We don’t need permission from the courts to exercise our rights. We need to learn how to exercise our rights whether the government or the courts want us to do so.
Thomas Jefferson had some advice for us. In 1798, in response to a Federal law criminalizing free speech, he wrote:
Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government… whensoever the general government assumes undelegated powers… nullification of the act is the rightful remedy…
With his advice, our message today to the Supreme Court is pretty straightforward: You may have your opinion, now come and enforce it!
What Do We Do About It?
Now that the black dresses have ruled against our Constitution again, what do we do about it?
Do we march on Washington, D.C., and demand that Federal politicians limit their own power?
Do we try to file another lawsuit in the hopes that Federal judges will limit Federal power?
Do we vote the bums out in the hopes that the new bums will say, “Oh, wow! Yeah. You can have all that power back!” For your information, that never happens.
Jefferson and James Madison both warned us that if the Federal government ever became the sole and exclusive arbiter of the extent of its own powers, that power would endlessly grow — regardless of elections, separation of powers, courts or other vaunted parts of our system.
They were right. For 100 years, we the people have been suing, marching, lobbying and voting the bums out. But year in and year out, government continues to grow and liberty continues to diminish. It doesn’t matter who is the President or what political party controls Congress; the growth of power in the Federal government never stops.
Again, the question remains: What do we do about it? Jefferson told us that “nullification of the act is the rightful remedy.”
Madison went a similar direction and said that the States “are in duty bound, to interpose, for arresting the progress of the evil…”
What does that mean?
Well, we’re not supposed to wait for the Federal government to correct itself. We’re not supposed to wait two or four or six years for some new bums to fix things for us. We’re not supposed to wait years for the politically connected lawyers on the Supreme Court to give us permission to be free. We’re supposed to exercise our rights whether the government wants us to our not.
So what is nullification?
Nullification begins with a decision made by you that a particular law is unConstitutional. Then, in most situations, your State Legislature would be pressured into resisting that particular law. This step usually involves a bill, which is passed by both State houses and is signed by your Governor. In some cases, it might be approved by the voters of your State directly, in a referendum. It may change your State’s statutory law or it might even amend your State Constitution. It is a refusal on the part of your State government to cooperate with, or enforce any Federal law it deems to be unConstitutional.
At its very core, nullification is any action or set of actions which results in a Federal law being rendered null and void or just plain unenforceable.
Some Important History
In 1850, when President Millard Fillmore signed the second Fugitive Slave Act, due process was under serious attack by the Federal government.
The law compelled people of all States to “assist” Federal marshals and their deputies with the apprehension of suspected runaway slaves. It brought all trials involving alleged fugitive slaves under Federal jurisdiction. It included large fines for anyone who aided a slave in his escape, even by simply giving him food or shelter.
The act also suspended habeas corpus and the right to a trial by jury for alleged “slaves” and made their testimony inadmissible in court. The written testimony of the supposed slave master, which could be presented to the court by slave hunters, was given preferential treatment.
In response, Northern States intensified efforts to pass what were known as “personal liberty laws.”
In Pennsylvania and Rhode Island, State officials were forbidden from assisting the Feds in enforcing the law and refused the use of State jails for fugitive slaves.
Vermont passed a “Habeas Corpus Law,” requiring State judicial and law enforcement officials to actually help captured fugitive slaves there.
Massachusetts took a really strong stand and actually passed a law that gave kidnapping charges to anyone trying to use these “indefinite detention” provisions of the Fugitive Slave Act.
In that State, though, not a single Federal agent was ever charged with kidnapping.
Was this because the law was passed by a bunch of politicians grandstanding? Did they have no intention of backing up their words with actions?
No. Not a single Federal agent was arrested because, after the law passed, not a single person was kidnapped in Massachusetts and sent to slavery in the South.
Maybe the Feds were scared; maybe they weren’t. Either way, the law was extremely effective.
In fact, Northern States were so successful overall that, when South Carolina seceded 10 years later, the people there named the Northern resistance to the Fugitive Slave Act as one of their primary reasons for leaving the Union. From the publicly released “Declaration of Causes” was this:
The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them.
What’s the bottom line? State and local non-compliance and resistance to unjust laws is not just a good idea. It works.
A little over a week ago, Governor John Lynch of New Hampshire signed a bill making law there that the State will refuse to participate in setting of health exchanges.
Governor Scott Walker in Wisconsin recently announced that his State would do the same. And other Governors are following their lead.
In November, Ohio passed Issue 3, which states: “No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.”
Ohio is the 10th State to do this.
In Arizona and other States the past two years, bills have been considered to fully nullify the Affordable Care Act.
Two Paths Ahead
We have two broad paths. We can do what we’ve been doing: voting bums out, hoping for repeal, filing another lawsuit or trying to get the entire country to agree on an amendment. Or we can take Jefferson’s and Madison’s approach and nullify.
So how does this play out?
That brings me to the story of Roscoe Filburn.
The Agricultural Adjustment Act of 1938 required American farmers to restrict production of wheat in order to raise prices.
As a farmer, Filburn was permitted to plant 11.1 acres of wheat, yielding 20.1 bushels per acre. He decided that it was in his best interest — possibly because he had less revenue due to the production limitations — to plant another 10 or so acres. But the excess wheat grown was used at home to feed his livestock, among other things. He never sold it, so he saw this as being outside the scope of Congressional power to regulate interstate commerce.
What did the Federal government do? It levied a fine against Filburn.
Filburn sued, and the case went all the way to the Supreme Court. In Wickard v. Filburn, the Court ruled against him, saying the government could regulate as “interstate commerce” a plant grown in one’s backyard and consumed in one’s own home.
In response, people talked about voting the bums out, changing the makeup of the Court, repealing the law, etc. But none of that worked, because the principle still remained that growing food in your backyard and consuming it in your home was “interstate commerce.”
If we fast-forward to present times, we can see a similar situation.
In the 1990s, the people of California voted to legalize consumption of marijuana for medicinal purposes. Angel Raich — who had a huge, cancerous tumor in her brain — was told by her doctor that using marijuana to relieve some of the pain was acceptable.
Marijuana, though, is illegal on a Federal level in all circumstances, so the Feds decided to make an example. Federal agents destroyed Raich’s homegrown marijuana plants without much resistance.
Like Filburn before her, Raich sued. Gonzales v. Raich went all the way to the Supreme Court; Raich lost. The 2005 ruling made clear that the Federal government did not recognize State laws authorizing the use of marijuana in any situation.
In his dissent, Justice Clarence Thomas gave a stark warning:
If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers–as expanded by the Necessary and Proper Clause–have no meaningful limits.
So what happened? Did the weed activists take the same route as those who supported Filburn decades earlier? No. They basically said, “Thanks for your opinion, now come and try to enforce it!”
At the time the Raich ruling came down, 10 States had marijuana laws. How many repealed after that decision? Zero. Today, another seven are on board, defying the Federal government and increasingly getting away with it.
What’s the lesson here?
When enough people say “no” to the Federal government, including the Supreme Court, and enough States pass laws backing them up, it becomes nearly impossible for them to force their unConstitutional laws, regulations and mandates down our throats.