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August 6th, 2010

Checking the Federal Government Together

By Nathan Tucker

The recent discussion over nullification and the 10th Amendment has shown that there is a wide-spread desire for additional constitutional checks on the federal government.  Many supporters of nullification are attracted to it, not necessarily because they understand or agree with the theory behind it, but because they see it as the only means of keeping Congress within its constitutional boundaries.

Much like an executive order staying court decisions, people see nullification as the means to control a government that they no longer feel any control over.  Doubtless the Founders would have added additional checks and balances into the Constitution if they could have foreseen the rise of the modern social state controlled by Washington, but their failure does not justify us in reading our own remedies into the Constitution.

The desire for results, no matter how desirable, is no excuse for the use of power if that power is illegitimate.  That is the hard task of the law, especially when that law is the fundamental will of the people expressed in a written Constitution.  It is important, then, to understand whether or not our desired remedy has any constitutional authority before we seek to implement it.  If it doesn’t, then we should focus our energies on passing constitutional amendments that would legitimize effectual checks on federal authority.

As we put aside our desire for immediate, tangible results to honestly examine the issue of nullification, the very first question we encounter is whether the Constitution was formed by We the People or by the states.  If it is formed by We the People, the states are not a party to this contract and have no more ability to interfere with federal laws than our local municipalities, school boards, or the UN.

If We the People formed the Constitution, then only we have the power to judge whether or not the federal government has overstepped the power we delegated to it and, if so, to elect new representatives, amend the Constitution, or engage in civil disobedience.  However, if the states delegated some of their authority to the federal government, then they would have the sole right to judge whether or not that delegation has been usurped.

That the federal government was created by We the People rather than the states can be abundantly seen in the fact that federal officials are elected by the people and are uncontrollable by the states.  Additionally, new states, though undoubtedly formed by the voters in each territory, enjoyed none of the traditional characteristics of a sovereign independent state and, therefore, were incapable of delegating any authority to the federal government.

But the most convincing evidence of all are the words of those who drafted and ratified the Constitution, which clearly demonstrate that it was an act of We the People rather than a compact of the states.  In the years after the Constitution was ratified, individuals and states have advocated the theory of nullification and state’s rights to stop overreaching by the federal government.  But, no matter how laudable those efforts may have been, these acts and words spoken after the act of ratification are no more guides to interpreting the Constitution than ObamaCare and No Child Left Behind are.

The overwhelming evidence, therefore, is that We the People formed the Constitution, and consequently only we can be the judges of whether or not the federal government has overstepped the authority we delegated to it.  The Tenth Amendment is subsequently irrelevant to this discussion because We the People have taken from the states their authority as sovereign, independent states, including the power to interfere with our contract with the federal government.

As several of the state ratifying conventions made clear, only We the People have the power to resume the sovereign power we have delegated to the federal government if it oversteps its authority.  It follows, then, that the power to nullify federal laws is simply not a reserved power under the Tenth Amendment because that amendment is incapable of reserving power to the states that they do not and cannot possess.

Since there is no constitutional authority for nullification, we must abandon our quest for an easy but illegitimate solution and focus our efforts on passing amendments to the Constitution that would enable us to better restrain the federal government within its constitutional straightjacket.

Though that may seem like an insurmountable hurdle, federal constitutional amendments tend to come in waves of two-to-five at a time, spurred on by a new generation adding its own addendum to the Constitution.  The last such wave was in the 1960’s, and it is time for another wave to provide two-thirds of the states with a veto over federal legislation, correct the misinterpretation of the Tax & Spend and Commerce Clauses, a balanced budget amendment, repealing the 16th (income tax) and 17th amendments, provide for judicial term limits, establishing a temporary stay of court decisions, etc.

This discussion over nullification, began in good faith, was never intended as a “hit piece.”  Rather, its purpose was to encourage all who abhor the unconstitutional growth of the federal government to put our energies towards a common goal that we can all agree on.

We the People are the ultimate sovereigns, and the time is now for us to unite together to take aggressive steps via constitutional amendments to push the federal government back into its constitutional sphere.  To that end, we need to elect state and federal officials who, rather than advocating for nullification, will work to pass such amendments to the U.S. Constitution.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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