Celebrate by enforcing via Nullification
by Michael Boldin
First, I expect to hear a speech about the greatness of the Constitution and the wisdom of the Founding Fathers.
Second, that speech will likely cover the many ways that today’s Federal government is nothing close to the Founders’ constitutional vision. I’d hear about some of the ways the supreme court has flipped the constitution on its head, and how politicians from both major political parties only care about the constitution when it fits their political goals. They ignore or violate it with impunity when it doesn’t.
The last thing that pops in my mind when thinking about a Constitution Day speech is the fact that I really don’t have any interest in hearing that particular speech. Look, I already know that the Founders had a far different vision for this country. I know that the legal meaning of the Constitution is wildly different than what the courts and the experts tell us it means today. I know that the federal government today treats the Constitution more like a roadblock rather than a set of chains.
I’d be surprised if anyone attending a Constitution Day speech thought much differently. No, I don’t think anyone willing to spend their hard-earned money to go to an event like this goes to celebrate the awesome job that federal politicians are doing to follow the rules given to them.
I’m not here to lament our loss of liberty. I’m not here to pontificate about how things should be. And I’m certainly not here to win a campaign, or get you to buy something. I’m here on a mission.
While I consider educating people on the Constitution to be an important part of my work at the Tenth Amendment Center, that’s not what my primary mission is all about. So if you want to learn about general founding principles, or war powers, or the incorporation doctrine, you can certainly find all that great information on our website.
Today, I want to celebrate the Constitution. And the only way that I feel I can properly do that is to share with you the real path to enforcing it – something concrete that you can start working on tomorrow morning.
So let’s get to work, shall we?
WHAT DO WE DO ABOUT IT?
So when the federal government violates the constitution what is the first thing we do about it?
Do we lobby congress and ask federal politicians to limit federal power?
Do we go to federal courts and ask federal judges to limit federal power?
Do we vote the bums out in the hopes that the new bums will limit their own power?
Thomas Jefferson and James Madison both warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers – that power would endlessly grow…regardless of elections, separation of powers, courts, or other vaunted parts of our system.
They were right. For a hundred years, we the people have been suing, and marching, and lobbying, and voting the bums out – but yet…year in and year out, government continues to grow and your liberty continues to diminish – and it doesn’t matter who is the president, or what political party controls congress – the growth of power in the federal government never stops.
AN ABSURD ANALOGY?
Let’s say, for example, the CEO of Target convinced his company to allow him to do things they’d never done before. He withheld money from people’s pay checks with a promise that Target would pay for their retirement and healthcare. He’d build a Target school system and give money to bankrupt suppliers to make sure that people wouldn’t lose their jobs.
But eventually, it became clear that the promises cost far more than the economic reality permitted, and the business was operating on an insurmountable deficit. And, on top of it, he was running a Ponzi scheme with the retirement money – spending it on all kinds of military hardware so he could invade Walmart.
What would the shareholders do? Well, that guy would be fired, right?
But what if the replacement did much of the same, but even more. And then the next one promised to cut back slowly, but expanded yet again. Meanwhile, over the years, most of the board spent their time explaining how these things were just temporary, or how they actually were good for you.
Well, it wouldn’t take too long for that company to be out of business, because it would lack the force of taxation or a central bank to compel its shareholders and innocent bystanders to keep funding it.
While I can’t imagine this happening anywhere but government, this absurd analogy should give you a clue about how to deal with Washington, D.C.
So what DO we do about it?
A good place to start in determining how to enforce the Constitution is with the guy who’s commonly referred to as the “Father of the Constitution.” While there’s some debate that James Wilson was actually far more fitting of that title, Madison was obviously quite influential.
The question, once again: When the federal government violates the constitution, what do you do about it?
Here’s what Madison had to say in Federalist #46. The Influence of the State and Federal Governments Compared:
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Let me translate. Madison said that when the federal government passes an unconstitutional measure there are powerful methods to oppose it – amongst the people and in the states. He also pointed out that those methods were available even for warrantable, that is constitutional, measures.
Madison told us of four things that should be done to resist federal powers, whether merely unpopular, or unconstitutional.
1. Disquietude of the people – Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That leads to the next step.
If I asked some girl out when I was single, and she thought I was repugnant, what would she do? She obviously would do the same as what Madison advised next.
2. Refusal to co-operate with the officers of the Union – Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
3, The frowns of the executive magistracy of the State – Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action.
4. Legislative devices, which would often be added on such occasions – Madison keeps this open-ended, and in the years soon after, which I’ll cover shortly, we learn how both he and Thomas Jefferson applied this step.
Madison also told us that if several adjoining States would do the same it would be an effective tool to stop federal acts. To repeat, he said that doing this “would present obstructions which the federal government would hardly be willing to encounter.”
Judge Andrew Napolitano agreed recently and said that people need to stop enforcing unconstitutional federal laws. He also said that if you could get an entire state doing this, it would make federal laws “nearly impossible to enforce.”