By Michael Boldin
Tenth Amendment Center
When I think of a “Constitution Day” speech, three things pop into my head.
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.”
What’s important to note here, are some glaring omissions. The powerful means that Madison told us would be used to oppose federal power successfully did NOT include federal lawsuits in federal courts. He also did NOT include “voting the bums out” as a strategy, either.
Compare that with how people generally respond to what they consider unconstitutional or unpopular federal acts today.
The first thing I tend to hear from people who are opposed to a federal act is the “vote the bums out” mantra. We’ll fire congress, right?
Or some people tell us we have to sue and let the courts decide.
I’ve got some news for you. There’s nothing from the founders – anywhere – in which they tell us that our first response to extreme, repeated violations of the constitution and liberty is to vote the bums out, or sue the feds in federal court. Nothing.
Thomas Jefferson followed up on this in 1798 with the same kind of advice. That year, the Adams administration passed a wildly unconstitutional attack on the freedom of speech with the Alien and Sedition Acts. In response, while sitting as vice-president, Jefferson secretly drafted the Kentucky Resolutions which were passed in November of that year. Here’s a little of what Jefferson had to say:
“The several states composing the united states of america are not united on a principle of unlimited submission to their general government.”
“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy”
“that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
Madison was consistent in his views on this. In 1798, he also drafted and help pass something known as the Virginia Resolutions, a state-level “legislative device” in response to the Alien and Sedition Acts. Here’s a key part:
in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, 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.
Like Madison advised in Federalist #46, both he and Thomas Jefferson advised a state-level response to dangerous federal acts. In 1798, neither of them even mentioned voting or lawsuits.
Jefferson told us that a “nullification is the rightful remedy.” And Madison told us that states are “duty-bound to interpose.”
When Daniel Webster called on these same principles in response to military conscription plans during the war of 1812, he said:
“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people”
Here’s the bottom line. You are not supposed to wait 2 or 4 years for some new politicians to get in office and give your permission to be free. You are not supposed to wait 2 or 4 or 6 years for some federal court to tell you, “ok, you be free now.”
You are supposed to stand up resist, refuse to comply and nullify unconstitutional federal acts – as soon as they happen.
All the money and time you throw at firing congress or winning in federal court will never, ever work – unless you start resisting right here in your state. And, that resistance needs to be your first response, not your last.
HOW DOES IT ALL PLAY OUT?
In 1850, when President Millard Fillmore signed the “Fugitive Slave Act” into law, due process was under serious attack by the federal government.
The act claimed the power to compel people of all states to “assist” federal marshals and their deputies with the apprehension of suspected runaway slaves. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter.
Testimony from alleged runaways was not allowed in court, and habeas corpus and trial by jury were both suspended.
On top of it, bounties were paid to commissioners in fugitive slave cases. $10 was paid if a person was sent back to slavery, and $5 if the person was allowed freedom. The federal government was paying people to capture other people and send them to slavery.
SUCCESSFUL STATE RESISTANCE
In response to the federal act, Northern States intensified efforts to pass what were known as “personal liberty laws.”
The Michigan Personal Freedom Act guaranteed any man or woman claimed as a fugitive slave, “all the benefits of the writ of habeas corpus and of trial by jury.” It also prohibited the use of state or local jails for holding an accused fugitive slave, and made any attempt to send a freedman South into slavery a crime.
A Massachusetts Act called for the removal of any state official who aided in the return of runaway slaves and disbarment of attorneys assisting in fugitive slave rendition. Another section authorized impeachment of state judges who accepted federal commissioner positions authorizing them to prosecute fugitive slaves.
On November 13, 1850, the Vermont legislature passed a bill known as the “Habeas Corpus Law.” It required the state to “protect and defend…any person in Vermont arrested or claimed as a fugitive slave.”
These state personal liberty laws were extremely effective in stopping the federal fugitive slave act. President Fillmore threatened to invade in December 1850, but never followed through. And, with just a few exceptions, the Fugitive Slave Act went totally unenforced in the New England. Over the 10 year period of 1850-1860, there were only four documented cases in which fugitive slaves were returned from New England, the last being a man named Anthony Burns from Boston in 1854.
In fact, Northern states in general were so successful overall that when South Carolina seceded years later, the people there named this as one of their primary reasons for leaving the Union. From their publicly-released “Declaration of Causes,” was this:
“The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the [Fugitive Slave Acts] or render useless any attempt to execute them…”
This is something that I refer to as Nullification. At the Tenth Amendment Center, we define nullification like this: “Any act or set of acts which has as its end result a particular law being rendered null and void, or unenforceable within a particular area.”
Nullification isn’t just some historical idea, it’s happening today.
Just weeks ago, nullification had another big win when Eric Holder’s DOJ admitted that even though they’ve tried harder than anyone in history, they’ve failed at stopping the states from nullifying federal marijuana laws. In Vermont this summer, the Governor signed a bill to nullify the federal ban on hemp farming and production.
In Kansas, the the new 2nd Amendment Protection Act is the first step towards nullifying all federal gun control measures. And in the small town of Herndon, Kansas, Mayor Kenny Chartier worked to get passed Ordinance #510:
“No agency of the City of Herndon,KS, or person in the employ of the City of Herndon, KS shall enforce, provide material support for, or participate in any way in the enforcement of any act, law, treaty, order, rule or regulation of the government of the United States regarding personal firearms, firearm accessories,or ammunition within the Boundary of this City”
These are just a few of the many examples of how nullification is being used today.
And whatever the issue might be, you can take this path either in your local area or at the state level. At the Tenther Action Center, we have model legislation to nullify NSA spying, violations of the 2nd Amendment, Indefinite Detention, Unconstitutional war powers, Obamacare and the Federal Reserve.
IGNORE AT YOUR PERIL
If you really want to know why nothing seems to stop these people – voting bums out, or suing in federal court, or protests and phone calls – it’s not because people are dumb, or there just needs to be another political party. Government doesn’t keep growing because there needs to be more lawsuits or amendments to the Constitution.
If your car needs an oil change, but also has a cracked block, it doesn’t matter how many times you throw the oil out, you’re still going to end up with sludge. Because you haven’t addressed the foundation.
None of the founders agreed that when we face massive constitutional violations, we should wait a couple years to do something about it. Voting the bums out isn’t the first response, it’s the last one.
The first thing you need to do is resist.
I can assure you that this isn’t going to be easy. But this way, with hard work and long-term dedication, we have a blueprint that actually works.
If that’s too risky or too difficult, you’re just going to have to accept living in tyranny.
Become a member and support the TAC!
The time for waiting – is over. The time to nullify – is now. Not after the next election or the next Supreme Court decision. Not next year and not next month or next week. Today, not tomorrow, right now.
In closing, I urge you to heed Murray Rothbard’s advice:
For the libertarian, the main task of the present epoch is to cast off his needless and debilitating pessimism, to set his sights on long-run victory and to set about the road to its attainment.
Our long run victory for liberty isn’t going to come by trying to take over Washington DC.
I want the government people to get the hell out of my life, and yours. And the only way that’s going to happen is if we work together to nullify all of them into oblivion.
The above article is based on the keynote speech at the Constitution Day dinner on 09-14-13. The event was hosted by the Republican Liberty Caucus of Central-East Florida.