

1. State Legislatures need to pass 10 key pieces of legislation “with teeth” to put the federal government back in its place.
2. The people must pass the legislation through the Initiative process if any piece of the legislative agenda fails.
3. County Sheriffs must reaffirm and uphold their oaths to protect and defend the Constitution of the United States.

With the advent of the Tea Party Movement, many people have been asking how exactly we can make the above reality. What follows is Part I of the outline of that plan regarding state legislation, the action steps any concerned citizen can take to see this legislation to fruition, and the brief history and justifications behind each.

Step 1: Reclaim State Sovereignty through Key Nullification Legislation

Our Constitutional Republic is founded on a system of checks and balances known as the “separation of powers.” Rarely, however, are the states considered part of this essential principle.

Enter the “doctrine of nullification.”

Nullification is based on the simple principle that the federal government cannot be the final arbiter of the extent and boundaries of its own power. This includes all branches of the federal government. In the law this is known as a “conflict of interest.”

Additionally, since the states created the federal government the federal government was an agent of the states; not the other way around. Thus, Thomas Jefferson believed that, by extension, the states had a natural right to nullify (render as of no effect) any laws they believed were unconstitutional.

It is clear then that State Legislatures can stop the unconstitutional overreach of the Obama administration through nullification. Here is a list of proposed nullification legislation to introduce in all 50 States.

1. Nullification of Socialized Health Care [current efforts] [example legislation]
2. Nullification of National Cap and Trade [example legislation]
3. Federal Enumerated Powers Requirement (Blanket Nullification) [details]
4. Establishment of a Federal Tax Escrow Account [example legislation]

If imposed, socialized health care and cap and trade will crush our economy. These programs are both unconstitutional, creating government powers beyond those enumerated by the Constitution. If those programs are nullified, it will give the individual states a fighting chance to detach from a federal budget in freefall and save the economies of the individual states.

For our Constitution, the process of ratification was not accomplished by a national referendum. If it had then it would be clear the Constitution itself created a United States where the states were tightly bound to a strong central power. Instead, the ratification of our Constitution required each individual state, via state conventions, accept the document. This is rather explicit in demonstrating the recognition by our founders the states were primary and sovereign, a fact often overlooked by detractors of nullification on both the left and the right.

However, due to the issues relayed above with the Constitution itself and with judicial activism, this concept is now turned on its head. Our founders set out with the intent to setup a form of governance that was the opposite of the British system. They believed the British system, where sovereignty resided in the hands of a few in the body of the British Parliament, was directly responsible for setting the conditions leading to the War of Independence. It makes sense our forefathers would set out to mitigate any ability of a few to abuse power and lord over others. However, today we find ourselves in the same position, with a small country off the coast of France replaced by a small city called Washington DC. The beast now resides within our own borders.

Continuing with Resist DC: A Step-by-Step Plan for Freedom (emphasis mine):

Next, blanket nullification.

The Federal Government, particularly the House of Representatives, needs to abide by its own rules. In particular, House Rule XIII 3(d) specifically states that:

“Each report of a committee on a public bill or public joint resolution shall contain the following: (1) A statement citing the specific powers granted to Congress in the Constitution to enact the law proposed by the bill or resolution.”

Needless to say, this rule is generally ignored. The idea behind blanket nullification is that if the Congress does not specify the enumerated power it is using according to its own rules, or the power specified is not one of the enumerated powers granted to Congress in the United States Constitution, then the “law” is automatically null and void.

Lastly, the federal government cannot survive without money. I know that seems obvious but many states are missing the opportunity to use money as an incentive for the federal government to return to its proper role. Most visibly, states help collect the federal portion of the gasoline tax. That money should be put into an escrow account at the state level and held there. The Escrow Account legislation includes a provision that all consumer, excise, and income taxes payable to the federal government would go through this account first. This would do two things. First, it would give states the ability to collect interest on that money to help offset revenue shortfalls. Second, it would allow states to hold that money as long as needed as an incentive for the federal government to return within the enumerated boundaries of its power.

One can probably tell how important the last paragraph is. Never underestimate the power of the purse string. Should a state continue to stand firm in the face of this threat, then look for federal troops as the next ace up the federal sleeve. This ties in well with my issue of “blanket nullification” and some of the assumptions from the resist DC post from the Tenth Amendment Center. Namely the statement:

The idea behind blanket nullification is that if the Congress does not specify the enumerated power it is using according to its own rules, or the power specified is not one of the enumerated powers granted to Congress in the United States Constitution, then the “law” is automatically null and void.

Recall above the recognition the Constitution fails to adequately define the scope of federal power and it is this flaw that allowed lose and sometimes very highly questionable judicial interpretation to move us away from our founders vision as defined above – sovereign states United under a weaker federal power. Recall the Tenth amendment reserves to the states a null set of powers, so one could argue that any enumerated power Congress is using is valid, given the Supreme Court says it is so, even though it is an undeniable truth the Supreme Court is not the final arbiter of the constitution, it is the states – another fact often overlooked or unknown by a majority of U.S. residents.

So how does one handle this issue, along with the issue of Tax Escrow Accounts and the threat of federal troops for the offending states that would dare to stand up to the federal government? The answer is easy in principle, but difficult in its implementation. Get enough states to do it, simultaneously, and the federal government will find itself unable to enforce the now nullified legislation. This is where the Tea Parties could shine, but the issue now becomes one of coordination between multiple local Tea Parties and, sans any organization, this would be difficult to impossible to pull off for one major reason.

As I have personally been verbally lashed at the very mention of organization within the Tea Party – it is not grass-rootsy enough – the fact this is being ignored is the Achilles heal of the movement. As no major endeavor, from companies, to sports, going to the moon, military campaigns – you name it – has ever been highly effective or successful without a leadership structure, I find myself still amazed at how ideology is trumping efficacy and pragmatism is nowhere to be found. The movement cries for top down leadership structures because the old “storming the castle gates” approach of faxes, emails, town halls, and carrying signs did not stop ObamaCare. What would make one think the same approach will work a second or third time? While our troops must operate under rules of engagement dreamed up by lawyers and politicians, I find it quite amazing that a movement with enough potential to kill Statism once and for all decides to author its own rules of engagement to virtually ensure its own failure. Time is not on our side. Throwing the bums out will only replace them with new bums. If you don’t believe the system of Statism will corrupt “your type of politician” I have a few sectors in the Gulf of Mexico to sell you for deep water oil drilling. Trust me, its a venture with a strong and sure future under this administration.

The real grassroots job is to kill Statism. This is a local issue, but also a national issue. As indicated above, enough states must do this to send a very strong message to DC: regardless of how much you believe you have the power, we are here to show you that you don’t and we are willing to starve you of money and ignore you if we have to. However, this message can only be sent if the flotilla is full of ships, which requires a national organization to work down to the local level and coordinate. If you want an idea of the power of just saying no on a massive enough scale read Seriously: Marijuana Will Kill ObamaCare.

Read the rest of Resist DC: A Step-by-Step Plan for Freedom, where step 2 is outlined: Erect an impenetrable wall around the County Sheriff and the 2nd Amendment. I look forward to part 2 of the series from Matthew Shea, State Representative in Washington’s 4th District. I also hope to hear from members of the Tenth Amendment Center about the concerns mentioned above, particularly my exceptions to some of the representations of what the Tenth Amendment says. Perhaps I am wrong in my assertions.

So I say forget about lawsuits and “taking the party back”. While admirable, they do nothing to address the real problem – that of Statism. Even under Ronald Reagan government grew. Think about that for a moment. Budget cuts are a myth. During President Ronald Reagan’s tenure the rate of increase in government spending slowed but continued its upward trend. While defense spending played a large role, non-defense spending was 17.5% of GDP in 1985 compared to 10.1% in 1965. In the aggregate there was neither tax nor budget cuts during the Reagan era. Spending grew faster than taxing, but both lines continued to grow. While some welfare spending was cut slightly, some spending increased by as much as 18% from 1981 to 1989.

As an example, the downside to lawsuits against the individual mandate on ObamaCare are rarely, if ever, discussed. What if the mandate is struck? What could be the unintended consequences if the majority of the edifice of ObamaCare stands sans the mandate? Is it possible this would hasten the arrival of either a single payer system or government backed insurance cartels? The possibility is very real that it would.

Should we then rely on outright repeal by the GOP made possible by gains in November? Even if those gains are realized it would be a stretch to believe them accompanied by a necessary and complete spine transplant. Waiting for 2012 provides the juggernaut that is ObamaCare more momentum, making it almost impossible to repeal. Already the effects are being realized in as doctors drop or scale back medicare participation and physician owned hospitals, not allowed to grow under the new bill, are being sold to larger regional hospitals. Now you also have the Department of Justice telling doctors to accept ObamaCare prices or face jail time. Gird yourself for a massive exodus of physicians, who are treated now more like second class citizens than members of society who deserve our respect and admiration. Quality falls, rationing begins, and yes there will be death panels. If you don’t think so, just check out how Canada and Great Britain are doing with their systems.

As time passes, more effects pile on until reversing them is either impossible or carry their own set of unintended consequences. For one to believe the political will to repeal or defund ObamaCare in either 2010 or 2012 is a reality, I only state that such a belief is dangerous as it tends to reduce the use of other effective methods by diverting valuable resources and such an approach has no point of historical reference that indicates anything other than a failure of this tactic. To rely on these strategies is, quite simply, a gamble – a large bet on the future of a Republic born and sustained by the blood of patriots.

Just peruse the following two articles to understand just how risky it is to depend on politicians to save our collective butts from the disasters that are ObamaCare and Statism:

• Who lost healthcare.
• Healthcare, Senator Jim DeMint And The Establishment GOP

In the end, the problem is profound and there is no easy fix. That is just the fact.

A friend and DC inside source once wrote to me in an email:

We have turned into a talk nation not an action nation. All we do is talk, talk, talk, whine, complain, cry and moan, scream,and shake our fists. If we are serious, we will start taking action.

…We need to become passive-aggressive with the feds. Ignore them when they demand you do something. That is what the hinterlands did to Moscow. The Soviet Union did not collapse because the center didn’t hold — it did. The Soviet tyranny collapsed because the hinterlands simply ignored the center and the periphery melted away. Now, the problem is of course that the feds have accumulated enormous power and the minute they threaten to use it, Americans and their state politicians fall right in line.

If people really were fed up they simply would not purchase insurance and they would refuse to pay the fine. Would states come to their defense, and if so how, when the feds tried to collect the fines or render punishment for refusing to pay? Who knows? Has anyone even thought about how the states could come to the defense of its citizens who individually decide to defy the feds in this regard? See what I mean? Talk, talk, talk.

This is not to say that action is not being taken. What many insiders are beginning to notice is that the wrong type of action is being taken and our hats hung on a two-legged rack. Lawyers, judges, and federal politicians are not going to save you from enormous deficits and every other symptom of Statism. Even getting state officials to back you up is going to be a heavy lift. It’s time for the Tea Parties to do what they do best and apply pressure, just not at the national level but the state and local level. AND they are going to have to do it in every state and know when the flotilla is ready to embark on its march to DC to take this country back. I cannot reiterate enough this requires national leadership as well as local leadership.

Dick Morris writes on the Obamanomics Recession with a priceless analogy.

It should be evident to all that Obamanomics is a disaster. It reminds one of nothing so much as the medieval practice of bleeding the patient to make him well by expelling the evil spirits that dwelt within. When the patient did not recover, they just bled him more and, when he died, they just said that the spirits killed him. The practice of spending, borrowing and then taxing to fuel job growth is the modern analogy.

Let the heavy lifting begin or the spirits will take away a country this time. No more bleeding the people.