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From health care to immigration, the federal government is expanding its originally intended role by dictating to the states what they can and can't do, or what they will and will not do. We are hearing more and more from those who say the federal government itself is going against the Constitution.

Most of us were taught in public school of the so-called "perfect" balance of power between the executive, legislative and judicial branches of the federal government. Few of us were taught of the possibility that these three branches could unite (intentionally or not) against the rights of individual states. But James Madison, Thomas Jefferson and others knew there was a natural tendency for governmental power to grow while "liberty" diminished.

As Thomas E. Woods Jr., author of the book, "Nullification," wrote, "It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law."

This, say the rounders, was the purpose of the Tenth Amendment, and why it was considered the "cornerstone" of the Constitution. It was written to assure the states that the federal government would have only those powers specifically granted to it, and no others.

-- A little history

Sadly, the names Joshua Glover and Sherman Booth are unknown to most Americans. These two individuals were instrumental in addressing the Fugitive Slave Act of 1850. This federal act provided that fugitive slaves were to be returned to slave owners, even without a jury trial. It allowed the government to fine people who harbored runaway slaves and it prevented states from protecting their own citizens from obvious kidnapping.

In Wisconsin, in March 1854, Joshua Glover, a fugitive slave, was taken into custody by a federal marshal. A brave abolitionist named Sherman Booth led a raid into the jail to free the runaway slave.

Booth was arrested by federal authorities, but a Wisconsin Supreme Court judge ordered him released and the state Supreme Court itself ruled the federal Fugitive Slave Act to be unconstitutional and unenforceable. The U.S. Supreme Court stepped in and ordered Booth to be turned back over to federal authorities. The Wisconsin Supreme Court refused to comply and the Wisconsin legislature adopted a resolution in support of the Booth case.

Yes! A northern state invoked its "state's right" to oppose federal law.

-- Nullification

Thomas Jefferson is credited with introducing the term "nullification." It is the concept prescribing that if an individual state deems a federal law to be unconstitutional, that state can rule the law null and void, and that each state can make that decision independently. It is based on the American idea that in a free society "people" do not need constitutional authority to act, but the government does.

There are a variety of initiatives across the country today that are very clearly rooted in nullification.

According to the 10th Amendment Center, "Sheriff's First" proposed legislation "would make it a state crime for any federal agent to make an arrest, search, or seizure within the state without first getting the advance, written permission of the elected sheriff of the county in which the event is to take place."

Earlier this year, there were no less than 14 states defying federal laws against the medical use of marijuana. Even conservative states like Alabama, Louisiana, and Mississippi have taken a stand against federal encroachment over marijuana use. While these three states openly disagree with California laws in support of marijuana use, they support California in its stance against federal encroachment.

Also this year, Wyoming introduced the "Firearms Freedom Act," intended to eliminate federal "commerce clause" jurisdiction over firearms sales in Wyoming. It boldly claims that "firearms that are manufactured, sold, purchased, possessed, and used ... within Wyoming shall be exempt from federal ... regulation ..." Several other states have similar measures.

In January of this year, the Missouri lieutenant governor and 30 legislators rallied to endorse a state constitutional amendment to nullify attempts by the federal government to force citizens of the state to purchase health insurance.

Likewise, the state House and Senate in Virginia passed legislation declaring that "No resident of this Commonwealth ... shall be required to obtain or maintain a policy of individual insurance coverage."

-- Criticisms

A primary criticism of nullification involves the so-called "supremacy clause" which states that the Constitution and laws pursuant thereof shall be the "supreme law of the land." The first obvious response would be to ask: "Who" then is supposed to determine if federal laws are "pursuant" to the Constitution? Nullification acknowledges that the U.S. Supreme Court is "part" of the federal government and cannot be considered an impartial arbiter in matters between the federal government and states.

Another criticism is to suggest that this is a tired, old "states' rights" issue that was settled by the Civil War. This position is a bigoted one used to stigmatize anything involving the "southern" states. But as we've seen, nullification has been used, and is being used, by northern and western states. And nullification is not about "secession." It is an avenue for the states to operate "within" the Constitution and "preserve" the union.

Criticisms of nullification seem to involve a "nationalistic" interpretation of the role of government, versus the "compact theory" which acknowledges that the federal government was created by a "compact" between the states. I'm no attorney but it seems clear to me that the Constitution did not create the states, the individual states created the Constitution. Remember, the states voted individually, as sovereign entities, to ratify the Constitution, not in one single vote.

So what if the federal government threatens to withhold federal funding if a state does not abide by federal mandates? Of course, the answer is that this would be difficult for the federal government to do if several states asserted their right to rule null and void any federal law they found to be unconstitutional.

As Jones wrote, "the federal government can rant and rave all it wants. It won't matter."

-- The writer is Keith Pounds of Orangeburg. He is a Lebanon/Grenada-era veteran having served as a corpsman in the U.S. Navy and with the Marine Corps.

He holds an MBA with a concentration in organizational psychology and is the author of "The Psychology of Management." He can be contacted at Keith.Pounds@alumni.aiuonline.edu

 

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