NEW PUSH FOR LIMITS ON WASHINGTON POWER
March 4, 2014 Leave a comment
Convention of states would throw ‘wrench’ into progressive juggernaut
by Bob Unruh | World Net Daily
Whether in early 2017 it’s President Hillary Clinton, President Jeb Bush, President Chris Christie, President Joe Biden or someone else, the individual occupying the Oval Office would face new limits on executive orders, Commerce Clause actions, a balanced federal budget and a ban on using international treaties to govern inside the U.S. if a state-based movement is successful.
There could even be term limits for Supreme Court justices and Congress, and a mandatory sunset of all existing federal taxes.
The ideas are being discussed in legislatures where a Convention of the States has been proposed, according to an organization known by that very name.
The Convention of States Project, launched by Citizens for Self Governance, is working to have state lawmakers call such a convention through the Constitution’s Article V.
Thousands of Americans already have signed on in support of the idea that Americans, themselves, need to address Washington’s massive spending, over-regulation and takeover of authority from states.
State lawmakers in Alaska, Georgia, Alabama, Florida and elsewhere are now looking at plans that if approved would be submitted to Congress in support of a convention.
Michael Farris, who has been know for years as the face of the Home School Legal Defense Association and Patrick Henry College, now is on the front line of seeking a convention in which state delegates would meet, agree on a path for the country and then tell Congress what will happen.
Exactly that, if the amendments are proposed at the convention and ratified by the states.
The organization proposes a convention for “the purpose of limiting the power and jurisdiction of the federal government.”
“We believe the grassroots is the key to calling a successful convention,” the promoters say. “The goal is to build a political operation in a minimum of 40 states, getting 100 people to volunteer in at least 75 percent of the state’s legislative districts. We believe this is very doable. Only through the support of the American people will this project have a chance to succeed.”
Among the issues that could fall under the single subject would be a balanced budget amendment, a new definition of the General Welfare Clause, a redefinition of the Commerce Clause, a ban on the use of treaty provisions inside the U.S., limits on executive orders, term limits for Congress and the Supreme Court, federal tax limits and a sunset of all existing federal taxes.
“Of course, these are merely examples of what would be up for discussion,” the promoters say. “The convention of states itself would determine which ideas deserve serious consideration, and it will take a majority of votes from the states to formally propose any amendments.”
Farris told WND he expects support for a convention to be gathered over a period of two to three legislative cycles.
The timing would align with the 2016 presidential election.
Farris said it definitely would throw a wrench in the works.
“In my opinion, a good wrench,” he said. “We are convinced that Washington, D.C., is broken and that it will never, ever fix itself.”
He said all three branches need fixing.
“The judiciary legislates, the legislative branch, the Congress uses power it never was intended to have, and the president misuses power worse that George III ever thought of,” he said.
He earlier told WND that Washington, D.C., “will never voluntarily relinquish power.”
“If we allow Washington, D.C., to continue on its current course of big government, it will utterly destroy American liberty. Debt is the most tangible method of destruction. But big government complete with spying on the American public, the improper use of executive orders, over-regulation, etc., etc., will most certainly destroy American liberty relatively soon.”
Farris said trying to elect more conservatives hasn’t worked, and there really shouldn’t be a fear that the Constitution would be opened up to destruction. After all, any change would have to be approved by votes in 38 states.
“The Founders gave us Article V for the very purpose of creating structural change when the federal government abuses its power,” Farris said. “State legislatures control this process from beginning to end. Governors are irrelevant. Congress can only name the time and place. State legislature name the delegates and give them their instructions.
“We will either get good amendments or we will get nothing,” he continued. “The people who must approve the work product – state legislatures – are the ones who name the delegates. They are also the ones who give the convention its subject matter.”
Would anyone be interested in the idea of removing federal officials?
“State legislatures currently have no power to impeach federal officials from their states. This is not a viable option. This would, however, be a proper amendment to suggest at the Convention of States we are proposing. I like the idea of giving the state governments the power to impeach congressman and senators from their states,” Farris said
“The federal courts regularly refuse to rule on constitutional issues they want to avoid by calling them ‘political questions’ or by claiming that no one has standing to sue … One of my ideas for an amendment would be to automatically grant state legislatures standing to challenge any action of the federal government as violating its constitutional limitations,” he said.
There also could be a fix to the problem of an entrenched Supreme Court.
“I [would] propose reconfiguring the Supreme Court after the model of the European Court of Human Rights. There are 46 nations in that court’s jurisdiction, and every nation appoints one judge. We should expand the Supreme Court to 50 justices and have the states appoint the justices for a specific term (six or eight years) with no right of reappointment. That one change would do more to ensure a constitutional government than anything I know,” Farris said.
The Convention of States Project contends that “who decides what the law shall be is even more important than what is decided.”
“The protection of liberty requires a strict adherence to the principle that power is limited and delegated,” the organization explained.
Even the Supreme Court has acknowledged the federal government has overreached, stating in a 1992 case: “The federal government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the federal government, rather than the states, would assume such responsibilities.”
The organization has posted details of how state legislatures can advance the project.
AN ARTICLE V CONVENTION IN OUR FUTURE?
The efforts to get Congress to call amendments conference
by Phyllis Schlafly | World Net Daily
August 27, 2013
Attacks on the U.S. Constitution are coming from all sides. The New York Times opened its op-ed page to several liberal professors of government: one calls our Constitution “imbecilic,” another claims it contains “archaic” and “evil provisions,” and a third urges us to “rewrite the Second Amendment.”
Out of exasperation with the flouting of the Constitution by Barack Obama and his acolytes, and the way Congress is letting them get by with these violations, several conservative authors and pundits are promoting the calling of a national convention to propose amendments to the Constitution. They believe a series of amendments can put our country on a wiser path.
The authority for such a procedure is Article V of our Constitution, so they are calling their plan of action an Article V convention. However, they are fooling themselves when they suggest that Article V creates a path to bypass Congress with a “convention of states.”
The only power the states have under Article V is the opportunity to submit an “application” (petition) humbly beseeching Congress to call a convention. Hundreds of such applications have been submitted over the years, with widely different purposes and wording, many applications were later rescinded, and some purport to make the application valid for only a particular amendment such as a federal balanced budget or congressional term limits.
Article V states that Congress “shall” call a convention on the application of two-thirds of state legislatures (34), but how will Congress count valid applications? We don’t know, and so far Congress has ignored them anyway.
If Congress ever decides to act, Article V gives Congress exclusive power to issue the “Call” for a convention to propose “amendments” (note the plural). The Call is the governing document that determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid and who will be the chairman.
Article V also gives Congress the power to determine whether the three-fourths of the states required for ratification of amendments can ratify by the state legislature’s action or by state conventions.
The most important question to which there is no answer is: How will convention delegates be apportioned? Will each state have one vote (no matter how many delegates it sends), which was the rule in the 1787 Philadelphia convention, or will the convention be apportioned according to population (like Congress or the Electoral College)?
Nothing in Article V gives the states any power to make this fundamental decision. If apportionment is by population, the big states will control the outcome.
Article V doesn’t give any power to the states to propose constitutional amendments, or to decide which amendments will be considered by the convention. Article V doesn’t give any power to the courts to correct what does or does not happen.
Now imagine Democratic and Republican conventions meeting in the same hall and trying to agree on constitutional changes. Imagine the gridlock in drafting a constitutional plank by caucuses led by Sarah Palin and Al Sharpton.
Everything else about how an Article V convention would function, including its agenda, is anybody’s guess. Advocates of an Article V convention can hope and predict, but they cannot assure us that any of their plans will come true.
If we follow the model of the 1787 convention, will the deliberations be secret? Are you kidding? Nothing is secret any more. What are the plans to deal with protesters: the gun-control lobby, the gay lobby, the abortion lobby, the green lobby, plus experienced protesters trained by Obama’s Organizing for Action, at what would surely be the biggest media event of the year, if not of the century?
There is no proof that the VIPs promoting an Article V convention have any firsthand knowledge of the politics or procedures of a contested national convention. Don’t they realize that the convention will set its own agenda and that states will have no say-so over which amendments are considered?
A recent example of how a convention chairman wielding the gavel can manipulate what happens is the way the 2012 Democratic National Convention chairman ruthlessly called the vote wrong when a delegate tried to add a reference to God in the party platform. The chairman got by with declaring the amendment passed even though we all saw on television that the “Noes” won the vote.
The whole process is a prescription for political chaos, controversy and confrontation. Alas, I don’t see any George Washingtons, James Madisons, Ben Franklins or Alexander Hamiltons around today who could do as good a job as the Founding Fathers, and I’m worried about the men who think they can.
ARTICLE V CONVENTION: DANGEROUS PRECEDENT, DANGEROUS LOYALTIES
Written by Joe Wolverton, II, J.D. | The New American
February 13, 2014
The various purportedly unrelated efforts by self-professed conservatives, socialists, and progressives to call for a new constitutional convention are moving forward. Many otherwise well-meaning state legislators are falling for their common line that such a convention is the only way to save the Republic.
The self-professed conservatives, on one hand, insist that if a new convention isn’t held, the growth of the federal government will go on forever until all power is consolidated in Washington, D.C.
Their socialist and progressive collaborators, however, are pushing for an Article V convention as a means of finally changing all the things they believe are wrong about our form of government.
Rhetoric and political leanings aside, the result of either scenario is a new Constitution. Of course, the Convention of States (COS), the Compact for America, and other Article V proponents on the right, argue up and down that they are not calling for a new constitutional convention. Then, as if that weren’t enough, they criticize those of us who oppose their movement for being “false constitutionalists,” and for believing that the Constitutional Convention of 1787 was a “runaway” convention.
Whither the Articles of Confederation?
If the Constitutional Convention of 1787 was not a runaway convention — that is to say, a convention whose result did not exceed its authorized mandate — then the Article V supporters would be pushing for amendments to the Articles of Confederation, because that document would still exist, albeit in amended form!
Follow me, here. If the convention held in Philadelphia in 1787 had confined itself to the narrow purpose for which it was called by Congress — to propose and vote on amendments to the Articles of Confederation — then we would still be living under that first constitution, not the one that came out of the Philadelphia convention.
We got lucky in 1787. Throughout that summer, the future of our country was in the care of men such as James Madison, James Wilson, Benjamin Franklin, Alexander Hamilton, etc. Before you sign on to the current call for a constitutional convention, ask yourself this question: Will the men and women who would be in attendance there be of the calibre of our Founders? Would you trust them to rewrite or “tweak” the Constitution with the same care, erudition, and commitment to timeless principles of liberty demonstrated by our illustrious Founding Fathers?
On that subject, there is one important point that needs to be made that will perhaps illuminate one of the most frightening aspects of an Article V convention.
Plan vs. Product
James Madison is called the Father of the Constitution, but is he really? There is no doubt that were it not for his able arguments and his shepherding in the House of Representatives there would be no Bill of Rights. But look at the plan — the Virginia Plan — that he wrote and his colleague Edmund Pendleton proposed at the Constitutional Convention of 1787. That blueprint and the Constitution that was eventually approved at that convention have very little in common.
There isn’t space in this article to lay out all the differences between the two plans, but readers are encouraged to compare them and realize that very little of what Madison intended ended up in the final product of the Philadelphia convention.
What difference does that make, you may ask. It makes a big difference. Imagine that you agree with the amendments that have been drafted by the COS or Compact for America. Imagine, furthermore, that you believe that once the doors close on this new convention there will be delegates who propose these amendments. At that point, remember the Virginia Plan. There will be other delegates at that convention, delegates committed to less-than-conservative causes who will bend and shape any proposal into something that likely will bear as little resemblance to the COS/Compact for America draft amendment as the current Constitution does to Madison’s Virginia Plan.
The men behind these balanced budget, term limits, and other proposals overestimate their ability to have their way at a convention. All the ALEC (American Legislative Exchange Council) money in the world won’t buy the cooperation of the socialists who are slavering at the thought of getting their hands on our Constitution.
Perhaps those who identify as conservatives pushing for the constitutional convention genuinely believe they can not only compose amendments that will survive the innumerable legal challenges that will undoubtedly plague them, but that they are possessed of the skill and sway necessary to get the Soros-funded progressive bloc of the convention to go along with them. It will never happen.
Article V Promoters: Where do Their Allegiances Lie?
Speaking of ALEC, there is much to be feared in this organization’s influence over the Article V convention movement. As this reporter has chronicled in other articles, ALEC was the engine that drove last year’s Mount Vernon conference. While there may be some good points in the ALEC agenda, there is also much that would prevent members from devoting themselves 100 percent to the cause of the Constitution.
For example, in the program for the ALEC board meeting held in August 2013, state chairs are asked to “put the interests of the organization first.” Is that the pledge of allegiance that you would expect delegates to a convention that could change the Constitution to be loyal to?
When the doors close at the convention and the gavel falls, can you be certain which pledge of allegiance the ALEC-associated delegates will be loyal to: that to ALEC and its lengthy roster of corporate sponsors or the one they swore to the Constitution? At that critical moment in our history, will they care more about the Constitution or more about the millions in campaign contributions?
No one can say with certainty, and that is too big a chance to take when we’re talking about the future of our Constitution and the liberties it protects.
Before signing off on any call for a convention, readers would be wise to investigate the matter and see if the state legislators sponsoring the Article V proposal have ties to ALEC. If they do, perhaps those lawmakers should be asked to declare their allegiance before they are entrusted with “fixing” our Constitution.
On that point, if these state legislators were as committed to federalism, states’ rights, and forcing the federal beast back inside its constitutional cage as they say, wouldn’t they be on record opposing the acceptance of even a single cent of federal grant-in-aid money? Wouldn’t they be on record offering and voting in favor of bills to declare state economic independence from the federal government?
Check the data. Most states receive at least one-third of their budget funds from the federal government. It hardly seems consistent with a commitment to state sovereignty to shake one’s fist at Washington with one hand while cashing its checks with the other. The facts don’t lie.
Responsibility to Research
Finally, dear readers, the pro-Article V coalition is banging the convention drum so loudly that it is sometimes difficult to hear the arguments against it. That is understandable as there is much that is attractive about the various Article V proposals. The problem, as has been laid out in this and the other articles in the series, is that once you scratch off the enticing conservative coating, you find a very bitter progressive, corporate-funded, and self-serving pill — one that if swallowed, would be fatal to our Republic.
The undeniable fact is that there is nothing other than proponents’ promises that can guarantee the rose-colored, conservative outcome promised by the COS, Compact for America, and other groups calling for this convention. Before jumping on that bandwagon, though, every one of us is under an obligation to do the research. To that end, several enlightening links are provided in this article and the others that were published previously.
Balanced budget amendments, term limit amendments, and the various other “power to the people” amendments backed by the socialist wing of the Article V movement are all, in one way or another, contrary to the intent of the Founders and to the principles of liberty they enshrined in the Constitution.
Remember, no matter how “conservative” or “constitutional” a group or individual claims to be, if their proposed amendments change the basic structure of the Constitution or alter even in the slightest the delicate balance of power provided by the Constitution, then you should realize that although their lips draw near to the Founders, their hearts are far from them.
WALL STREET JOURNAL TAKES NOTICE: NULLIFICATION “TREND IS SPREADING”
Written by Joe Wolverton, II, J.D. | The New American
January 27, 2014
Although some self-described “conservatives” now claim that nullification is unconstitutional, others view nullification as a proper and constitutional approach for checking federal overreach and are working to apply this approach through state legislatures. Taking notice, the Wall Street Journal published an article on its website sketching the various efforts across the country to nullify unconstitutional acts of the federal government.
As the Journal article reports, state legislators in California, South Carolina, Tennessee, Georgia, West Virginia, Oklahoma, Missouri, and Indiana are stepping up and stopping the enforcement of various federal acts within the borders of their states.
The “trend,” the author writes, is “spreading.” It would need to, to match the spread of the federal kraken’s tentacles into every aspect of life and into every fundamental liberty guaranteed by the Constitution.
Specifically mentioned in the Wall Street Journal piece are federal attempts to regulate firearm possession, to build National Security Agency (NSA) listening posts in several states, and to force Americans regardless of ability or desire to purchase an approved health insurance plan.
Regarding this last overreach, the Wall Street Journal reports, “Conservative lawmakers in at least seven states have proposed laws that would prohibit state agencies and officials from helping the federal government implement the federal healthcare law and would authorize the state’s attorney general to sue violators.”
At The New American, we will continue to publish and praise every attempt by state lawmakers to check federal usurpation and to nullify every one of its unconstitutional acts, every time.
In “clarification” of its article on nullification, the Wall Street Journal notes:
An earlier version of this post stated that such state laws seem to implicate the U.S. constitution’s Supremacy Clause, which says that federal law trumps state law when the two conflict. Rather, such laws might be allowed under Supreme Court rulings that, with some exceptions, prevent Congress from compelling state officials to execute federal law.
That update corrected half of the mistake, but revealed another error.
First, let’s dismiss this recurring and ridiculous idea that somehow any federal law “trumps state law when the two conflict.”
The “Supremacy Clause” (as some wrongly call it) of Article VI does not declare that federal laws are the supreme law of the land without qualification. What it says is that the Constitution “and laws of the United States made in pursuance thereof” are the supreme law of the land.
Read that again: “in pursuance thereof,” not in violation thereof. If an act of Congress is not permissible under any enumerated power given to it in the Constitution, it was not made in pursuance of the Constitution and therefore not only is not the supreme law of the land, it is not the law at all.
If only every journalist, every talk show host, and every state legislator could understand this simple fact: Whenever the federal government passes any measure not provided for in the limited roster of its enumerated powers, those acts are not awarded any sort of supremacy. In that case, they are “merely acts of usurpation” and do not qualify as the supreme law of the land. In fact, acts of Congress are the supreme law of the land only if they are made in pursuance of its constitutional powers, not in defiance of that authority.
The Founding Fathers understood this. For example, speaking at the convention considering ratification of the new Constitution in New York, part-time Constitutional Convention attendee Alexander Hamilton said:
I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.
He put a finer point on the subject in The Federalist, No. 33:
There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.
Other founders, speaking in other state ratification conventions, expressed the same understanding of the “supremacy” of federal law.
At the Pennsylvania convention, signer of the Declaration of Independence Thomas McKean said:
The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states.
Down in North Carolina, Federalist leader and famed jurist James Iredell echoed the theme:
When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.
Couldn’t be much clearer than that.
Next, to his credit, the author of the Wall Street Journal article mentions that a Supreme Court ruling “might” “prevent Congress from compelling state officials to execute federal law.”
Although he doesn’t identify it, the tactic referred to by the author is a well-established principle of federalism called anti-commandeering.
Put simply, anti-commandeering prohibits the federal government from forcing states to participate in any federal program that does not concern “international and interstate matters.”
While this expression of federalism (“dual sovereignty,” as it was named by Justice Antonin Scalia) was first set forth in the case of New York v. United States (1992), most recently it was reaffirmed by the high court in the case of Mack and Printz v. United States (1997).
Former Arizona Sheriff Richard Mack was one of the named plaintiffs in the latter landmark case, and on the website of his organization, the Constitutional Sheriffs and Peace Officers Association, he recounts the basic facts of the case:
The Mack/Printz case was the case that set Sheriff Mack on a path of nationwide renown as he and Sheriff Printz sued the Clinton administration over unconstitutional gun control measures, were eventually joined by other sheriffs for a total of seven, went all the way to the Supreme Court and won.
There is much more “ammo” in this historic and liberty-saving Supreme Court ruling. We have been trying to get state and local officials from all over the country to read and study this most amazing ruling for almost two decades. Please get a copy of it today and pass it around to your legislators, county commissioners, city councils, state reps, even governors!
The Mack/Printz ruling makes it clear that the states do not have to accept orders from the feds!
Writing for the majority, Justice Antonin Scalia explained:
As Madison expressed it: “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39, at 245. [n.11]
This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”
When the federal government assumes powers not explicitly granted to it in the Constitution, it puts the states on the road toward obliteration and citizens on the road to enslavement.
Although it is encouraging to read about its growth in the pages of the mainstream press, the need for nullification to continue spreading is great. The government in Washington, D.C. is out of control and it is time for every citizen to demand that every state legislator perform his constitutionally imposed duty to protect the Constitution.
The best way to do this is to reverence our founding document by educating ourselves as to the legitimate relationship between the states and the feds and then insist that the limits on power established in the Constitution are respected and enforced.
NO, JAMES MADISON DID NOT REJECT NULLIFICATION
Mike Maharrey | tenthamendmentcenter.com
January 10, 2014
For some reason, some conservative commentators keep propagating the historical lie that James Madison “rejected nullification.” James Madison did no such thing.
Even while opposing a bastardized proposal for nullification created out of thin air in South Carolina, he still supported nullification as a “natural right.”
In Madison’s “notes on nullification” during the later days of his life, he explicity rejected a very specific doctrine of nullification proposed by South Carolina. But during the same time period, he refered to “nullification…as a natural right”
Madison’s arguments against this doctrine are hard to dispute. Here’s what he wrote:
This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties.
The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the states.
Madison is talking about a bastardized version of nullification which South Carolina’s advocates proposed.
South Carolina essentially asserted that once a single state nullified a federal act, it was annulled within that state and it could not be legally enforced there until three-quarters of the other states overruled the nullification.
Furthermore, South Carolina claimed that a state’s act of nullification was “presumed right and valid” until overturned.
In other words, a single state could effectively control the entire country.
An article published in the influential North American Review, published in January 1833, sums up the nullification doctrine advanced by South Carolina and vehemently opposed by Madison.
The controversy is, however, not about words, but things. The right which the Vice-President (Calhoun) disclaims under the name of abrogating, but claims for a State under that of nullifying an act of the General Government, is thus stated by himself in the letter alluded to above.
1. A State has a right, in her sovereign capacity in Convention, to declare an unconstitutional act of Congress to be null and void; and such declaration is obligatory on her citizens, and conclusive against the General Government; which would have no right to enforce its construction of its powers against that of the State.
2. Upon the exercise of this right by a State, it would be the duty of the General Government to abandon the power, at least as far as the nullifying State is concerned, and to apply to the States themselves, according to the form prescribed by the Constitution, to obtain it by a grant.
3. If the power thus applied for be granted, acquiescence then would he a duty on the part of the State; and in that event, the contest would terminate in converting a doubtful constructive power into one positively granted: but should it not be granted, no alternative would remain for the General Government but its permanent abandonment.
Such are the three leading points in the doctrine of nullification, as laid down by its principal champion.
Representatives of the Palmetto State forwarded this idea as a “constitutional” remedy. The South Carolina version of nullification held that a single state’s action legally bound the rest of the country and annulled – or made legally inoperative – the federal act within that state.
It’s important to understand that South Carolina was using, and Madison was addressing, a very precise, legal definition of nullification. The modern day nullification movement uses the term in a more practical, Jeffersonian, natural-right sense.
Madison was addressing the South Carolina doctrine that defined nullification in a legal sense – to annul the law – or render it legally invalid, like a veto.
Of course, we find no such mechanism in the Constitution, and Madison rightly argued this idea was absurd.
“But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.” [Emphasis added]
Quite simply, a single state can’t bind other political societies – neither the other states, nor the union of states created by the Constitution. A single state has no power to legally require federal agents to cease enforcement of federal acts. No mechanism exists for a single state to veto a federal act and force other states or the federal government to recognize that veto as “right and valid.” The Constitution does not establish any such process, as Madison asserted in the Notes.
This was the “nullification” Madison was addressing in his Notes – a process dreamed up by Calhoun and South Carolina statesmen – and readers must keep that context in mind.
Modern nullification opponents fail to do so. They ignore what Madison was clearly addressing by taking quotes from Notes and using them to attack Jeffersonian nullification, the foundation of the modern nullification movement.
Even while arguing against South Carolina nullification, Madison continued to affirm Jeffersonian nullification in his Notes.
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constitutionally resist a law of the Union while remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionally annul the law everywhere.” [Emphasis added]
Madison again states his opposition to the specific “doctrine of South Carolina,” the bastardized version of nullification created by Calhoun. He also emphatically asserts that “all admit” nullification to be a “natural right” – a legitimate and valid option to stop the oppression of federal usurpation.
In other words, when the federal government unchains itself from its constitutional restraint, the people of the states have the right to defend themselves and stop it.
Yes. James Madison correctly rejected the South Carolina doctrine of nullification, which claimed the power to legally bind everyone to its own decision. At the same time, James Madison was quite clear that nullification is an undisputed natural right.
Those who claim Madison opposed nullification are either ignorant of this fact, or lying.
CORRECTING MARK LEVIN’S REPEATED MISREPRESENTATION OF JAMES MADISON
Written by Joe Wolverton, II, J.D. | The New American
Mark Levin (shown) is at it again. During an appearance on CSPAN’s Book TV program, the talk-show host went on a rhetorical rampage against those who prefer nullification over a constitutional convention as a tactic in the war against federal tyranny.
Given that Levin is little more than an entertainer who gets richer the more provocatively he behaves, it isn’t surprising that he would refer to the legitimate constitutional scholars who promote nullification (Thomas Woods, Kevin Gutzman, Walter Williams, Andrew Napolitano, among others) as “neo-confederates, fringe, idiotic, and crazy.”
Levin apparently believes that he can boost his credibility as a respectable constitutional authority by resorting to school-boy name-calling.
Although his interpretation (willful or ignorant) of a letter written by James Madison has now been exposed as incorrect, Levin continues perpetuating this fraudulent view of Madison’s opinion of state nullification of federal acts.
Levin’s comments demonstrate he knows little about the Constitution and less about context.
The con-con’s college of academics should know better, however. They should know that by removing a word from its original and intended context they put false words in an author’s mouth and commit fraud against those who are unfamiliar with the original source of the word or concept they claim to be quoting.
Take the word “killing,” for example. While I might write that “killing” is acceptable in one circumstance or another (self-defense and in war, for example), that does not mean that I support killing in every situation. Context is key.
With that in mind, it is disingenuous (at best) for self-promoting “constitutional scholars” and “historians” to claim that James Madison opposed nullification, period. That is a gross mischaracterization and one that needs to be once and for all corrected.
This article will restore necessary context to the word “nullification” as used by James Madison in an 1834 letter called “Notes on Nullification.”
First, we have to put Madison’s role in the formulation of the concept of nullification into some context of its own.
As indispensable as he was to the development of our Constitution, James Madison is not the father of nullification. The idea that a smaller division (a state, a county, a city, etc.) is justified — even obliged — in refusing to obey unlawful edicts of the larger society (the federal government, in the case of the United States) was not original to Madison, Jefferson, or any of America’s Founding Fathers. The doctrine we call nullification was known for generations before the Kentucky and Virginia Resolutions were written.
Our Founders drew wisdom and inspiration from a variety of sources, including a group of continental natural law theorists, one of whom was Samuel Pufendorf of Germany (read of the importance of Pufendorf to the Founders here).
In his book The Whole Duty of Man, According to the Law of Nature, written in 1673, Pufendorf explained that for a law “to exert its force,” that is to say, for it to be legitimate, first, the law must be “plainly and openly made.” Can we say that about ObamaCare, the NDAA, the scores of executive orders infringing on the right to keep and bear arms? Absolutely not.
Second, Pufendorf writes that a law may be enforceable only if the subject of the proposed law “belongs to that office” of the lawmaker and it contains “nothing derogatory to the sovereign.”
In the United States, the Constitution is the sovereign law of the land. If, then, any act of Congress (the constitutional lawmakers) exceeds the power given to that body, then the states (Pufendorf uses the term “country or city”) may exercise their natural right to refuse to “pay obedience” to those acts.
Madison makes references to this “right” in his “Notes on Nullification,” the document so often quoted by those who argue that the author of the Virginia Resolution walked back from his support for state nullification of unconstitutional acts of the federal government.
In his “Notes,” Madison attempts to describe “the essential distinction between a constitutional right and the natural and universal right of resisting intolerable oppression.”
The “constitutional right” he speaks of is that being asserted by South Carolina. This is the critically important context mentioned above. In its effort to resist what it deemed federal overreach, the legislature of South Carolina was in fact overreaching itself.
As Mike Maherry of the Tenth Amendment Center explains, “South Carolina essentially asserted that once a single state nullified a federal act, it was annulled within that state and it could not be legally enforced there until three-quarters of the other states overruled the nullification. Furthermore, South Carolina claimed that a state’s act of nullification was ‘presumed right and valid’ until overturned. In other words, a single state could effectively control the entire country.”
That’s not the sort of nullification that Madison described as a “duty” of states, one necessary for “arresting the progress of evil.”
In the “Notes,” Madison writes:
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
Modern advocates of nullification understand, as did James Madison, that the legislative will of one state is not binding on the others. In fact, a state bill voiding a federal act has no effect on the federal government, either. That is to say, even though a state legislature deems a federal act unconstitutional, that doesn’t make it so, at least anywhere other than in the nullifying state itself.
As constitutionalists, supporters of contemporary efforts to nullify unconstitutional acts of the federal government also demand that the letter of that document be followed precisely. Therefore, it is important to point out that the Constitution does not permit the government of a single state to render a federal act void on its face or to make it so that the rest of the states must bow to the will of the would-be nullifying state and be forced to refuse to enforce the mandates of the federal act.
This is the application of “nullification” that Madison rightly found constitutionally indefensible.
However, Madison consistently defended the type of state nullification that is “the natural right, which all admit to be a remedy against insupportable oppression.” It would be difficult to argue that James Madison would not consider ObamaCare, for example, to qualify as an “insupportable oppression” worthy of resistance.
Given the letters behind the names of so many of the so-called conservative scholars denouncing nullification and rejecting it as an effective defense against the federal assault on the Constitution, it seems unlikely that they do not understand this nuance of nullification.
Thankfully, there is a growing number of state and local lawmakers who do understand it and are working within the constitutionally sound sphere of nullification to strike back at the federal usurpation.
As greater numbers of legislators, governors, and citizens learn of the immense power of nullification, they will more readily and fearlessly work to reverse the trend of constant federal overreach by insisting that the states resume their role as what Madison called the “sure guardians of the people’s liberty.”
An added benefit of nullification is that its persistent practice builds trust between the elected and the electorate by encouraging the recognition of reliable patterns of interaction between state and local authorities and the federal government. By consistently demanding that Washington confine itself to its small, well-defined zone of influence, everyone — citizen, state lawmaker, president, and congressman — knows where he stands and can act knowing they enjoy the good will of those whom they serve.
Over time, even occasional deviations from the constitutional straight and narrow would evoke instant reprisals from the states and the people, savvy to the restrictions on the federal government’s authority as imposed by the enumeration of powers in the Constitution.
In fact, if states corrected every federal misstep — purposeful or accidental — then federal legislators might eventually be disabused of their shared delusion that their counterparts on the state level are dumb and docile pack animals that can be easily burdened and herded into the corrals of despotism.
Finally, of all the legal, constitutional, and moral reasons to support nullification, there is one that sits at the pinnacle of them all.
Nullification, as described by Madison in the Virginia Resolution, is a nearly fail-safe and foolproof protection of popular sovereignty and limited government.
Mark Levin and the rest of the con-con collaborators might not understand this, but thousands of constitutionalists across the country do, and they are nullifying unconstitutional acts of the federal government in a way in which James Madison would undoubtedly approve. Without exposing the delicate gears of the Constitution to the monkey wrench of an Article V constitutional convention.
The Liberty Amendments: Restoring the American Republic by Mark R. Levin
IN THE LIBERTY AMENDMENTS, MARK LEVIN TURNS TO THE FOUNDING FATHERS AND THE CONSTITUTION ITSELF FOR GUIDANCE IN RESTORING THE AMERICAN REPUBLIC.
For a century, the Statists have steadfastly constructed a federal Leviathan, distorting and evading our constitutional system in pursuit of an all-powerful, ubiquitous central government. The result is an ongoing and growing assault on individual liberty, state sovereignty, and the social compact. Levin argues that if we cherish our American heritage, it is time to embrace a constitutional revival.
The delegates to the 1787 Constitutional Convention in Philadelphia and the delegates to each state’s ratification convention foresaw a time when—despite their best efforts to forestall it—the Federal government might breach the Constitution’s limits and begin oppressing the people. Agencies such as the IRS and EPA and programs such as Obamacare demonstrate that the Framers’ fear was prescient. Therefore, the Framers provided two methods for amending the Constitution. The second was intended for our current circumstances—empowering the states to bypass Congress and call a convention for the purpose of amending the Constitution. Levin argues that we, the people, can avoid a perilous outcome by seeking recourse, using the method called for in the Constitution itself.
The Framers adopted ten constitutional amendments, called the Bill of Rights, that would preserve individual rights and state authority. Levin lays forth eleven specific prescriptions for restoring our founding principles, ones that are consistent with the Framers’ design. His proposals—such as term limits for members of Congress and Supreme Court justices and limits on federal taxing and spending—are pure common sense, ideas shared by many. They draw on the wisdom of the Founding Fathers—including James Madison, Benjamin Franklin, Thomas Jefferson, and numerous lesser-known but crucially important men—in their content and in the method for applying them to the current state of the nation.
Now is the time for the American people to take the first step toward reclaiming what belongs to them. The task is daunting, but it is imperative if we are to be truly free.
THE NULLIFICATION ALTERNATIVE
Written by Joe Wolverton, II, J.D. | The New American
The right of states to nullify unconstitutional federal laws was until recently almost unknown to today’s generation of Americans. But that has been changing in recent years, as growing numbers become aware that under the 10th Amendment of the U.S. Constitution states retain the power to stop federal unconstitutional encroachments — from ObamaCare to gun control — at the state border.
Much of the awareness has been created through liberty-minded alternative media and organizations. But more and more the nullification issue is being reported by the mainstream media — and sometimes favorably.
On December 27 the Washington Times published in its “Communities” section an important opinion piece by Michael Lotfi that makes the case for using nullification to fight back against federal usurpations. But the author, who is the Tennessee associate director of the Tenth Amendment Center, does much more than that in his article. He also refutes the proposal “for an Article V constitutional convention of the states as salvation.” That proposal is now being promoted by celebrity “conservative” Mark Levin,
Lotfi begins his article by acknowledging Levin’s influence in conservative politics:
Mark Levin has one of the top-rated syndicated talk radio shows in the country. No one can deny that the lawyer and New York Times bestselling author commands major clout in conservative politics.
However, should this clout serve as a warrant for millions of Americans to blindly follow him?
Indeed, it should not. Levin, after all, is notorious among many segments of the conservative spectrum for his assertion that the president of the United States has power to “make war.” If he is wrong regarding the power to declare war — which under the U.S. Constitution is a congressional power — could he also be wrong regarding his trumpeting of a constitutional convention? Lotfi does not make this particular point in his article, but he does make very clear that Levin is wrong regarding the con-con issue. “Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution,” Lotfi writes.
Of course, Levin is not the only celebrity “conservative” leading the con-con charge. Others include Sean Hannity, Rush Limbaugh, and most recently, Glenn Beck.
For his part, Beck is a recent convert to the claque of “conservatives” clamoring for a con-con. He seems to be a true believer, though, going so far as to “bury the hatchet” with Levin and make a joint video praising the Compact for America (CFA) and other pro-Article V efforts.
On his website, Beck offers his fans “some additional reading materials so [they] can learn more about” the Article V movement. One of documents provided by Beck is by Indiana State Senator David Long.
This writer faced Senator Long during testimony I gave before the Indiana State Senate committee he chairs. Sadly for citizens of the Hoosier State and for his new promoter, Glenn Beck, Long doesn’t understand nullification, and he works consistently to keep his state from exercising its constitutional and moral obligation to hold as null, void, and of no legal effect any unconstitutional act of the federal government.
The particular provision of the Constitution relied on by the con-con proponents is Article V. In relevant part, Article V states:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.
One of the “evils” Levin and his cohorts claim would be eliminated by an Article V con-con is the runaway federal spending spree. In fact, Nick Dranias (one of the heads of the CFA) and others have pushed for a con-con that would be empowered specifically and exclusively to consider a Balanced Budget Amendment (BBA).
Before state legislatures vote for an Article V con-con proposal that could cause real and radical damage to our Constitution, they should first consider whether a balanced budget amendment is necessary and whether it would actually steer our Republic away from the fiscal problems we are facing.
The fact is that determined citizens and state legislators could rescue the United States from its financial peril without resorting to opening up the Constitution to tinkering by state-appointed delegates, many of whom would likely be bought and paid for by powerful lobbyists and special interest groups.
Furthermore, there is no historical proof that a balanced budget amendment would drive Congress back to within its constitutional corral. Even the most conservative estimates indicate that about 80 percent of expenditures approved by Congress violate the U.S. Constitution. That fact wouldn’t change by adding an amendment to the Constitution.
Whether these bills spend our national treasure on unconstitutional and undeclared foreign wars, billions sent overseas in the form of foreign aid, expanding the so-called entitlement programs, or redistributing wealth via corporate and individual welfare schemes, none of these outlays is authorized by the Constitution.
Perhaps the most critical consideration that must be made by well-intentioned Americans anxious to do something to change the current course and to restore this country to its constitutional foundations is the indisputable threat to liberty posed by an Article V con-con as proposed by Mark Levin in his new book.
Remember, regardless of any state or congressional legislation requiring them to consider only a balanced budget amendment, the assembled delegates to a new constitutional convention would possess unlimited, though not unprecedented, power to propose revisions to the existing Constitution, based on the inherent right of the People in convention to alter or revise their government.
The prospect of a convention endowed with power of this magnitude, populated by politicians determined to tinker with the precision gears that give movement to works of our mighty Republic, is frightening and should give pause to everyone considering enlisting in the forces fighting for a con-con.
Lotfi’s Washington Times piece makes a similar warning:
Congress is now controlled almost exclusively by lobbyists. States essentially lost all control over the federal government with the implementation of the Seventeenth Amendment. Hardly a federal delegate in Congress feels the need to report to their respective state legislators. The risk for a runaway convention, by which our current Constitution could be completely shredded, is of paramount concern.
Rather than expose the Constitution to the whims of special interest groups, political action committees, corporations, and the politicians they pay for, why not enforce the Constitution as written?
Wouldn’t the country’s economic outlook be improved by forcing our federal representatives to obey the limits on their power as provided by the Constitution, rather than allowing the delegates to a new constitutional convention (and the powerful interests many of them would be financially beholden to) to produce some document that not only would do nothing to restrain the federal government, but could potentially rewrite our Constitution?
Fortunately, there is another way for states to exercise their collective authority on the federal government without resorting to a constitutional convention. It is the concept described by Thomas Jefferson as the “rightful remedy” for any and all unconstitutional acts of the federal government: nullification.
Simply stated, nullification is a concept of legal statutory construction that recognizes each state’s right to nullify, or invalidate, any federal measure that a state deems unconstitutional.
Nullification is founded on the assertion that the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof.
As for the position taken by con-con proponents that James Madison later rejected nullification as a remedy for federal overreach, please see this reporter’s article published recently by The New American).
With these facts in mind, it would seem that our nation’s fiscal and political well-being is better served by governors jealous of their states’ sovereignty and their rightful role as “shelters against the abuse of power,” signing into law state bills nullifying unconstitutional federal measures (including those that have propelled our national indebtedness into the stratosphere) than by a constitutional convention with unchecked power to amend our Constitution out of existence in the name of balancing the budget.
Finally, in a “Stop the Con Con” video featuring its CEO Arthur R. Thompson, The John Birch Society makes a critical point — one always avoided by the Article V advocates:
Many view a con-con as a quick way to pass amendments they think will stop the big-government juggernaut. Why would politicians suddenly start following an amended Constitution after ignoring and violating the Constitution for so long? The remedy so desperately needed to return our country to good government is to enforce the Constitution, not amend it.
In other words: Follow it, don’t fix it!