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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Courting Disaster

Put a dress on a guy, and he goes crazy. No, I’m not discussing a drag queen. My observation is about judges. Before you begin sending me emails, I also have the same view of most female jurists. My complaint is not necessarily with the roles that judges play although I believe we have become much too litigious and reliant on court-administered remedies for every real or imaginary affront. No, my problem is with the Solomon-like attitudes assumed by so many of our jurists once they ascend to the seat behind the bar. The separation of powers as designed by the Framers has become a collection of fiefdoms within all three branches of government. The Executive and Congressional branches have justifiably been excoriated for their unwillingness to comply with their constitutional obligations. The Judiciary has encountered some criticism on a case-by-case basis, but overall the system and its execution appear to be seriously flawed.

With exception of the constitutionally mandated Supreme Court of the United States, all the other courts and judgeships are created by congressional action. One would assume that Congress has the power and the right to dissolve the power islands of the federal judiciary and begin anew. That appears to be the only viable remedy because of the lifetime appointments that federal judges enjoy. Congress, on the other hand, can be purged every two years though the sheeple do not seem inclined to do so, and the President can be dismissed after serving for four years and a maximum of eight years.

As a political realist, I understand that eliminating the federal court superstructure and starting over would require a willing super majority of Congress and probably a compliant Executive. In the divisive political environment of today (producers v. looters, taxpayers vs. non-payers) the likelihood of a super-majority is slim. So if the Congress or the President lacks the will or the power to restructure the federal court system, what solution(s) is available to “We the People?”

As many of you regular readers know, I am a “Nullifier.” I believe the state legislatures have the right ….and the duty to nullify any federal law, rule, mandate or regulation that violates the Constitution. In recent years most states have failed to exercise their nullification powers because many of the federal overreaches included strings and money. Also, state politicians on the whole love bigger government. It gives them more power and more goodies to distribute. Just because nullification by the states would be the correct strategy, are we limited to official state action when state politicians refuse to act on our behalf?  No, we are not. The individual action to “nullify” is civil disobedience. On the face of it the concept seems rather repugnant because those of us with the Western Tradition respect the “Rule of Law.” When the lawmakers and enforcers violate their trust and initiate laws that are clearly unconstitutional, we must pursue every avenue available to restrict them and negate the noxious legislation or rule. In addition when the enforcers distort a law or regulation to the point that it no longer resembles its original purpose or intent, citizens are duty-bound to resist and reject the government power grab.

The United States is a collection of fallible individuals. Some of them become Governors, Mayors or Presidents while others get elected to their respective legislative bodies. The judiciary and the bureaucracy are also comprised of flawed human beings. We often find in government, particularly big government, that distortion and error become compounded as they rely on precedent and shift from one aspect of government to another…..for example, an unconstitutional law passed by Congress is broadened and made even more egregious by the regulators.

Civil disobedience can be a risky strategy. Government has the power to force either compliance or prison for those who morally choose to challenge its abuses. If the local, state and federal politicians are reluctant or opposed to protecting citizens’ rights, the individual or small-group resistance may be the sole remaining option for those who chose to remain here. To circle back to our original discussion….the courts have limited resources to enforce their usurpations of the Constitution. They must rely primarily on the other branches to force compliance. The Executive and Legislative arms do not always agree with the Courts or may choose to ignore judicial rulings (see Ohio public school funding), therefore it seems that if some liberty-minded people are squeamish and hesitant about defying oppressive government, the courts and their nonsensical, unconstitutional rulings may be the weakest link in the system.

This piece is not a “call to arms.” It is, rather, a plea for thinking and considering what to do if the political efforts are unsuccessful. Personally, I do not plan to meekly accept statism and tyranny (more than we already have) without resisting. I shall resist alone if necessary. Any prudent patriot would have a “Plan B” if the original goal were not achieved.

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Why Libya?

In 1785 Thomas Jefferson and John Adams convened a negotiating session in London with the Ambassador from Tripoli about the unwarranted raiding of United States merchant ships and the capturing of U.S citizens for slavery. The Ambassador informed them that because the sailors from America were not followers of the Qur’an, they were open to plunder and slavery. After Jefferson became President, he took action to quell the threat from the Barbary pirates.

C:\Users\Charlie\Videos\RealPlayer Downloads\The Marines' Hymn.flv

This past week President Obama went along with a UN directive promoted by France and Great Britain to enforce a “no fly zone” over Tunisia. It was characterized as a humanitarian effort to save the lives of Tunisians who were protesting and rebelling against Colonel Gaddafi’s dictatorial rule. Although the total extent of the U.S. involvement has not been revealed or leaked, there are strong indications and intelligence that our B-2 bombers were deployed.

At this point we continue to have major deployments in Iraq and Afghanistan. Our military has more than 900 bases in 136 countries across the globe. Our professional fighting forces have been stretched so thin that National Guard and military reserves are serving multiple tours in the various hotspots identified by the nation’s political leadership. In some respects we have come to be known as bellicose bullies while, at the same time, displaying weakness with true threats to our national security. Iran and North Korea have both stated a willingness to do harm to our country and its people, yet their positions as nuclear powers and rogue states remain relatively unchallenged by our leadership. This current state of affairs is not limited to golfing/basketball-player/bracket-creating Democrats. It has existed for some time under presidents from both of the old parties.

In my gut I believe that our political leaders who have not served in armed conflict use these meaningless, unconstitutional adventurous forays as bona fides for establishing their “tough guy” images. This attitude has been prevalent for a long time. In 1898 Teddy Roosevelt formed his own military force and charged up San Juan Hill against a few poorly-armed peasants to prove that he had the courage, the dash and the leadership qualities to be a leader. He was elected to the presidency two years later and served for two terms (he was instrumental in the first great federal land grab). Ronald Reagan ordered the invasion of Grenada, and the invasion of Panama to capture General Noriega was authorized by George H. W. Bush.  President Clinton endorsed General Wesley Clark’s 30,000 foot high military intervention in Bosnia to minimize ethnic cleansing by bombing civilians and the Chinese Embassy.

Tunisia and Gaddafi have been pesky irritants for some time for the United States. In 1986 President Reagan ordered a bombing of Gaddafi’s private complex near Tunis, and one of his children was killed. On December 21, 1988, Pan Am 103 was blown out of the sky over Lockerbie, Scotland, and 259 people perished. It was suspected and recently confirmed that Gaddafi ordered the “hit” in retaliation for the 1986 raid. For as long as the United States has existed as a nation, the Barbary, Tripoli/Tunisian region has been a problem area.

So in the midst of fine dining, dancing the bosa nova, and attempting to appear “presidential,” President Obama has approved another military intervention in Tunisia. Despite his differences from his predecessors, his actions and his rhetoric copy theirs. If humanitarian concerns were his driving impulse, then the Sudan and Rwanda would emerge as theaters of operation. The people who have served in the halls of power for our country may reflect different philosophies, different domestic policies and varying political skills. They all share a common trait, however. They undermine our liberty, plunder our property and steal our wealth while risking the lives of our professional military personnel, spending borrowed money for ordinance and deployment, and behaving like the tin-pot dictators that they claim to oppose. The fault is ours, fellow citizens, for electing the weak to lead us. The Lord said the meek would inherit the earth. The meek are humble. The weak are dangerous.

Why Libya? Why now? Why at all? Why attack countries which have the military might, the GDP and the geo-political power of Rhode Island? Isn’t it forays such as these that lead to our being labeled an international bully? What purpose do we serve by projecting our national power in places such as these? Or…are they mere exercises in the exhibition of presidential personal testosterone? Lord Acton was correct. “Absolute power does corrupt absolutely.”

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Enabling Rights

OK, the brassy bastards just won’t stop. We’ve advanced from an incremental erosion of our personal liberties to an all-out power grab. The historical march toward tyranny has a multitude of beginnings, but I believe that the most onerous one was the passage of the Federal Reserve Act on December 23rd, 1913. Merry Christmas, Suckers! Aside from the noxious fact that a gaggle of bankers control our monetary policy, the most egregious aspect of the Act was the Congress’ transfer of its Constitutional obligation to another party. This pattern has continued for the last century. The freedom-choking concept is “enabling legislation”--- a device whereby Congress drafts and passes broad policy measures and directs other entities to promulgate rules and regulations to enforce the provisions. Get the picture?


How many departments, agencies, bureaus, services, directorates, etc. are there circling in the federal universe? All of these pockets of power are engaged in rule-making that impacts our lives every day. Often they use bad science, incomplete data and falsely perceived threats as justification to implement their intervention into every facet of our lives. There are so many of these “alphabet” entities that we feel as if we’re being assaulted on hundreds, perhaps thousands, of fronts. The massive regulatory apparatus puts all Americans on the defensive, and thus, significantly weakens our chances for slaying the monster.

If you have a burning desire to suffer from glazy-eye syndrome, I urge you to read the Federal Register’s daily update for a full month. If you have the internal strength to NOT suck on an exhaust pipe after doing so, you will have one of two predictable responses. You will either sigh in resignation, or become so darn angry that it’ll be impossible for anyone to be with you. But wait, O’ gullible citizen, it gets worse. Perhaps you’ve wonder how these brain-dead career politicians with the sparkling smiles and the 12-month tans can generate so many abhorrent bills that enable the loss of our liberty.

The answer is staff. This semi-permanent group of lifetime bureaucrats works for the elected officials and for the various committees and sub-committees. They live inside the beltway. They have been radically infected with “Potomac Fever” with little prospect for a cure. They are the true enablers. They do the work and allow the legislator to appear competent. They author the enabling legislation that ultimately becomes law….and they do not have to go back to Minnesota or Texas and live under those toxic regulations. Besides, Congress typically exempts itself from much of the freedom-crushing legislation.

The Congress has legislated a multitude of unconstitutional acts that deny our unalienable rights. They have forfeited their Constitutional mandates by allowing other, unelected entities to implement, promulgate, regulate and enforce those unconstitutional provisions. Unalienable rights are natural rights. If you are a believer, unalienable rights are from God and cannot be taken or given away. If you’re a regular reader of my columns, you are aware that I’m a 10th Amendment nullifier. I believe the states have the duty to refuse to implement or allow any unconstitutional law to be enforced within their borders. I fear, however, that there are not very many legislators who have the cajones to stand up to Big Brother. Our unalienable rights are individual rights, therefore………



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