Reclaiming Our Democracy (Part 2 of 2): Nullification
“Timid men prefer the calm of despotism to the tempestuous sea of Liberty.”
- — Thomas Jefferson
What is Government?
Why do we submit to the law?
We can’t run very fast. We have no sharp teeth or claws. Long ago it became obvious that it was in humanity’s self interest to ban together for our mutual security. We each give up a small amount of personal freedom, for the greater good of the whole. That is the basis of the social contract.
As citizens, our responsibility is to uphold the laws of government. The government, in turn, also has obligations. The bare minimum of those obligations are to protect the majority of people from enemies both foreign and domestic. What enemies do we wish to protect ourselves from? At the very least hunger, disease, invasion by hostile forces (external security), and threats to our self-governance (internal security).
So how are we doing in that respect? Lousy.
We all but wiped out hunger in the US shortly after the Kennedy administration (ended 1963), but the government intentionally reintroduced it in the Reagan administration to drive down worker wages. What is left of our health care system is sowing the seeds of its own destruction. Foreign NGO’s have been invited by the Supreme Court to financially manipulate campaigns and thus our government. Internal threats to self-governance are too numerous to recount here, and in any case the Supreme Court has abandoned all pretense that this was a democracy and officially ruled the US a plutocracy.
We are in essence living in a failed state. Just because I am writing about the US, don’t think your country is doing any better. Most of the Western world is in the same boat.
Other articles have detailed the complex road we took to get here. That is not the purpose of this series. This series discusses how we get out.
Specifically, how to tell our government “No!”
Is This the Government You had in Mind?
No one can make you feel inferior without your consent.–.Eleanor Roosevelt, ‘This Is My Story,’ 1937
At 5:00 am, on a cold April morning, armed state troopers and U. S. Marshals amass outside Rainbow Acres Farm, Pennsylvania. It is the culmination of a year long sting operation involving undercover agents purchasing contraband from the owner, Dan Allgyer. The payments were mailed to him or left at a drop-off point in Ziploc bags. Mr. Allgyer had the temerity to deliver the illegal substance to the agents across state lines in nearby Maryland, not once, but twenty-three times. Before the day is over, the authorities confiscate Mr. Allgyer’s product and shut down his operation.
In conservative Wisconsin, they take a dim view of such crime. Not only is this substance confiscated but one of the perpetrators is prosecuted for withholding information about his customers.
On the other side of the continent, four law enforcement officers draw their weapons. They burst into an unlocked facility in Venice, California to find seventeen coolers stuffed with contraband. The operation is coordinated with a raid of nearby repeat offender, Sharon Plamer. Twenty agents swarm Palmer’s facility for the third time in eighteen months, confiscating her black-market merchandise.
“I still can’t believe they took our yogurt,” a Rawsome volunteer told the L.A. Times. “There’s a medical-marijuana shop a couple miles away, and they’re raiding us because we’re selling raw dairy products?”
Yes, you read that right…milk. Dan Allgyer is an Amish farmer running community supported agriculture that produces fresh, whole, unpasteurized milk. Some of his customers travel over a hundred miles just to get this product. Sharon Palmer runs a CSA producing raw goat cheese.
The FDA is acting under a new law that provides “farm to table” control of food safety. It allows detentions, access to farm records, mandatory recall authority, and enforcement actions that don’t involve a pesky judge or courtroom. They argue they are protecting us from contaminated foods. This seems rather hard to swallow, given the year spent investigating an Amish farmer saw billions of contaminated eggs, peanut butter and beef consumed in this country with 9 deaths and 22,500 illnesses. Names implemented in the outbreaks included Cargill and Nestles.
Mike Adams with Natural News points out, “The real reason why the FDA opposes raw milk is because Big Dairy opposes raw milk. Just like Big Pharma, Big Dairy has worked very hard behind the scenes to steer FDA policy in its favor. And according to some recent reports, Big Dairy is one of the primary forces trying to eliminate raw milk because it threatens the commercial milk business.”–Dan Vogelsong
The last outbreak from milk was in 1985. The milk in question was pasteurized and approved by the FDA. Critics of the government’s behavior think they are wasting tax payer money conducting sting operations, raids and prosecutions on small farmers making a product that knowledgeable adults want to buy. I agree. So do 10 other state legislatures, that have made it legal to buy and sell raw milk, Pennsylvania and California among them. The FDA sights federal law supremacy in raids on producers in those states.
Is this the federal government you bargained for? Do you feel safer knowing your tax dollars went to raid an Amish farmer? Finding coop members who drink raw milk? When did minor agencies of the federal government get the power to overturn the will of The People of an entire state? Should the federal government be allowed to override the state laws and dictate what people put in their bodies? Would you feel differently if the product I was talking about was marijuana?
Checks and Balances:
The Tenth Amendment of the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.–Wiki
The Supremacy Clause of the Constitution:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.–Wiki
In the Federalist Papers, Madison and Hamilton both argue that the Supremacy Clause was necessary to unite the states and make the government whole. They argue that states carried as much independence as they could give them, without making them sovereign nations onto themselves. The federal government was only “supreme” as it pursued the Constitution and its Amendments, thus striking a balance between these two seemingly conflicting statements.
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." -- James Madison, the Federalist Papers, No. 4
The Supreme Court declared for itself the right to interpret the Constitution. In case after case, the Supreme Court, part of the federal government, has favored the Supremacy Clause over the Tenth Amendment.
It is not shocking that given the right to decide which law reigns supreme, the federal government favors its own law over the states on all occasions. But if the federal government (Supreme Court) gets to decided in each instance who gets the balance of power between the state and the federal government, there is no real balance of power. If the state can never say “no,” than neither can the people of that state via referendum. The Supreme Court has interpreted this check and balance out of existence.
Since its invention, the federal government has been claimed more power for itself than the Constitution permits. Lately, this includes regulation of intrastate commerce (Marijuana and Dairy Laws), when and where the Bill of Rights gets enforced (Occupy Wall Street raids, TSA, arrest and detentions, indefinite detention without due process by the President). Even the right to murder an American citizen in an extrajudicial execution. None of these are federal “powers” guaranteed by the Constitution. In fact most of these are expressly forbidden by the Constitution.
“No!” in the Constitution:
“The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”– Thomas Jefferson
The Founders of the Constitution did foresee a day when the government was no longer responsive to the majority of its people. They actually wrote legislation to try and guide us out of this dilemma.
The only legitimate course left to reestablish our self-governance at the federal level is to amend the Constitution. This can be done in two ways—both of them doomed to failure.
- Congress passes an amendment by a 2/3 vote.
- This is unlikely to occur because the vast majority sitting in Congress are there due to campaign contributions from corporations and the rich. We would be asking them to kill the goose that has laid their golden egg.
- A Constitutional Convention:
- This requires 2/3 of State Legislatures (34 states) to pass a resolution to call for a Convention.
- Congress is then forced to call a Convention. There is little guidance about how the citizens who attend such a Convention are chosen. This is the first way a Convention could be undone.
- Second, ¾ of states (38) must agree for an Amendment to be passed at the Convention.
- Finally, Congress gets their last chance to stop democracy. They do not get to vote on any Amendment the Convention proposes, but they do get to choose how the states are counted. Congress gets to choose between the delegates at the Convention or the State legislatures. State legislatures have been just as corrupted by money as the federal government.
- By the way, a Convention has never successfully been called in the United States under the Constitution. It is a risky process. Our initial government was completely rewritten by such a Convention when the delegates were only supposed to fix a few minor issues. A Convention could easily get out of control if it could get any traction at all.
Financial corruption runs the government, making Congress completely unaccountable to the people it governs. This negates our ability to regain power over our government, or even to decline to accept its authority, through federal law. We find ourselves in this peculiar Catch-22: We have lost our self-governance, but are unable to legitimately regain our self-governance without access to any self-governance.
There is no way for The People to veto the federal government. If federal law is allowed to override state law, it also overrides popularly elected law. It overrides The People and democracy. That is so easy to see in Arizona where a popular campaign finance resolution, passed by the majority of people, was overruled in favor of the rich by 5 Supreme Court Justices, who declared that money was free speech.
Bringing the law back under the control of the state, brings it back under the control of the referendum. It allows a veto power by The People. It also allows The Majority to create law.
In short, successful and desirable change to the Constitution that reinstates our self-governance is unlikely to happen in our current situation. If we are to claim the power of self-governance for ourselves once again, we will have to do one of two things:
- Violent, bloody revolution. (Not my favorite idea.)
- Think outside the box, and use the power of the many to rewrite the law. (A better alternative from my point of view.)
The Tenth Amendment, Then:
“…the several states composing the United States of America are not united on the principle of unlimited submission to their general government…”–Thomas Jefferson, Principles of 1798
The war between federal and state power started the second the Constitution was drafted. In the “Principles of ’98” Jefferson and Madison reacted to federal overreach by the Alien and Sedition Acts. This act made it a crime to publish “false, scandalous, and malicious writing” against the government or certain officials. The two statesmen argued that the law was a clear violation of the First Amendment and need not be heeded by the states. Nullification of this law passed in both the states where it was argued.
Jefferson argued that the Tenth Amendment was the superior law.
“the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Jefferson argued vehemently that states had the right and the duty not to obey unconstitutional law, even if passed by the federal government.
“whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force”
He further argued that if the federal government was to decide the limits of its own power, no limits would ever be discovered and the government would grow increasingly powerful.
The Tenth Amendment, Now:
"Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government" -- Thomas Jefferson
With no realistic way to change the law of the land due to control by monied forces, can we actually claim to be a self governing people? If the way to change our government is blocked by the government, a self governing people would simply scoff and change the rules. A people mentally harness into the belief that they must obey, even if what they obey is not in their self interest, can not claim to be self governing in reality.
What I am discussing here is a tool. A sharp knife can be used to prepare dinner, or to murder a person. It just depends on the purpose of the user. Like a sharp knife, states rights should be used as necessary and for the greater good. The tool itself is morally neutral.
If Nullification became common place, detractors argue, the law of the country would lack uniformity. States would be free to make foolish and abusive choices.
All true. That is the problem with democracy. It gives you the freedom to make your own mistakes. But if The People are prevented from making their own mistakes, it does not mean the rule of law will automatically be smart and just. Rule by the rich is likely to be more flawed than rule by the majority.
“The issue today is the same as it has been throughout all history, whether man shall be allowed to govern himself or be ruled by a small elite.” — Thomas Jefferson
States rights are always associated with slavery and the South battling against civil rights. The Tenth Amendment has been used for as many staunchly conservative ideas as progressive ones. One of the first to use the States Rights argument were the abolitionists who argued that they could nullify the Supreme Court’s decision to force escaped slaves to be returned to their owners as property. That story is almost never told in the history books.
Now, people of color face more economic hardship, unemployment, and prison time than whites. Jim Crow laws are coming back to suppress the black vote. The single most reliable indicator of whether a person will get the death penalty is if he is black and the victim is white. At the point where you can prove the state is taking a man’s life because of skin color, I think you can safely say protecting civil rights at the federal level has failed. Fearing states rights because they might lead to civil rights abuse does not seem rational under the circumstances.
States that make their own decisions are also be free to experience the consequences of those choices.
In “Alabama agriculture officials are stumped over how to keep farms operating now that the state’s draconian new immigration law chased away all of the low paid (however illegal) labor.”–AP
If the states wrest back their power, the US would become fifty separate experiments in democracy. The citizens of various states would be allowed to look at the variety of experiences and pressure their legislatures or write referendums to adopt what worked and abandon what did not. If the right is correct, the blue states will prosper. If progressives are right about how the world actually works, people will rally to bring our ideas to their states.
In the last post, I talked about a form of self-governance that mirrors the lowly millet seed: The same bill downloaded from a website, and run in state referendums simultaneously to achieve what we cannot accomplish at the national level.
The Tenthers are waging such a campaign. So far fourteen states have passed their nonbinding resolution. Six states have introduced legally binding State Sovereignty Bills: “The constitutional amendment to establish state grand juries, one called the Federal Action Review Commission, to hear citizen complaints about the constitutionality of the actions of federal officials or agents, and if it finds them unconstitutional, to authorize and direct non-cooperation with such actions by state officials, agents, and contractors; and the second kind to investigate official misconduct and public administration.”
10th Amendment Resolution
The following is a sample 10th Amendment House Concurrent Resolution approved by the Tenth Amendment Center. Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this resolution in your state.
A RESOLUTION affirming the sovereignty of the People of the State of _________.
WHEREAS, in the American system, sovereignty is defined as final authority, and the People, not government, are sovereign; and
WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal government; and
WHEREAS, all power not delegated by the people to government is retained; and
WHEREAS, the People of the several States comprising the United States of America created the federal government to be their agent for certain enumerated purposes only; and
WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and
WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government in the Constitution of the United States, and also that which is necessary and proper to carry into execution those enumerated powers; with the rest being left to state governments or the people themselves; and
WHEREAS, powers, too numerous to list for the purposes of this resolution, have been exercised, past and present, by federal administrations, under the leadership of both Democrats and Republicans, which infringe on the sovereignty of the people of this state, and may further violate the Constitution of the United States; and
WHEREAS, when powers are assumed by the federal government which have not been delegated to it by the People, a nullification of the act is the rightful remedy; that without this remedy, the People of this State would be under the dominion, absolute and unlimited, of whoever might exercise this right of judgment for them.
NOW THEREFORE, BE IT RESOLVED BY THE _____ OF THE _______ GENERAL ASSEMBLY OF THE STATE OF ______, WITH THE SENATE CONCURRING, that we hereby affirm the sovereignty of the People of the State of _______ under the Tenth Amendment to the Constitution of the United States over all powers not otherwise delegated to the federal government by the Constitution of the United States; and, be it further
RESOLVED, that this Resolution shall serve as a Notice and Demand to the federal government to cease and desist any and all activities outside the scope of their constitutionally-delegated powers; and, it be further
RESOLVED, that a committee of conference be appointed by this legislature, which shall have as its charge to recommend and propose legislation which would have the effect of nullifying specific federal laws and regulations which are outside the scope of the powers delegated by the People to the federal government in the Constitution; and, be it further
RESOLVED, that a committee of correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship as currently exists; that it considers union, for specified national purposes, and particularly those enumerated in the Constitution of the United States, to be friendly to the peace, happiness and prosperity of all the States; and, be it further
RESOLVED, that a certified copy of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives, and to each member of this State’s Congressional delegation with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.
I know you’re itching to comment on this one, so go ahead. Tell me how you would rewrite the bill to make it better. Or tell me why it won’t work at all. Tell me your idea to recapture our ability to self-govern.
I also know this post was heavy with US law and history. Other Western nations are similarly constructed and parallels can be drawn. I welcome commentary from those with knowledge of other nation’s law about this subject.