Today the federal government is literally everywhere. It has its nose in everything, and it has been that way for a long, long time.

In the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that if the federal government were to have the exclusive right to judge the extent of its own powers, its power would continue to grow – regardless of elections, the separation of powers, and other much-touted limits on power.

The principle behind these resolutions, that the power of federal government must be checked by state governments, has gained resurgence in recent years, and is growing more every day.

Fourteen states are now defying federal laws on marijuana. Nearly two dozen states have rendered the Bush-era Real ID act null and void by passing laws or resolutions refusing to comply with it. Two states have already passed laws to effectively nullify some federal gun laws or regulations within their borders and more than two dozen others are considering similar legislation. More than a dozen states are considering legislation to nullify or effectively ban any future national health care plan in their state. Other states are considering legislation to refuse sending their national guard troops to wars deemed unconstitutional by state governors. And still others are looking at laws to resist cap and trade legislation.

The principle behind such legislation is nullification. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

MORE THAN WORDS

But to simply declare a law null and void is not enough. Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

In his famous speech during the war of 1812, Daniel Webster said:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”

Here Madison and Webster assert what is implied in nullification laws — that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state.

RESISTING FEDERAL INTRUSTION

The only way to restrain an out of control federal government is through the interposition of state authority to stand in defense of individual life and liberty. Those sound like nice words, but what does this mean precisely in application?

In order to restore usurped constitutional authority, a State must be prepared, at some point, to resist federal intrusion. In the American tradition, there is a long history of States doing just that. Georgia nullified the Supreme Court’s ruling in Chisholm vs. Georgia (1793); New England States nullified fugitive slave laws; and earlier New England townships nullified Jefferson’s embargo and the war of 1812 declared under Madison’s administration.

Jefferson said “he felt the foundations of the government shaken under my feet by the New England townships.” Wisconsin was nullifying what it declared to be usurpations by the Supreme Court into the 1850s. There was a time when the States kept the central government under control.

FOLLOW THE MONEY

When I talk to people about these principles – most agree, like Martin Luther King Jr. said in his famous “Letter from Birmingham jail,” that there is a moral responsibility to disobey unjust laws. But, they’ll often ask, even if states pass laws to nullify unjust and unconstitutional federal acts, the feds will still continue to tax us and punish our states financially for not complying – so what can we REALLY do?

One idea, which will take a great deal of courage on the part of the People and their state governments, is to establish what’s being called a “Federal Tax Escrow Account” or a “State Authority and Federal Tax Funds Act.”

Already introduced in Georgia (HB877), Oklahoma (HB2810), and Washington (HB2712), such laws would require that all federal taxes come first to the state’s Department of Revenue. A panel of legislators would assay the Constitutional appropriateness of the Federal Budget, and then forward to the federal government a percentage of the federal tax dollars that are delineated as legal and Constitutionally justified. The remainder of those dollars would be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people.

Will the federal government – and its courts – deem such laws constitutional? Unlikely, especially in light of the fact that as recently as 2005 the Supreme Court ruled that a person growing a plant on their own property, keeping it at home, and consuming it in their own home was somehow “interstate commerce.” Rulings such as these show that the courts have little, if any, respect for the rights of the people.

The Supreme Court, with only nine unelected judges, has become the most important policy making body in this country, and makes claim to be the final authority on interpreting the Constitution. Never in history have so many been ruled by so few.

The essential question, of course, will the people and their state governments have enough courage to push forward anyway? Only time will tell.

Click here for the Tenth Amendment Center’s legislative tracking page – for information on all current nullification efforts.

Click here for the Tenth Amendment Center’s Federal Tax Funds Act tracking page

Michael Boldin is the founder of the Tenth Amendment Center

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