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Federal Law Nullification: 10th Amendment States Right?

Burning the Constitution

The Constitution is going down in flames.

The enormous size of the federal government is not very popular either. A Gallup poll conducted last September found that more than half of Americans believe that “the federal government has too much power.” Unpopularity aside, keep in mind that history has well established that government cannot grow without a corresponding decline in the economy, peace, and the rule of law. One need look no further than past empires to see what fate awaits a citizenry that concentrates all its power in one central government. How is it then that the U.S. government has morphed from a limited Republic designed by the Constitution to a virtually all-powerful behemoth? How did the Constitution, which was designed to carefully define and limit the powers of the national government, become an open-ended grant of power to that very same government? Perhaps an answer can be found in the U.S. Supreme Court, the entity “conventional wisdom” believes is entrusted with the sole power to interpret the Constitution.

A federal government website, “Ben’s Guide to U.S. Government,” contains a cartoon version of Ben Franklin explaining how our current system of government works. The site includes the following proclamation: “One of the Supreme Court’s most important responsibilities is to decide cases that raise questions of constitutional interpretation. The Court decides if a law or government action violates the Constitution.… Since the Supreme Court stands as the ultimate authority in constitutional interpretation, its decisions can be changed only by another Supreme Court decision or by a constitutional amendment.” (Emphasis added.)

What’s wrong with this you might ask? New York Times best-selling author and historian Thomas Woods provided the answer clearly and concisely at the Campaign for Liberty’s January 15 regional meeting when he discussed the views of Thomas Jefferson: “Jefferson’s concern was that if we say the federal government has a monopoly on interpreting the Constitution, what do you think is going to happen? This is not brain surgery. If they have a monopoly on interpreting the Constitution, they’re going to interpret it in their own favor. Surprise! Then we all scratch our heads and wonder, ‘Why has the government gotten so completely out of control?’” Woods hammered home how completely preposterous it is for the Supreme Court to have the sole and final say on the extent of federal power with the following analogy: “If you enter into a contract with somebody, never, ever would you say that the other party in the contract can exclusively interpret what it means…. Obviously, if only one party in a contract can interpret it, it’s going to interpret it in its own favor!”

The Rise of the “Tenthers”
Proponents of the 10th Amendment to the U.S. Constitution have been starting to rise up en masse to remind the national government of its proper constitutional role under the principles of federalism. This loose network of activists, widely referred to as the state sovereignty movement or Tenth Amendment movement, were given the derisive nickname “tenthers” by detractors, but in a witty reversal, they gladly adopted the label. The Tenth Amendment Center, the major hub online for state sovereignty activism, has even renamed its blog, “the tenther grapevine.”

Typically, the response by some of the biggest names in the news media has been to actively disparage anyone who strictly adheres to the original understanding of the U.S. Constitution. David Shuster of MSNBC proclaimed that most “people in their right-thinking mind know that the Tenth Amendment is a bunch of baloney.”

Fellow MSNBC news anchor Lawrence O’Donnell, filling in for Keith Olberman, also raged against what he ridiculed as “tenthers” — individuals who believe in the Jeffersonian principles of a government limited to the powers specifically enumerated within the four corners of our founding document: “The tenther movement … erroneously claims that the federal government cannot force changes in health care law on the states.”

In O’Donnell’s view, anyone who would make such a claim is clearly ignorant and trying to dredge up areas that are now settled law. But what can be more settled than the fact that words have meaning, and the Constitution means what it says? Consider the clear language of the 10th Amendment: “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.” Yet Supreme Court justices and others ignore and circumvent language such as this, based on the absurd theory that the Constitution must be constantly redefined to fit our “enlightened times,” with the power of constitutional interpretation vested solely with the federal government.

O’Donnell and similar critics should read some of the speeches of our seventh Vice President, John C. Calhoun, who warned that such a viewpoint would destroy the Republic and pave the way for tyranny. Calhoun addressed this directly in his Fort Hill address:

Stripped of all its covering, the naked question is, whether ours is a federal or a consolidated government; a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the States or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, and violence, and force must finally prevail. Let it never be forgotten that, where the majority rules without restriction, the minority is the subject; and that, if we should absurdly attribute to the former the exclusive right of construing the Constitution, there would be, in fact, between the sovereign and subject, under such a government, no Constitution, or, at least, nothing deserving the name, or serving the legitimate object of so sacred an instrument.

Calhoun was but one of many of the most prominent advocates of state sovereignty throughout American history who were true believers in limited government. (For more of a historical explanation, see our article “Nullification in a Nutshell.”)

More At: The New American

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