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home : opinions : op ed columnist December 4, 2016

5/14/2012 5:16:00 PM
Thomas Jefferson and nullification

Charles Boyd


Under the evil tyranny of the Obama (soon-to-be) dictatorship, we are being deluged with a never ending series of laws and regulations with significant questions regarding their constitutionality:

• ObamaCare;

• Dodd-Frank Wall Street Reform and Consumer Protection Act;

• EPA "Clean Air Act" regulations; and

• NDAA - National Defense Authorization Act.

Today most Democrats (liberals) are in dire need of remedial education in American history which would introduce them to an obscure little document "The U.S. Declaration of Independence" published in July 1776 and its primary author Thomas Jefferson.

During the ensuing decade the definition and structure of the United States government were embodied in the Constitution of the United States. Conservatives continue their reverence for the Constitution as the definitively established "Law of the Land" whereas Democrats agree with Alexander Hamilton's view that it is a "frail and worthless fabric" which badly needs reinterpretation by clever lawyers to make it an instrument that would establish the legitimacy of any act of the federal government under the false umbrella of "public good."

Thomas Jefferson fully realized that the Constitution was a magnificent initial step, but the concept of a "three-way" check-and-balance form of government still retained a critical flaw relative to perpetuating freedom from tyranny.

The executive, legislative, and judicial branches are still combined in that all powerful federal government which fundamentally has no constraints on laws and regulations which it can foist on the citizens of the states. The executive and legislative branches do have to survive the "minor inconvenience" of elections, but nothing constrains the actions of the U.S. Supreme Court.

Certainly a modicum of common sense would suggest that it would have been the ultimate absurdity for the Founding Fathers to fight a revolution in the name of liberty and then turn around and write a Constitution that allows five appointed government lawyers to destroy those liberties so heroically acquired.

And now in 2012 we find that "ultimate absurdity" elevated to the level of pure insanity with the court split between two opposing ideologies and one (and only one) appointed judge to decide on the liberties of 300-plus million people.

Thomas Jefferson said:

"To consider the judges of the Superior Court as the ultimate Arbiters of Constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps - and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society but the people themselves."

After over two centuries of assuming that the electoral process would provide a remedy against an overreaching federal government, we find the nation in an essentially hopeless situation in the 21st century. The Constitution as ratified by the individual states gave assurances that the established federal government would have limited powers (primarily associated with foreign policy, defense, and interstate commerce), and the states retained all specific powers not delegated to the newly established government.

Beginning in 1798 with President John Adam's signing of the infamous "Alien and Sedition Acts" the conceptual framework of the Constitution has been destroyed through politician's unending exploitation and reinterpretation of the three constitutional clauses, "general welfare," "commerce," and "necessary and proper."

In response to these unconstitutional acts, Jefferson helped author the Kentucky Resolutions of 1798 and 1799 which were approved by the Kentucky House and Senate in 1798-99 and stated that unconstitutional laws are void: Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government ... they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; ... that this government ... 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 ...

Jefferson's "Rightful Remedy" was added in 1799: Resolved, That this commonwealth considers the federal Union ... conducive to the liberty and happiness of the several states: ... if those who administer the general government be permitted to transgress the limits fixed by that compact ... an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence ... That the several states ... being sovereign and independent, have the unquestionable right to judge ... and That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy ...

Thomas E. Woods, Jr. has written an excellent new book entitled "Nullification, How to Resist Federal Tyranny in the 21st Century."

Woods shows:

• How the states were meant to be checks against federal tyranny - and how a growing roster of governors and state attorneys general are recognizing they need to become that again;

• Why the Tenth Amendment to the Constitution reinforces the rights of states to nullify unconstitutional laws;

• Why it was left to the states to uphold the simple principle that an unconstitutional law is no law at all;

• Why, without nullification, ordinary Americans will continue to suffer the oppression of unjust, unconstitutional laws; and

• Thorough documentation of how the Founding Fathers believed nullification could be applied

An early example of nullification occurred in the Ohio vs. Bank of the U.S. battle in 1824.

President George Washington was cajoled by Alexander Hamilton into signing the Bank of the United States, (BUS) into law in 1791 with a renewable 20-year charter. Hamilton patterned BUS after the Bank of England which was established in 1694 and resulted in a century of financial disasters in Great Britain. The immediate accomplishment of BUS was to cause a destructive level of 72 percent inflation over the years, 1791-96. The BUS charter was allowed to expire in 1811, but the War of 1812 intervened causing a huge increase in the national debt which naturally brought back the chartering of the second BUS in 1817. Many state governments considered BUS to be unconstitutional. To harass the BUS branches in Ohio a heavy state tax was levied on them and in one case the state forcibly collected the tax. Subsequent to a suit by BUS against the state of Ohio, the state Legislature rebuffed the federal government by quoting the 1798-99 Kentucky resolutions; that it is the people of the states who are sovereign in spite of deliberations by government lawyers with lifetime tenure.

Wisconsin provided another application of nullification in 1852.

States' rights (Tenth Amendment) had been the basis of the Wisconsin Supreme Court's decision to nullify the 1850 Fugitive Slave Act after the controversy surrounding the fugitive slave Joshua Glover. With the help of concerned citizens of Wisconsin, Glover made it to freedom in Canada, but the U.S. Supreme Court then concentrated severe legal attacks on those individuals who aided in his escape. The Wisconsin Legislature passed a series of resolutions denouncing the actions of the U.S. Supreme Court as an arbitrary act of power without authority, void and of no force, and urging positive defiance by the states as the rightful remedy. The chief justice of the U.S. Supreme Court was stunned by these defiant resolutions, but Wisconsin's stand against the Fugitive Slave Act survived between 1842-61 more than 100 slaves appear to have been helped to escape to Canada by Wisconsin citizens).

Read the story of Joshua Glover here: http://tenthamendmentcenter.com/2011/03/13/meet-joshua-glover-and-our-history/.

California has been practicing nullification for quite some time on matters such as illegal immigration, sanctuary cities, and drug legalization.

The battle over the legality of medical use of marijuana continues to this date and de facto nullification is in effect.

All or parts of ObamaCare may need to be nullified.

The passage of that atrocious ObamaCare bill has greatly intensified popular interest in the possibility of nullification. Health care nullification has already been enacted into law in three states and is pending in another 23 states. This is in addition to the multiple state suits of opposition to various parts of the law presently awaiting a final U.S. Supreme Court decision.

The successful and proper use of Jefferson's nullification faces an extremely tough uphill battle after over two centuries of improper interpretation of the Constitution leading to a near total subjugation of the states to overreaching federal authority.

Thomas Woods Jr. poses the question: "Can the moribund tradition of state resistance to unconstitutional federal power be resuscitated, or are Americans too deeply in thrall to the myth that unlimited submission to federal authority is the only course available to them, and is what makes them good and loyal Americans?"

Unfortunately, the absolute power of the federal government is vastly increased through its built-in trump card, the ability to blackmail the states by withholding the federal tax dollars to which they are beholding and addicted.

Thomas Woods Jr. concludes as follows: "The regime in Washington has grown so destructive and parasitic, its activities so inimical to the welfare, liberties, and prosperity of the people and so remote from any conception of constitutionally limited government, that supporters of nullification need not apologize for disrupting its plans. That, in fact, is the point. They should be congratulated for doing what they can to slow it down. Again, nothing else has worked.

"Nullification is about learning to exercise our rights, whether courts or the politicians want us to or not. Instead of waiting for our liberties to be handed back to us, we in our states can follow Jefferson's noble example and take the lead in saying no to the ambitions of a government that would have horrified the founding generation."

Thomas Woods Jr. discusses the concept of nullification in this video:

http://www.youtube.com/watch?v=hxxJYbZktyQ.

Charles A. Boyd, is a retired physicist and mathematician from Manitowish Waters. He spent 35 years designing and managing complex electronic systems; he is now in his fourth year of full-time independent studies in history, economics, and politics.





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