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Stopping the Federal Government Expansion Through Nullification
With the hard left looking to stack the Supreme Court, to eliminate the filibuster, and to take national control of all election laws – changing them in ways designed to benefit the hard left – the question of how to resist starts to take center stage. In my last article, I discussed what America would look like, should the hard left get their way. Part one can be found here: America 2.0 – Rule of the Hard Left.
Two methodologies are being thrown around. Actually, there are three, but I am not advocating the violent overthrow of the federal government (I hope such a thing never becomes necessary), so I am focusing on methods that fall short of armed revolt. One method is a Convention of the States, and the other is the process of Nullification. Both methods are as old as our nation.
I do not believe a Convention of the States is viable, for a number of reasons. One is that I think Democrats at the Federal level would successfully ignore it. There is no reason to believe that a Federal Government that ignores the Constitution would recognize whatever changes a Convention of States makes. The Federal Government would, rather, declare the Convention of States to be illegal (they may even call it an attempted insurrection), and they would call whatever the Convention of States agrees on to be null and void, based on the Convention of States having no authority over the Federal Government.
Someone is going to point out that the process for a Convention of States is IN the Constitution. Yes, it is. But legal power and physical power and two separate things, and the physical power are held by the Federal Government. Unless the Federal Government accedes to what the Convention of States agrees on, the Convention of States has no teeth.
Another reason I am against a Convention of States is that it would essentially craft a new Constitution, and I don’t think they can do a better job than did our founding forefathers. Besides ensuring that our founding values are afforded to ALL Americans (something amendments to the Constitution have already achieved), I don’t see how the Constitution can be improved.
I am against a Convention of States because I don’t think it would address the root problem of a Federal Government ignoring its defining document. I mean, seriously – if the Federal Government will not abide by our existing Constitution, why on Earth would we think it would abide by a new one? Perhaps it would work for a while, but encroachment would invariably occur all over again – and much faster than it did the first time.
The answer is not a Convention of States. The answer is to take the role of interpreting the Constitution away from the Supreme Court, where five people can decide it means something other than what it says, and to give that role to the people the framers of the Constitution wanted to have it – the states. This is done through nullification.
Nullification is the process of a state government passing laws that declare federal laws unconstitutional, and that make it expressly illegal for those laws to be enforced within that state’s borders.
The first time nullification was used back in 1832 when South Carolina passed a bill nullifying what it thought was an unconstitutional tariff law. The Federal Government, under Andrew Jackson, responded by passing the Tariff Act of 1832, along with the Force Bill, authorizing Andrew Jackson to raise an army and invade South Carolina.
South Carolina nullified the Tariff Act of 1832 as well, bringing the disagreement to a real head. Vice President John Calhoun was a vocal proponent of nullification, and Andrew Jackson threatened to have him hung, but in the end, John Calhoun did not hang, and Andrew Jackson did not invade South Carolina. Congress, rather, passed the Tariff Act of 1833, which alleviated South Carolina’s concerns, and the crisis ended peacefully.
Other examples of nullification include all of the ‘sanctuary city’ and ‘sanctuary state’ laws, where cities and/or states have passed laws making the enforcement of federal immigration laws illegal (though the left never claimed federal immigration laws to be unconstitutional), and – even more recently – the passage of ‘sanctuary state’ laws related to the 2nd Amendment. Florida is utilizing nullification to prevent the teaching of Critical Race Theory, undercutting policies being created by the Federal Department of Education.
Both parties have used nullification in recent years.
Republicans currently control 26 states. The aggressive use of nullification by ten, twelve, or 26 Republican-controlled states could force a national conversation on the Federal Government’s role under the United States Constitution, as per the 10th Amendment. If South Carolina could force changes to a Tariff Act by nullifying it, what could ten or twelve Republican-controlled states force? What could 26 Republican-controlled states force?
I don’t just want nullification over 2nd Amendment issues, and/or Critical Race Theory either (though that is a great place to start). I want nullification on a massive scale. I want each state to form a commission that will pour through federal laws, regulations, policies, and the like. That will list out everything the federal government does that is unconstitutional. State legislatures can then look through those things, and nullify as appropriate.
The Biden Administration would take what they think is the weakest nullification law to federal court, claiming that the Supremacy Clause precludes nullifying federal law. The state would argue that the 10th Amendment clearly shows that any federal law that is not constitutional cannot be enforced upon the states, and would reiterate that whatever law the Federal Government is suing over is unconstitutional.
If the Supreme Court upholds nullification, the Biden Administration would be in serious trouble, and we would start to see radical change, as states reassert their 10th Amendment powers, and as the Federal Government begins to recede back into its constitutional limits.
If the Supreme Court decides that the Supremacy Clause outweighs the 10th Amendment, or starts to uphold the constitutionality of laws that are CLEARLY unconstitutional, states would assert that the Supreme Court of the United States does not have the final say in interpreting the Constitution (the individual states do), and would ignore the Supreme Court.
The Biden Administration would threaten to withhold federal funding from states that nullify federal laws. Republican-led states would threaten to nullify federal tax laws.
Joe Biden does not have the balls to invade Republican-led states, and nor does the public have the stomach for doing so. Secession may lead to invasion, but nullification would not. As a consequence, at the end of the day, Joe Biden would have but two choices – ignore the fact that Republican-led states are nullifying everything the Federal Government does that is unconstitutional (in which case we can all move to those states, and live happily ever after), or negotiate (leading to real change in the nature of the Federal Government, and the restoration of our Republic).
I’m guessing that Joe Biden would try to ignore the states that are nullifying laws, as that is the least confrontational path. Still, the longer the Federal Government goes without taking steps to address nullification, the more entrenched the process would become, strengthening the negotiating positions of the Republican-led states. At some point, I believe compromise would occur.
What would compromise look like? My best guess – and recommendation – would be that the Federal Government would allow states to choose whether or not to participate in things that are unconstitutional, and would spin those things off to the states that do not participate. California might decide to stay in the current Social Security system, but Texas might decide to take that program over, and might then, over time, make changes to it. The same thing is true with Medicare, Medicaid, much of what the EPA does, the Department of Education, and a very large number of other things. Over time, I think even more liberal states would take many of these things over, making changes that better reflect their liberal values.
The point is that the Constitution does not give the Supreme Court the right to interpret the Constitution – it only gives it the right to interpret laws that fit under the Constitution. The Constitution does not, in fact, specify how the Constitution should be interpreted. Based on writings from the time, the founders believed the states would keep the federal government in check. If the Federal Government cannot convince the states that something is constitutional, that thing probably is not.
Nullification checks all the boxes: it is a peaceful solution that not only can be used to reign in an expansive Federal Government, but can also keep that government in check.
Write to your governor, and write to your representatives in your state legislature. Share this article with them. Implore them to follow it. Individual people cannot effectively resist the Federal Government, but individual states can. Our country’s survival depends on it.
Part one: America 2.0 – Rule of the Hard Left.
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Mr. Wallace Garneau,
Bravo! This makes so much sense. It is without a doubt the way forward by which we may avoid Leftist domination which would inevitably lead to another Civil War, neither of which are desirable. It looks to me like the States are already instinctively moving toward Nullification. Your article is a distillation that makes the solution crystal clear.