Keep the Feds in Check with Nullification; Not Amendments | Eastern North Carolina Now

    Mark Levin, who wrote an excellent book "The Liberty Amendments" to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers "kooks." His solution is to keep the federal government in check by a series of constitutional amendments.

    My question to Mr. Levin is this: Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to "alter or abolish" government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean? It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that's why those amendments are included... They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

    For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It's time those who have had their rights trampled upon step up and say NO MORE. Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence. As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter. The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

    The Rightful Remedy is Nullification and NOT constitutional amendments. Don't get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy. But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People. Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to "Please, please, please try to respect the Constitution."

    It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core. John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: "What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land... It is stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves." Thomas Paine, in his Rights of Man, wrote: "A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either." And in 1782, in his Notes on Virginia, Thomas Jefferson explained: "The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights."
Thomas Jefferson: Above.
    I believe Mark Levin is dead wrong in attacking the Nullification movement. I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution - when the Constitution was never legally amended to get us in the predicament that we are in - then he has a flawed understanding of our founding principles and the American founding philosophy of government.

    He presupposes that only the People and the States need to abide by Constitutional limits. It doesn't matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms. Mr. Levin is so hung up on "what the People and the States can constitutionally do" to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote "The Liberty Amendments," the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual. A government that is supposed to serve the People ("that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...") should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from "altering" their government so that it isn't "becoming destructive of its ends." Nullification, on the other hand, checks the government at every instance. It puts sovereign power in the hands of those who were the intended depositories - the People.

    Nullification is the magic bullet. As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

    Opponents of Nullification want to take this remedy away. They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on. First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause. They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement "badge" that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don't get the urge to second-guess the actions and intentions of the federal government.

    Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld. Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States. Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws. Opponents of nullification claim this is the constitutional.

    They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

    Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim. The two principles actually work hand-in-hand. The Supremacy Clause states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn't say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority. And that's where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People. A free people should never have to suffer the enforcement of unconstitutional laws on them.

    Unfortunately, the government doesn't want to recognize the inherent limitation in the Supremacy Clause - that only those laws made "in pursuance" to the Constitution are supreme. It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause. People want Liberty. Governments want concentrated power. These are competing goals. Our Founders understood that. And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government. "Reserved" powers meant exactly that. Those powers not expressly delegated to the federal government are reserved by the People and the States.

    In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn't have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

    It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history - the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

    In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion. That opinion held: "The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously."

    Chief Justice Warren continued: "It is necessary only to recall some basic constitutional propositions which are settled doctrine. Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation,' declared in the notable case of Marbury v. Madison, that 'It is emphatically the province and duty of the judicial department to say what the law is.' This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States 'any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 "to support this Constitution..... If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery."

    Justice Frankfurter, concurring in the opinion, wrote separately: "The States must yield to an authority that is paramount to the State."

    Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based. Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

    The Supreme Court likes to cite its early decision in Marbury v Madison (1803). Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution. And it's no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government. Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers. Nullification doesn't ask us what the Supreme Court says on a particular matter. Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority. Nullification is an implied principle. It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples' rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

    As we all know, We the People are vested, under Natural Law and God's Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the "consent of the governed," by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights). The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to "alter or abolish" their government when it becomes destructive of its ends. As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles. The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain "declaratory and limiting phrases" - which would be our Bill of Rights. Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively. This is precisely the type of government referred to and envisioned in our Declaration... one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it. But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power. That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power. Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

    It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects. In particular, the decision emphasized and reinforced two key constitutional themes:

    (1) Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified). Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don't magically change definition as the times change and the Constitution doesn't evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. "That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it."

    (2) Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party. Anytime a justice veers from his oath and doesn't interpret the Constitution according to strict construction and original intent he commits TREASON. "The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime."

    On the other hand, Jefferson disagreed with Marshall's reasoning with respect to judicial review, the doctrine the case is known for establishing. In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. "Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."

    Marshall continued: "An act of the legislature repugnant to the constitution is void. This theory is essentially attached to a written Constitution." In other words, when the Constitution - the nation's highest law - conflicts with an act of the legislature, that act is invalid. Jefferson criticized the decision by arguing that "the Constitution has erected no such tribunal" with such power. He argued that "to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy."

    It's worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of "judicial review"). There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

    As one lawyer and opponent of Nullification writes: "Anyone who believes that Nullification is legitimate either 1) Hasn't read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside." Obviously this lawyer hasn't read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself. Both warned about putting too much power in the federal judiciary.

    Thomas Jefferson wrote to William C Jarvis in 1820: "To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps - and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal. I know no safe depository of the ultimate powers of society but the people themselves."