Counter-Nullification

Nullification is a treasured and controversial principle in United States’ constitutional law. In our present context nullification means that states can reject or nullify a law passed by Congress that they believe to be unconstitutional. The most furious activity regarding nullification efforts in this country occurred between 1820 and 1860. While many assume that nullification primarily revolved around state’s rights and slavery, there have been movements to nullify tariffs and the disposition of public lands. In fact, the most strenuous and long-lasting nullification efforts were focused on those two now-forgotten raging issues. This has been a thumbnail sketch of the history of formal nullification in the United States. There has existed, however, an informal subversive movement to nullify the Constitution. The most tragic aspect of the movement is that it has been implemented by our elected and appointed officials who have sworn to protect and defend the Constitution of the United States.

Congress has consistently passed laws that defy the Constitution yet in a 58 year period from 1937 to 1995 the Supreme Court of the United did not find any congressional action unconstitutional. Given the plethora of laws and the massive expansion of the federal government during that period, one could assume that there was a conspiracy to undermine the Constitution of the United States between all three branches of government. In essence the failure of congressional restraint, the lack of presidential vetoes and the absence of Supreme Court findings of unconstitutionality suggest an informal nullification of the Constitution by the people who controlled the reins of national power. If only one of the three branches had the wisdom, the reasoning and the courage to stand and defend the Constitution, we may have avoided so many of the troubling issues we face today. Founder and Framer John Adams said, “We have a government of laws and not of men.” That may have been true two and a quarter centuries ago, but for the past century or so men have willfully ignored, distorted or violated the law to pursue their personal whims and preferences. They have and continue to informally nullify our constitutional form of government.

Liberals, conservatives, moderates, progressives and statists have banded together through their votes or non-votes to thwart the dream of the Framers and to violate their oaths of office. Now…we have a nullification movement that is gaining momentum among the people. Using the 9^th and 10^th Amendments to the Constitution as a foundation, these patriots hope to encourage their respective state legislators to reject any and all unconstitutional actions by the federal leviathan. Analysts, constitutional scholars, historians and windbags proclaim that state-initiated nullification efforts are illegal and ill informed. The power elite and their willing sycophants who have abused the Constitution and the rights of the people warn the people that they/we cannot challenge their perfidy by rejecting their unlawful actions. Clearly two wrongs do not make things right, but if the people do not grab the levers of government through their state legislatures and the nullification process, we shall have either tyranny or despotism as our reward for our inaction.

Because our “leaders” and their bureaucratic minions have engaged in their informal “counter-nullification” activities for the past ten or so decades, it seems to me that a counter-counter-nullification effort can be similarly successful if our legislators have the courage and the will to pursue one. If a state refuses to implement a clearly unconstitutional provision handed down by our national “betters,” what are the Feds going to do about it? The rule of law has already been perverted and destroyed by them. Now comes the blowback from their cavalier treatment of the Constitution. The people through their state representatives will refuse to engage in any more unconstitutional activity. If the federal power structure and their toadies attempt to declare nullification by a state an illegal act, let them and let them try to enforce their silly self-serving declaration. In addition we can assume that a state will not stand alone. There will be others that share the desire to stop the federal encroachment on the Constitution and the people.

If the people who have solemnly taken oaths to protect and defend the Constitution of the United States can willy-nilly ignore their oaths and subvert the Constitution, why can’t the people ignore or reject those lawbreakers while honoring and restoring constitutional governance and principles to our respective states? The third of Newton’s laws of motion asserts that “every action is accompanied by a reaction of equal magnitude but opposite direction.” Liberty isn’t physics, but the principle expressed in Newton’s law is appropriate. We must act now while we have the energy and the means to do so. If we linger, the massive federal government will have us surrounded and bound in such a manner that we may be unable to react. The time has come to nullify the counter-nullifiers. “We the People” must be more than mere sentiment.

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Three reasons

There was an obituary in today’s Toledo Blade (I know, a liberal rag) that prompted me to engage in some reflective self-analysis. Twenty-five years ago this month my service as a member of the Ohio House of Representatives ended. There were a number of factors that influenced my decision to not run for reelection in 1984, but it was a choice that I have not regretted for this past quarter century. The obituary was for my opponent in 1982…my final race. The gentleman’s name was Bob Heft, recognized designer of the 50-star flag and the mayor of Napoleon, Ohio. Bob was a decent guy and a worthy adversary. His passing and the twenty-fifth anniversary of my leaving legislature have caused me to examine how my political views have shifted though the years.

When I began my legislative sojourn in 1981, I was generally conservative…reflecting my background as a farm boy who became a small business operator in a small town. After encountering the cacophony of interests that surround the statehouse in Columbus, I found that if my representation were to have any coherence and consistency, then I had better more clearly define my principles for decision making. Early on it was apparent to me that many legislative proposals either ignored potential negative side effects or overlooked possible intervening variables that could hijack the original intent of the legislation. My positions began to harden, and my willingness to vote “no” grew dramatically. I began to resent the “we must have a bill” attitude that I observed from both sides of the isle. In my view, more often than not, no bill was far superior to any bad bill. Despite my frequent “no” votes state government continued to grow larger. So did the federal government, and as the state and feds issued mandates and “revenue sharing” schemes, so too, did the local governments. I witnessed very few cost efficiencies or improvements in service delivery.

Many large corporations and business associations have lobbyists representing them at the state house. Given that the state budget has grown so large, it’s only natural that they believe it necessary to lobby in order to protect themselves from hurtful legislation. It didn’t take me very long to detect that big government and big corporations were very similar in some respects. They have no hearts, no minds and no souls. That observation led me to conclude that those were the three primary reasons for my opposition to larger government and government’s willingness to engage in “sweetheart” legislation with large corporations. One of my constituents helped me arrive at that realization. He was a gentleman in his eighties who owned a small manufacturing company that did specialty work for the automotive industry. As he was guiding me on a tour of his facility, I remarked that surely his company had the potential for phenomenal growth. He agreed but said that they had chosen not to grow larger. “Representative Earl,” he said, “ we have 180 people working here now. I know every one of them, most of their spouses, and many of their children’s names. We cannot be as efficient and productive as we are now if we become so large that the employees can’t bitch to the owner on a first name basis.” This may not be an exact quote, but its pretty close. That lesson has stayed with me for more that twenty five years.

No private corporation is too big to fail. If a company becomes so sluggish that is inefficient, or their customer service fails to address the problems of the customer, then they should be allowed to drift away. New, more aggressive and innovative competitors will fill the void. Big government has no competitors to step up when it does not fulfill its mandate. It simply grows larger by claiming it needs more resources. As we have seen, when big government and big business work hand-in-hand to prop up one another, the superstructure becomes a house of cards. The insatiable government continues to consume more of the nation’s wealth, and the mega-corporations who are connected to the governmental umbilical cord fail to improve while the more efficient competitors are placed at a competitive disadvantage.

No heart, no mind, no soul. Three reasons for my becoming a passionate believer in personal freedom. Three reasons for my fear and loathing of an overreaching, uncontrollable government.

RIP Bob Heft.

Oh, there are three more reasons that I call for a saner government. They are twelve year old Shaun, ten year old Erin, and Sully, who will soon be eight months old. My grandchildren.

Your comments are welcome or email:  cnpearl@woh.rr.com