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Monday, February 04, 2013

We Had To Destroy The Constitution In Order To Save It

Facebook is a fascinating place.  Full of advocates for insurrection and nullification.  They'll let anybody on the Interwebs, right?  But enlightened lawmakers are into it, too.  Maybe not so much the revolutionary stuff, but certainly have been continuing the revival of nullification in a desperate attempt to stop Federal gun safety regulation and, of course, Obamacare:

In a statement announcing the newest effort to protect citizens of Oklahoma from the devastating effects of the president’s healthcare law, Dr. Ritze quoted Thomas Jefferson in support of his right to reject unconstitutional federal acts. Said Ritze:

Thomas Jefferson made it perfectly clear in the Kentucky Resolution of 1799 when he wrote; "That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence.”

Jefferson’s Kentucky Resolution plainly sets forth his understanding of the source of all federal power. Later in that document, Jefferson wrote:

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour [sic] of that instrument, is the rightful remedy.

Nullification is a concept of constitutional law that recognizes the right of each state to nullify, or invalidate, any federal measure that exceeds the few and defined powers allowed the federal government as enumerated in the Constitution.

Yes, nullification is a concept of conlaw insofar as somebody conceived it, yet it has been resoundingly and decisively rejected by Kentucky's (and Virginia's) sister States, by the Supreme Court, and by a bunch of strapping young fellows dressed in blue woolen uniforms and armed with muskets among other sundry firearms in the mid-19th century.  A few other points:

  1. While it is based on the 1798 resolution secretly written by Jefferson (he did not admit to authorship for years), he is not responsible for the 1799 resolution (see footnote 54, page 705).
  2. Jefferson did mention nullification in his original draft, but the Kentucky legislature deleted it from their passed version.
  3. Both resolutions acknowledged that while the several States might judge a Federal act as unconstitutional and void they had, in fact, no power to nullify:
  • 1798: the Governor of this commonwealth be, and is hereby authorized and requested to communicate the preceding resolutions to the legislatures of the several states...and that the co-states, recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force and will each unite with this commonwealth, in requesting their repeal at the next session of Congress.
  • 1799: this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact...

Now let's take a step back.  What the hell are people lovingly quoting here?  

The Kentucky Resolutions and singular Virginia Resolution were responses by Jefferson and Madison to some very real tyranny, the Alien and Sedition Acts (a series of four laws passed by the Federalist Fifth Congress and signed by John Adams).  The first bill--a less-controversial Naturalization Act--was introduced in April of 1798, with the Alien Act following several days later and the other two in progression through the summer.  

Madison wrote to Jefferson in May:

The Alien bill proposed in the Senate is a monster that must forever disgrace its parents. I should not have supposed it possible that such an one could have been engendered in either House, & still persuade myself, that it cannot possibly be fathered by both...These addresses to the feelings of the people from their enemies may have more effect in opening their eyes, than all the arguments addressed to their understandings by their friends.

The President, also, seems to be co-operating for the same purpose. Every answer he gives to his addressers unmasks more and more his principles & views. His language to the young men at Pha. is the most abominable & degrading that could fall from the lips of the first magistrate of an independent people, & particularly from a Revolutionary patriot.
...
The turn of the elections in N. Y. is a proof that the late occurrences have increased the noise only & not the number of the Tory party. Besides the intrinsic value of the acquisition, it will encourage the hopes & exertions in other States. 

Anti-Federalists, or Democratic-Republicans (precursors to the Democratic Party), were obviously horrified from the beginning by what their fellow Founders were planning to do.  But notice that Madison saw the worm already turning: even though none of the proposed legislation could have had a direct impact, the New York elections were held from April 24-26 and Democrats gained two House seats to flip the balance of their congressional delegation.   Overreach by the General Government was already causing the party some problems and results in the Federalist stronghold of NY showed just how weak they were becoming, even as they became noisier and more aggressive (sound familiar?).

The governing party did gain a few seats overall in the 1798 election, but the stage was set for a dramatic reversal of fortune in 1800 and really a Federalist death spiral while assuring Democratic dominance for decades to come.  The big campaign issue was those abominable acts so repugnant to the Constitution.

Before that happened, though, Kentuckians reaffirmed their resolve against the Acts, and Virginians defended their resolution as well.  But even Madison in the latter case did not assert State power to nullify Federal acts:

The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
...

In the example given by the state, of declaring the alien and sedition-acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted, that these simple means would have been as sufficient, as they are unexceptionable.

It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or, they might have represented to their respective senators in Congress their wish, that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.

These several means, though not equally eligible in themselves, nor probably, to the states, were all constitutionally open for consideration

Bottom-line: the States can say they don't like the law, but they must needs use constitutional mechanisms to make their desired changes.  The resolutions to which modern nullificationistas desperately cleave are mere expressions of opinion, nothing more, and the States in question still acknowledged their duty to follow the supreme law of the land.

If you want rebellion, either do it like they did in the Revolution of 1800 or like this fine lady did in the middle of the last century.  Enough with the talk of unconstitutional or extra-constitutional measures.  I won't go so far as to suggest that's treasonous or seditious or even un-American, but it's certainly ignorant and counterproductive.  

If you want to uphold the Constitution then...uphold the Constitution.  Pretty simple.

ntodd

PS--Regarding Obamacare specifically, I'll just remind the insurrectionists and nullificationistas that it was passed by a duly-elected Legislature, signed by a duly-elected Executive, and upheld by the ostensibly-independent Judiciary.  What's more, there have been 2 intervening elections since passage: in 2010 the nation did not give anti-Obamacare opposition enough power to repeal it; in 2012 we retained the same overall congressional balance whilst eroding the opposition's standing and duly re-electing our president.  It's really time to get over that one and follow the supreme law of the land, per our Constitution you claim to revere and defend.

February 4, 2013 in Constitution, Schmonstitution | Permalink

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