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by Karen De Coster

Nolan Finley is a very conventional columnist for the Detroit News. Nolan has just published a very good column (for the most part) on the Tenth Amendment movement. However, he just has to get in that one little comment that separates him from the radical states’ rights movement (radical … meaning scholarly and “no surrender”):

Critics see the Tea Party’s failure to acquiesce to this reality as evidence of its outdated mindset. The kindest jabs find it amusingly quaint that its followers would read the Constitution and actually think it still means what it says. The more vicious connect the revulsion to an overpowering central government to arguments in favor of slavery and against civil rights. Once again, the attacks go, racists are hiding behind states’ rights.

All I can say to that is, “Wow.” I have been involved in the radical libertarian-freedom movement for twelve years in the sense that I’ve become known, and before that, about fifteen years before anyone knew anything about me. I have never found one states’ rights person in favor of slavery. There are groups of extremely racist hatemongers, and they are self-contained within their own very small bands of obscurity that revolve around online forums and philistine newsletters. They are a speck on the radar map, and they have no voice and no impact whatsoever.

Why is it that every tediously conventional writer who addresses this topic (Tenth Amendment/secession) feels the need to make that very visible distinction: “I am not a racist.” C’mon Nolan, dust off the cobwebs and get with the times. Otherwise, Nolan has written a good, introductory column for the general masses. He says:

Advocates of an ever-expanding central government have found good allies in the Commerce Clause of the Constitution, which has been used to justify seizure of just about all economic activity, and in its call for Congress to provide for the “general welfare.”

General welfare is a wide avenue. It can easily be twisted to give the government the right to impose any mandate, take over any function, ban any behavior in the name of the common good.

Follow that string to the end and Congress can, under the general welfare guise, collectivize any of the rights guaranteed to individuals.

See Michael Boldin’s Tenth Amendment Center for the real thing.

by Patrick Krey, NA

The “Principles of 98,” as they came to be known, are rarely discussed in modern history lectures even though these are integral to understanding how our federal Constitution was intended to function. These are the principles of state interposition or nullification that assert that if the federal government fails to check itself through one of its three branches, then it would be up to the states to rein in the feds.

The main basis for the theory is that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers. As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy. The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries.

The man widely regarded as the “Father of the Constitution,” James Madison, described just how a federal system would work in his essay Federalist No. 51. Madison, encouraging his fellow countrymen to ratify the newly drafted Constitution, described a system of horizontal as well as vertical checks and balances between the federal and state governments — a system known as federalism. “Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison, joined by Thomas Jefferson, would later go on to expand upon this in the famous Kentucky and Virginia Resolutions of 1798. The federal government had recently passed the blatantly unconstitutional and shameful Alien and Sedition Acts to silence and intimidate political enemies. Those despicable acts were instituted by advocates of unwritten constitutional power and a more robust central government. Both Jefferson and Madison argued that the states constitutionally had the right to refuse not only to comply with such unconstitutional actions of the federal government, but also to actively prevent the feds from enforcing them within their state boundaries.

These visionaries and their resolutions gave a voice to a peaceful revolution of constitutional principles that would govern this great nation for years to come. Many states have in fact utilized state nullification to check the federal government throughout the history of our Republic. From the Fugitive Slave Act to unpopular tariffs, states did indeed nullify federal laws they found to be unconstitutional.

Nullification has started to be mentioned in the news, as states have once more started to utilize the practice to resist federal overreaching. Many states have either passed or proposed legislation or amendments to their state constitutions that nullify federal laws in the areas of firearms, medical marijuana, and healthcare, to name just a few.

by Derek Sheriff, LWR

While speaking to a large crowd of over a thousand people on the campus of Arizona State University last December, Congressman Ron Paul mentioned one thing that might come about as the result of the federal government habitually ignoring the Constitution: Nullification.

About five minutes into the video segment which you’ll find below, he said, “There’s not much attention paid to the Constitution in Washington. There’s not much attention paid to it by our executive branch of government. And we don’t get much protection from our courts. So one thing that might finally happen from this if the people finally feel so frustrated that they can’t get the results out of Washington – they’re going to start thinking about options. They might start thinking about nullification and a few things like that.”

As someone who attended that rally and was doing my best to represent my state’s chapter of The Tenth Amendment Center, I know I cheered very loudly and was very pleased when the rest of the crowd applauded enthusiastically.

For anyone who is unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president, Thomas Jefferson, when he authored what came to be called the Kentucky Resolutions of 1798. The resolutions made the case that the federal government is a creature of the states and that states have the authority to judge the constitutionality of the federal government’s laws and decrees. He also argued that states should refuse to enforce laws which they deemed unconstitutional.

James Madison wrote a similar resolution for Virginia that same year, in which he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state’s legislature is duty bound to interpose its power to prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.

These two documents together came to be known as The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, and the phrase, “Principles of ’98″ became shorthand for nullification and/or interposition. Over time, “The Principles of ’98″ would be invoked by many other states, many times for a variety of issues.

Getting back to Ron Paul’s speech in December at ASU, Congressman Paul qualified his prediction about the revival of nullification by saying the following:

“But my suspicion is that there will never be official nullification or secession, but if the [federal] government continues to fail, and they can’t deliver anything…checks bounce…that we will be forced to take care of ourselves. And we will be forced to almost ignore everything they do.”

Less than a week after the speech I attended at ASU, Congressman Paul was interviewed byMike Church on his radio show. When Mike asked him what his thoughts were on nullification, Ron Paul responded by saying:

“I think it’s a great idea. It was never really successful in our history. But I think it’s going to grow in importance. And I think it’s going to grow because the government, the federal government will be seen as inept and ineffective. And I think it’ll almost be de facto in the sense that the states will eventually just ignore some of the mandates.”

Here I would like to pause for a moment and point out that I am not usually in the business of disagreeing with Congressman Ron Paul. I would hardly need one hand to count the number of times that I have actually disagreed with him on any issue of real substance. I am a great admirer and supporter of Congressman Paul, who is undoubtedly very supportive of the idea of state nullification, even if he has doubted its efficacy in the past. However, in spite of all this, I would like to make two observations.

First, nullification has, in fact, been somewhat successful in the past and more recently as well. Second, as President Obama loves to say, “Let me be clear”: “Official” nullification has ALREADY HAPPENED.

Before I explain why “official” nullification has already happened, let me briefly give some examples of what nullification is NOT.

Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.

So just what IS “official” nullification you might be asking?

Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.

Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights by acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.

With the exception of a Constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), a state’s decision to nullify an unconstitutional federal law without resorting to extra-legal measures. But such measures would more than likely backfire, since most Americans still affirm that might does not make right.

There is no question as to whether or when “official” nullification will happen: It has ALREADY HAPPENED. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it. According to the Tenth Amendment Center:

“25 states over the past 2 years have passed resolutions and binding laws denouncing and refusing to implement the Bush-era law [REAL ID Act]. While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

But that’s not all; another example of “official” nullification has occurred in the form of an unlikely states’ rights ally: Medical marijuana.

There was a time when the federal government took the Constitution seriously enough that Congress did what is required in order to enact a nationwide ban on a substance. Even though the experiment would eventually be seen by most Americans as a mistake and a failure, the 18th Amendment was passed and the era known as “Prohibition” began. Four years later, it was repealed.

When it came to marijuana prohibition, however, the feds had another trick up their sleeve. All three branches of the federal government would agree on a very novel, liberal interpretation of the “commerce clause” which would allow them to regulate virtually any substance, including marijuana, even though there’s supposedly no “legal” commerce in the plant. Since that time, the federal government has managed to claim, with a straight face, as it were, that a plant grown in your back yard, never sold, and never leaving your property, is somehow able to be completely banned by the federal government under the interstate “commerce clause.” The only problem with their claim is that the states just aren’t buying it.

Fourteen states have actively refused to comply with federal laws on marijuana, and it looks as if six more are about to join the effort. In a recent blog post, Mark Kreslins observes:

“…medical marijuana now poses a real threat to the enforcement power of the Federal Government. With state after state defying Washington DC over this issue…. Washington DC has a choice to make; enforce their laws based on a very liberal interpretation of the Commerce Clause by sending thousands of DEA agents into all fifty states…or…look the other way. Thus far, they’ve chosen to look the other way for if they create the appearance of a Federal takeover of police powers in the States, they will fully expose their extra-constitutional behavior and provoke a direct confrontation with the States who will use the 10th Amendment (hopefully) to defend their prerogatives.”

Whatever your view may be regarding marijuana use, medical or otherwise, one thing is apparent: “Official” nullification has happened, and it works! Washington will have to get used to it.

What remains to be seen, however, is whether in addition to “officially” nullifying unconstitutional federal laws, state governments will be willing to use their power to “officially” interpose themselves between agents of the federal government and the people of their state. In the unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defiance of unconstitutional federal laws, will that state’s government have the courage to hamper or even neutralize such extra-legal measures?

There are a whole host of peaceful actions that a state government can adopt if that day comes or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s Department of Revenue.

Besides state interposition, the other thing Washington would have to consider, is whether enough of their agents would actually obey orders to punish people for exercising their constitutional rights. There is a significant chance that enough of them would either publicly or privately decide in advance to ignore such orders. As the probability of this increases, it becomes more likely that Washington will not risk overplaying its hand. The reality is that Washington just doesn’t have the manpower to enforce all their unconstitutional laws if enough states choose to defy them.

Of course, it all depends on the people of the several states: ordinary people like you and I. Although I’ve discovered that there are more elected representatives at the state level who are committed to acting in a courageous and principled manner than I ever dared hope, most of their peers lack such a brave commitment. Most of them will stick their head in the sand or sit on the fence until they determine which way the wind is blowing. And so it’s our opinion, not the opinion of the American people in aggregate, but our opinion as citizens of our respective states, that will influence the decision of our state representatives to either stand tall or to kneel down and knuckle under.

But do you even know the men and women who represent you? I’m not talking about those who represent you in Washington, but rather in Phoenix, Salem, Sacramento, Salt Lake City, Denver, Austin, Oklahoma City, Tallahassee, Atlanta, Nashville, Richmond, Harrisburg, Indianapolis, Columbus and Springfield.

If you don’t know them, and you care about our republic, you should make it your highest priority to get to know them and establish rapport with them as soon as possible.

For any of you who really want to preserve our union, and at the same time retain your rights guaranteed by the Bill of Rights, I can’t say it any better than 2008 presidential nominee of the Constitution Party, Chuck Baldwin:

“…it is absolutely obligatory that freedom-minded Americans refocus their attention to electing State legislators, governors, judges and sheriffs who will fearlessly defend their God-given liberties…as plainly and emphatically as I know how to say it, I am telling you: ONLY THE STATES CAN DEFEND OUR LIBERTY NOW! …this reality means we will have to completely readjust our thinking and priorities.”

This is reprinted from the Tenth Amendment Center.

by Aaron Turpen, Cheyenne Green Living Examiner

Recently, the Wyoming Tribune Eagle’s Outdoors Editor Shauna Stephenson published an article about recent changes to energy rules and regulations from the nation’s Secretary of the Interior Ken Salazar and how they would affect both Wyoming’s energy producers and the conservation groups that fight them. (Yes, we need energy, but not at any cost)  Stephenson failed to ask the one fundamental question that should be driving this debate and instead focused on the partisan issue at hand.

The driving question should be: why is it Washington’s decision what Wyoming does with our energy?

Being something of a tree hugger, I understand the issue of sustainability and conservation, but I am practical enough to understand that the forces at work here are not what they pretend to be.  A generally free market, Constitutional understanding of the issue immediately tells me that government, especially centralized control in Washington, will do little to “conserve” anything and a lot to bring new hazards to our great state’s future.

Wyoming is the nations number one net producer of surplus energy and is responsible for about 34% of the nation’s total clean coal supply.  We are also one of the greatest producers of natural gas and have some of the highest potential for renewable wind energy production.  No wonder the feds in Washington want to control our energy sources.  Even Texas, often seen as the nation’s oil capital, doesn’t produce a surplus like we do and remote Alaska is unable to export well enough to beat our ability either.

In this regard, Wyoming is at a real negotiation advantage.  All we have to do is realize one thing: the District of Columbia doesn’t control us, the People of Wyoming control us and our energy.

Earlier this week, I listened in on Senator Barrasso’s telephone town hall meeting where as much was said by one caller, who questioned why Washington was so interested in telling the People of Wyoming what to do.  That was in regards to health care, but it applies here as well.

Of course, environmental groups such as the Nature Conservancy and other big-money psuedo-environmental groups hope to gain more control over policies affecting Wyoming’s energy.  None of those groups are based in Wyoming and I’d be willing to bet that few even include citizens of this state.  I don’t belong to any of them.  Do you?

The citizens and their elected officials here in Wyoming need to begin weighing everything Washington does to control our everyday lives and our economic future and begin to consider the idea that maybe Washington is more trouble than it’s worth.  As an independent State in the Union, Wyoming has the Constitutional authority to tell Washington to shove off.

Perhaps it’s time to do so.  Other states, such as our friends up north in Montana, have already done so on other issues – they decided gun control from the BATFE in Washington was not for them.  Oklahoma, Tennessee, Texas, and others have all proposed 10th Amendment legislation to assert their rights as independent States.

I think it’s high time Wyoming did the same.

The people who live here and enjoy our beautiful state’s natural wildness, great resources, rural living, and unobtrusive politics are the ones who should decide what is done with resources that surround us.

After all, it’s our mountains, our prairie, our oil, our gas, our water, and our wildlife that are at stake here.  Not America’s, but Wyoming’s.  Yours and mine. Washington is 1,400 miles away.  What can they possibly know about Wyoming?

from Tenth Amendment Center

Introduced in the State Senates of both Colorado and South Dakota last week is a bill known as the “Firearms Freedom Act.” If passed, the bill would make state law that “any firearm, firearm accessory, or ammunition that is manufactured commercially or privately in the state and that remains within the borders of the state is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.”

This now makes Firearms Freedom Acts already passed in Montana and Tennessee, and currently introduced in these 21 states: Alabama, Alaska, Arizona, Colorado Florida, Georgia, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, and Wyoming.

According to Gary Marbut of the Montana Shooting Sports Association and author of the original bill that was introduced in Montana, “It’s likely that FFAs will be introduced soon in West Virginia, New Mexico, Idaho, Kansas, Arkansas, Louisiana, North Carolina and maybe elsewhere”

South Dakota’s Senate Bill 89 (SB89) was introduced by State Senator Rhoden, and has 22 Senate co-sponsors and 44 House co-sponsors.

Colorado’s Senate Bill 092 (SB10-092) was introduced by State Senator Schultheis and has 9 Senate co-sponsors and 7 House co-sponsors.

CLICK HERE – to view the Tenth Amendment Center’s Firearms Freedom Act Tracking Page

UPDATE, 01-26-10

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

But nullification is more than just a mere rhetorical statement or a resolution affirming the position of the legislature. To effectively nullify a federal law requires state action to prevent federal enforcement within the state.

Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that 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.

In his famous speech during the war of 1812, Daniel Webster 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”

Here Madison and Webster assert what is implied in nullification laws — that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state.

In similar proposals, some legislators around the country have begun adding penalties – ranging from misdemeanors to felony charges – for federal agents, too.  Other legislators have already introduced what’s known as the “State Sovereignty and Federal Tax Funds Act” which would require the state to interpose against the IRS and withhold tax funds from D.C.  Click here to read more about this proposal.

Even without such specific penalties listed, I see this as an important step in the right direction.

Hat Tip: National Expositor