Note: This article is the third in a three-part series that discuss the issue of rights, the intended formation and organization of our government and how that relates to the issue of state nullification and interposition, among others, in the future. This 3rd part should clearly demonstrate why the only government organization that will work for the long term (the only one designed into the Constitution) and without killing hundreds of thousands, if not millions, of our citizens through government-initiated violence, is distributed not centralized operation. Readers may first wish to review Part 1 and Part 2, prior to continuing with this Column.
When one has a common (objective) view of rights and liberties, it immediately creates an understanding of the fallacies and Constitutional usurpation two centuries of bad legislation and jurisprudence have wrought upon our governance at all levels. The lack of understanding of the iron-clad nature of individual rights, when given both a systemic and systematic review, is immediately shown as the proximate cause of why this Republic is inexorably failing in the modern era.
It is likely that far less than 1% if the population would pass even the most rudimentary civic literacy test with regard to individual rights and liberties and the free-market economics that extend from them. Even fewer understand the difference between rights and ‘delegated powers’ and how that difference directs the formation and organization of our government, as explained in Part 1 and 2 of this series.
A key part of any test would be understanding how an individual’s fundamental rights and liberties are extensively translated into powers granted under rule of law, governance, the implementing structure and limitations of our Republic. Add to that, a lack of how the essentials of free-market, voluntary exchange work in conjunction with individual rights and liberties, and it’s no wonder the 21st century is so messed up in the United States of America.
Recently, I was directed to an Idaho Law Review paper on state nullification written by a J.D. candidate, Ryan S. Hunter. The 67-page tome is extensively footnoted. It was primarily written to discredit the recent use of executive authority alone by Idaho’s Governor, to “nullify” ObamaCare.
However, in the course of making that argument against a “peculiar” use of state nullification, the Law Review paper then developed as a general attack upon the very concept and practice as not a legitimate due process tool of the state legislature and executive working together.
While hugely overblown, with frequent resort to bombast and hyperbolic assertion, Mr. Hunter’s basic point is that nullification via a Governor’s order is, at best, completely out of the realm of possibility. It is true, that without the full backing of that state’s legislative authority the Governor simply can’t assert a claim to nullify a federal law under his own authority. On that point, we agree. However, it is in the further general assertion; that a state’s legitimate nullification of federal overreach is “intellectually and morally bankrupt,” where Hunter’s legal theory so obviously flies off-the-rails.
That assertion is a direct insult to the Founder’s construction in organizing a Republic and the initial delegation of power the People to the states. It also stands in contradiction to the fact that all rights, whether temporarily granted as powers or reserved rights, still remain firmly within the grasp of the people who delegated them in the first place. That is especially so when it is accepted as axiomatic that the most important government is the one closest to the people.
If one understands rights in the “self-evident” context, given in the first two installments of this series, then it becomes easy to see how Mr. Hunter and so many others go so far awry. They don’t believe (or, perhaps, don’t objectively understand) that what makes our system work so well over the long term is the inherent nature of individual right. The functional reality is that each of us own all aspects of ourselves, regardless of how badly our government minders wish to change that perceptually. No other human or government (as an artificial creation of people), and in the absence of alienable voluntary exchange, owns a living person.
From that starting point, nor do they appear to understand or believe that delegations of power from those rights are merely contracted temporary leases or loans, by their very nature. Instead, they appear to view them as a complete and permanent “surrender” of rights, exactly the opposite of what it truly is.
It is surprising (shocking, actually) how few “constitutional scholars,” lawyers and other so-called “students” of the Declaration and Constitution fail (or perhaps, purposefully, to acknowledge) to understand the following words in the Declaration:
“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 form, as to them shall seem most likely to effect their Safety and Happiness…..But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” (emphasis added)
Most in those same groups seem to fail (perhaps, intentionally) to understand those words above trace directly through the Articles of Confederation to the construction of the organic Constitution, its amending process and adopted amendments and, particularly, the 9th and 10th amendments of the Bill of Rights. Today it’s a given that most of the general population have no idea, which is obvious from polling and “on the street”interviews that populate thousands of Youtube one could watch.
Or that, without a specific, subsequent legal construct for the “reserved” rights and powers, those who try to enforce centralized control pretend those reserve rights and powers do not exist. Those groups simply ignore wise words that, all-too-infrequently, are even written into jurisprudence such as the following:
“The equality of the rights of citizens is a principle of republicanism. Every republican government is duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the (union of) United States is to see that the States do not deny the right this amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.” United States v. Cruikshank, 92 US 542, 555 (1876) (emphasis added)
However, both in the construction and the attempts at misconstruction or outright usurpation through legislative or judicial fiat, it remains crystalline transparent that therein lies the origin and the power of both Jury and State nullification. It remains, regardless of any of the attempts to obscure or ignore, the original intent since inception to ultimately protect the Republic. Or, in the attempts by lawyers, legal scholars and generations of jurisprudence to ignore them.
Even very recently, in contrast to the almost typically dysfunctional nature of the courts, the federal district court in Ohio issued a ruling in “Citizens in Charge, Inc v Husted” that traced to that simple principle. The judge in the district court stated the Secretary of State in Ohio is personally, legally liable for not protecting reasonably understandable, constitutionally-protected rights of the citizens!
Having only a minimum legal framework, because of both being frightened by the existence of such a thing as “reserved rights” and never wishing to acknowledge their existence along with the inherent rights and powers of the people and the states, they simply deem such rights and powers; “extra-constitutional.” On the contrary, it is the fact that protection of reserved rights and powers are also so inherent in the construction of the document, that they do not wish to acknowledge their existence.
The outcome of the Civil War and it’s subsequent amending misconstructions, judicial fiat and punitive “Reconstruction” cannot erase the immutable and self-evident truth on the nature of rights, liberties and the principles originally enunciated to create such government. Those rights, liberties and principles pre-date the The right and power to establish such government automatically inscribes the right and power to abolish it.
However, when one delves further into the writings and thoughts of those responsible for the misconstruction and usurpation, the agenda becomes more clear. Regardless of whether they reside on the ideological Right or Left the purpose of those agendas is the top-down centralization and nationalization of governance. In that agenda the individual, the people and their respective states continually “lose” rights by unknowingly surrendering or giving them away to both agendas in a continuous, incremental erosion. That is the single most significant reason why America looks and operates as it does today.
That agenda or hapless misconstruction takes on many forms. In Mr. Hunter’s review, he takes issue with Jefferson’s “Compact theory” of the states. The premise is that one state or multiple states cannot declare laws or acts of any branch of the federal government, passed by Congress or upheld by federal courts, to be null and void even if they are patently un-Constitutional. That view is typically reliant upon two ideas, to wit:
1) The idea that Article VI, USC trumps any state or individual act because the Constitution is the “Supreme law of the land.” That view, of course, ignores the plain language of Article VI:
“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…” The key phrase in that clause is, of course, “…in Pursuance thereof;…”
Any law made by Congress or decided by the courts which is not made in Pursuance of the Constitution is, in fact, no law at all. However, ignoring that phrase, the opponents view of Article VI renders the Constitution into a nice set of guidelines that are in no way enforceable restrictions upon the federal government.
2) The 2nd idea Mr. Hunter and others with that agenda point to is the wording in the Preamble that “We the People” produced the Constitution “…..in order to form a more perfect Union,…” and that it is not a creation of the states.
Further, the idea that the states can only be represented collectively is directly refuted by the fact that each state admission convention decided voluntarily for whether or not to enter into the union compact. The “people” of the other states do not determine what laws may be enacted or not in my state. Only the people and legislature of each state can do that for themselves. The only other power to do that is via the courts when tested against the specific enumeration of powers in the US Constitution.
It is also a fact that the federal government is a ‘continuous’ creation of the states, not the other way around, as the current “nationalist/progressive” movement wishes to implement. Can the federal government abolish any or all of the states? No it can’t. Can the states alter or abolish the existing federal government? Yes, they can. That should end the discussion right there. Only the terminally confused will try to conflate the Union with the federal government. They are two separate things.
The further creation of states, after the advent of the Constitution, in no way diminishes their co-equal status as “free and independent” with the other States of the Union. They remain superior to a subservient federal government created under the Compact of the Constitution.
There’s three central themes that flow throughout the Law Review paper. All three abrogate its general premise of the illegitimacy of Nullification and Strong Interposition:
1) “The majoritarian view always wins,” rather than the rule of law in protection against legislative “legalism.” This is a patently and obvious un-American view of the Declaration, the Constitution and the rule of law.
2) Previous failed attempts at nullification or interposition preclude any and all future use of those mechanisms. On the contrary, the old Latin phrase also proves true here; “abusus non tollit usum” or “abuse (or misuse) does not preclude proper use.” Nor is it true that because one generation, even the founder’s, failed to get it right precludes future generations from implementing inherent and “reserved rights,” whether or not expressly outlined in the Constitution at any time.
They’re neither ‘rights’ nor ‘reserved’ if any one generation can surrender them to government in such manner as to not be reclaimed by any subsequent generation of the People. If rights and powers, identified or reserved, were permanently surrendered, then how could “….all men are created equal…” be true or that all states are admitted on a “co-equal footing?” Such principles are not accidents.
3) The conflation of the use of enumerated and legitimate powers of the federal government, with un-enumerated and illegitimate usurped powers, as being of equal status. Also, the companion conflation of all attempts at nullification as always being synonymous with “secession.”
The last items in 3) are classic misdirection. Each of the early attempted uses of nullification regarded clearly constitutional powers of the federal government over Indian affairs and treaties or federal tariffs. The use against the Fugitive Slave Act of 1793 was also a legitimate use. It was circumvented by the Supreme Court’s clever circumlocution that tacitly adopted the rubric of “un-cooperative” federalism in order to stop a larger legitimate state nullification movement. And even Wisconsin’s successful Nullification of the newer Fugitive Slave Act of 1850 was dismissed with “…the firing on Fort Sumter made the decision and the whole issue a moot point.” (See theme 2 above.)
In Coyle v Smith (1911) the Supreme Court held that preventing the state of Oklahoma the power to locate its own seat of government deprived it of powers which all other states of the Union enjoyed, and thus violated the traditional constitutional principle that all new states be admitted “on an equal footing with the original states”. As a result, the provision of the enabling act which temporarily restricted Oklahoma’s right to determine where its seat of government would be was unconstitutional. As stated by Mr. Justice Lurton:
“Has Oklahoma been admitted upon an equal footing with the original states? If she has, she, by virtue of her jurisdictional sovereignty as such a state, may determine for her own people the proper location of the local seat of government. She is not equal in power to them if she cannot.”
“To this we may add that the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears, we may remain a free people, but the Union will not be the Union of the Constitution. “
Justices Lurton and Chase were not implying anything. They were stating directly that; just as the original 13 states weren’t subservient to the Crown or the British Empire anymore, later states were not to be subjects of the earlier states OR the Federal government. A very simple principle, indeed!