The Constitutional Convention of 1787 was held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" With no hesitation whatsoever, Franklin responded, "A republic, if you can keep it." ~ BENJAMIN FRANKLIN 1787
States seek to nullify Obama efforts - Tal Kopan - POLITICO.com
Nullification supporters say it’s the best tool they have to beat back the federal government. | AP Photo
Infuriated by what they see as the long arm of Washington reaching into their business, states are increasingly telling the feds: Keep out! Bills that would negate a variety of federal laws have popped up this year in the vast majority of states - with the amount of anti-federal legislation sharply on the rise during the Obama administration, according to experts. The “nullification” trend in recent years has largely focused on three areas: gun control; health care; and national standards for driver’s licenses. It’s touched off fierce fights within the states, and between the states and the feds, as well as raising questions and court battles about whether any of it is legal. (Also on POLITICO: President Obama vs. Texas) In at least 37 states legislation has been introduced that in some way guts federal gun regulations, according to the Brady Center to Prevent Gun Violence. The bills were signed into law this spring in two states, Kansas and Alaska, and in two more lawmakers hope to override a governor’s veto. Twenty states since 2010 have passed laws that either opt out of or challenge mandatory parts of Obamacare, the National Conference of State Legislatures says. And half the states have OK’d measures aimed knocking back the Real ID Act of 2005, which dictates Washington’s requirements for issuing driver’s licenses. “Rosa Parks is the beacon of light: If you say no to something, you can change the world,” Michael Boldin, the Founder of the Tenth Amendment Center, which favors states’ rights, told POLITICO. “Isn’t that what it’s supposed to be, ‘We, the people?’” he added. “Over the past few years you’ve seen this growing…People are getting sick and tired of federal power.” (Read more: POLITICO's coverage of gun control) In fact, the state-level anger at the nation’s capital has reached such a fever pitch that many of the bills do not even address specific federal laws, but rather amount to what is in effect “preemptive” nullification, wiping out, for instance, any federal law that may exist in the future that the states determine violates gun rights. The flurry of such efforts was spurred by fear on the part of states that in the wake of the tragic shooting at Sandy Hook Elementary in Newtown, Conn., that Congress would pass restrictive gun control legislation. Supporters of nullification say it’s the best tool they have to try to beat back an intrusive federal government that they say is more and more trampling on the rights of states. But critics respond that the flood of legislation to override the feds is folly that won’t stand up in court and amounts to a transparent display of the political and personal distaste for President Barack Obama. And in some cases, the moves in the states has provoked an administration counter-offensive: Attorney General Eric Holder sent a letter to Kansas after it passed the “Second Amendment Protection Act” threatening legal action if necessary to enforce federal laws. (PHOTOS: What’s in Obama’s 2014 budget) Even some conservatives - certainly no lovers of the Obama administration - warn that the states are going down the wrong path with nullification, distracted by a what lawmakers think is a silver-bullet solution, but that likely won’t stand up in the courts, when in fact there are much better (and legal) ways for the states to resist. While most states have wrapped their legislative sessions for the year, the fight on these bills is taking only a brief pause. In Missouri, for example, lawmakers are preparing for a veto session in September, where supporters of a gun measure that would eviscerate any future congressional attempts to regulate gun ownership are planning to attempt to override the governor’s veto. The nullification battle has also spilled over into the courts, with more challenges and rulings expected during the year. In Kansas, state Rep. John Rubin sponsored successful legislation that dictates that federal gun laws do not apply to firearms and accessories made in Kansas and that never leave its borders, and makes it a felony for any federal agent to enforce those laws within the state. (Also on POLITICO: CVS will help promote Obamacare) The Republican lawmaker told POLITICO his bill is about states’ rights - not gun rights. “The federal government doesn’t have the authority to do a lot of what it’s trying to do these days, from regulating guns within state borders, as my bill deals with, or telling us what kinds of light bulbs to put in our lamps,” Rubin said. He noted a rise in the number nullification bills. “I think we have the Obama administration to thank for that.” Rubin said. “The more federal overreach in Obamacare and elsewhere, the more [the administration] chooses to act in ways we believe are unconstitutional, the more we’re going to push back. I would encourage any state to assert to the strongest possible extent against the Obama administration, or any federal administration, rights clearly reserved to the states.”
But opponents of sweeping nullification measures paint them as misguided, often politically motivated, and likely unconstitutional attempts to zero out reasonable and well-intended federal initiatives. And that’s not just coming from the left. The Heritage Foundation, a conservative think tank, argues that nullification is not the answer to states’ concerns. Continue Reading“There are a rising number of people who are frustrated with what Washington is doing, which is a perfectly legitimate and, in my opinion, correct view of, ‘How do we push back?’” Matthew Spalding, vice president of American Studies for Heritage, told POLITICO. “Unfortunately, there’s a minority in that group that thinks nullification is the answer, by which they mean good old-fashioned, South Carolina, John C. Calhoun nullification. That’s deeply mistaken and unfortunate.” (PHOTOS: Obama’s top 20 jabs at the GOP) Spalding said states’ better options include legal challenges, not funding federal laws, or even refusing to enforce them - but not overruling federal laws with state ones. “Ironically, the people who say they are trying to defend the constitution are doing something to undermine it,” he added. “This is sort of a Hail Mary pass. These are in most cases state legislators who are very frustrated. They’re figuring out how to stop these things, how to turn the course of the nation, in my opinion for good reason, and they’re being told the Supreme Court just upheld [Obamacare], this guy has been reelected, what can we do? And someone comes around and says, ah, you can nullify law.” Another nullification opponent, the Brady Center to Prevent Gun Violence, said it’s prepared to fight the recent crop of state gun bills in the courts. “They are outrageous,” said Brady Center legal director Jon Lowy. “It’s disturbing that there are [state] legislators who are so willing to violate the [U.S.] Constitution but also that they have so little concern for public safety. They [nullification measures] would greatly threaten public safety if they weren’t so patently unconstitutional, so we expect that courts will rather quickly wipe them off the books.” (PHOTOS: Obama’s second term) Robert A. Levy, chairman of the libertarian Cato Institute, told POLITICO that the wave of nullification bids is the result of a “highly polarized” political atmosphere in the country. “Wen you get that polarization you’re going to get these sort of radical proposals,” he said. “So you’re seeing an increase in these sorts of things. A state, or a city, for that matter can refuse to enforce a federal law and even refuse to expend any money to help the feds enforce any law, but that doesn’t mean that they can stop the feds from enforcing their own laws.” Looking ahead, the next skirmish over nullification will likely be in the Midwest this fall. Missouri lawmakers are gearing up for a contentious September veto session, with opponents of the state’s gun nullification bill hoping to keep it off the books and proponents saying they have enough votes to override the governor’s veto. (PHOTOS: Obama’s first term in cartoons) The bill’s sponsor, state Rep. Doug Funderburk, predicted a bipartisan override, and said the law was needed to push back against the long arm of the federal government encroaching on Americans’ rights. “It’s time for the states to assert their authority … as the parent in the relationship with the federal government, to take back that role,” Funderburk said. On the other side, state Rep. Jill Schupp, a vocal opponent of the bill, said, “If we overturn the governor’s veto, I think what we’re saying is Missouri is its own sort of Wild West state. When extremists get involved and put forward legislation like this, it makes all of us come to a grinding halt in terms of reasoned discussion. To make a move that precludes us from having reasoned gun legislation and is an attempt to nullify federal law certainly makes us look like a laughingstock on this issue.”
A COMMENTARY …
It is common for many people, especially politicians and judges, to
think of the Constitution in fragmented terms, isolating this part
and that part to suit the particular needs of any given situation
however, the entire Constitution is, when properly construed,
consistent throughout. If we take the Bill of Rights, for instance,
those Amendments do not add or subtract anything from the Original Constitution, the fact is that they were already Rights prior to the writing and ratification of the Constitution. The federal government ONLY POSSESSES those powers delegated to it, this fact is evident in Article 1, Section 1 when it declares those powers to be VESTED in Congress. The word VESTED is defined as FIXED, meaning the powers of Congress are cannot be based on any contingency authority except those which are expressly delegated, this, by definition, would exclude the idea that there can be a broad interpretation of implied powers available to Congress.
The structure of the entire Constitution is articulated concisely within the 10th Amendment, it defines the foundation of limited government, it reinforces the doctrine of the federal system that the Constitutional Compact, agreed to and ratified as a Contract between the States, created. It is not merely that the 10th Amendment acts as a barrier against federal intrusions on the liberties of the individual and the authority of the States, the 10th Amendment expounds the entire Constitutional Compact of federalism. Without doubt, the Congress and Supreme Court have used an extremely broad interpretation through the doctrine of implied powers, yet there is no other principle that serves as the foundation of the entire purpose and plan of the original Constitution and it is fully expressed in the 10th Amendment. That principle is that the federal government only possesses those powers that are specifically delegated to it by the Constitution and no others. When the Framers wrote the 10th Amendment, all they were doing was reiterating the entire principle upon which the government of the United States rests.
The Constitutional Compact, created by the States, deputized the federal government and delegated to it certain limited and enumerated powers. Many of the Framers believed that since those powers were indeed limited and were enumerated within the Constitution that the Bill of Rights was unnecessary and could, in fact, cause several issues in the future due to the specificity of the Bill of Rights. They were concerned that the Bill of Rights would be interpreted as the only Rights or that they would be used to limit the Rights of the People and the States through a broader interpretation that there were no other negatives issued against federal powers except those first 10 Amendments. Of course, the 9th Amendment, the sister to the 10th, gave an extremely broader view of the Rights reserved to the People, explaining that there were Rights that were not enumerated within the Constitution, but were nonetheless, just as as exacting as though they were enumerated.
Therefore, since it is completely impossible to list all the Rights of the Citizens of these States united in a Compact of Union, there exist Rights that the government cannot define or legislate to contravene. The fact that there is an absence of those Rights enumerated does not, in any sense or construction, deny the fact that those Rights do indeed exist and are just as inalienable and therefore, un-restrainable as those that are enumerated within the Bill of Rights. Indeed, James Madison stated: ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.''
The solution to this potential problem is the 9th Amendment to the
Constitution: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Of course, the 9th Amendment has been essentially ignored by the Courts, and, I might add by those who, for whatever reason, would deny all manner of Rights to other Americans. This denial of Rights has occurred on both the right and the left of the political spectrum. It is therefore, beyond doubt that the
Framers of the Constitution believed and asserted that there are
additional fundamental rights, that are protected from governmental infringement, which exist along with those fundamental rights specifically mentioned in the first eight Amendments to the Constitution.
Since the Constitution only conferred those limited powers that are enumerated in the Constitution itself, it was assumed that the federal government could not reach beyond that which was granted to it. The Framers of the Constitution, using the normal rules of statutory construction, insisted that by forbidding the federal government within certain areas, would allow it to act in areas that were not specifically forbidden by the Constitution. The remedy to such a possibility was the 10th Amendment, which is a bulwark against the government using implied powers to deny or restrain the limitation of any of the Bill of Rights. Thus, as a statutory construction or interpretation, this rule, the 10th Amendment to the Constitution, prevents the inference that the Bill of Rights might, in an instance of misconstrued interpretation, imply that the federal government has powers other than those enumerated, and as such, could be used by the government to limit or infringe upon the Rights declared within the Bill of Rights.
It is once again time to put this rogue federal government back in it's place, that place being a deputized agent of the States under the Sovereignty of the People. No longer should this government operate as though it's actions were independent of and outside the parameters of the Constitutional Compact that the States agreed to and were the sole parties of when they formed this government. This government is the servant not the master, it is the creature not the creator!
NULLIFICATION, INTERPOSITION AND IF NECESSARY SECESSION!