I confess, I’m not really a “Tenth Amendment” guy. Not that I don’t recognize its importance in our founding and our ongoing freedoms. I definitely do. It’s just that First (and sometimes Second) Amendment rights are usually those that catch my attention. But, with the recent, national attention to certain issues — e.g., gun control vs rights, Obamacare, abortion rulings, same-sex marriage laws, etc. –, it is becoming more obvious just how crucial is our understanding of State sovereignty vs. Federal supremacy. The key term & concept here is “nullification”. This is one of those BIG topics that I know I need to get up-to-speed on but don’t relish doing the research.
Then, I remembered the Tenth Amendment Center. I started paging through their web site and found some great info. In particular, I found the article that follows by Michael Maharrey. It is very informative on the topic in general but has a particular emphasis on current gun laws. Before I finished it, I knew I wanted to share it with my readers, so I contacted Mike, and he graciously agreed to let me reproduce the entire article as a “guest post”. Cool!
Note: He has a similar writing style to mine, so, while you might be inclined to forget and think that I’m writing it, don’t. It’s all Mike.
A Basic Civics Lesson for Pseudo-Historians
I need a civics lesson.
This according to the keepers of acceptable opinion at two divergent publications.
Both The Economist and the Montgomery Advertiser recently ran opinion pieces skewering nullification, specifically state efforts to block unconstitutional federal gun laws in Kansas and Alabama. Interestingly, both the author of The Economist piece and the editorial board over at the Alabama newspaper used the same strategy. They both try to make their readers believe anybody who actually views nullification as legitimate must not be too bright. Their implication? “The federal government enjoys absolute supremacy and a bunch of dumb racist, rednecks who don’t know anything about the U.S. government want states to ignore laws they don’t happen to like.”
From The Economist: “It is remarkable that a civics lesson like this is necessary.”
The Montgomery Advertiser editorial board gets even snarkier.
“That body (the Alabama Senate) has taken a plunge into the past by revisiting and embracing the long-discredited practice of nullification, the notion — abandoned decades ago by most people who passed sixth-grade civics.”
Talk about groupthink. Federal supremacists apparently find the whole “civics lesson” theme clever. I have to admit -– it does effectively create the impression that nullification supporters wander around in ignorance among the illiterate and uneducated. But the mockery would prove even more effective if the writers actually knew what in the hell they were writing about.
Here’s the problem: these amateur historians actually think the three things they leaned in their government school sixth-grade civics class make them some kind of experts. They might want to move on from pre-civics to basic civics before they try demeaning those of us who actually know the historical and the philosophical basis for nullification.
Let’s touch on a few basics, shall we?
1. Federal Supremacy – These wanna-be historians actually think the federal government stands absolutely supreme all the time, no matter what. They apparently never bothered to put down the sixth-grade textbook and read the actual supremacy clause in the Constitution. If they did, they would find that only acts “in pursuance of” the Constitution stand supreme. Yes Virginia, federal supremacy actually has limits! Alexander Hamilton made this clear in Federalist 33.
“If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”
2. The extent of federal power – While we’re on the subject of limits, our civics professors apparently need a reminder. The federal government can’t just do whatever it wants. It operates under strict limits. The feds can only exercise powers delegated to it in the Constitution. James Madison described the extent of federal power in Federalist 45. He insisted that the powers delegated to the general government were “few and defined,” and those left to the states and people were “numerous and indefinite.” The ratifiers even insisted on a Bill of Rights “in order to prevent misconstruction or abuse of its powers.”
3. Who decides constitutionality? - Federal supremacists sell you a load of crap. They want you to believe the people of the states created a federal government with limited, enumerated powers, insisted on further “declaratory and restrictive clauses” -– the Bill of Rights — and then left it to that government to decide the extent of its own power. This idea not only earns them an F on their civics test, they also fail their logic test. Basically, these geniuses want the Dallas Cowboy player to referee the Dallas – New York Giants football game. How do you think that would turn out for the Giants?
Fact: the people of the states created the federal government in the first place. Therefore, the people of the states retain the right, in the last resort, to determine the extent of the powers they gave to the government they created. So yes, Kansas can determine what limits the Second Amendment places on federal regulation of firearms. Granted, this idea may fall into the realm of advanced civics, so maybe we should let a real expert explain it. How about we call on Madison, the “Father of the Constitution?”
“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Extra reading HERE.
4. Separation of powers - Even our journalists with their sixth-grade civics background probably remember separation of powers. If you ask them, they will tell you about the three separate branches – executive, judicial and legislative – and how they serve as a check on each other. What seems to escape our intellectual elite is the fact that these three branches all belong to a single entity -– the federal government. That raises an interesting question that Madison asked some 200 years ago. What happens in “those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.” In other words, what happens when all three branches conspire to exercise undelegated powers?
In sixth-grade civics world, apparently nothing.
Again, these federal supremacists sell a crock of smelly stuff. They want you to believe that a government can exist as a self-limiting institution. That being the case, why did the founders go to all the trouble to create checks an balances WITHIN the federal government? Doesn’t it logically follow that some check on federal power in general must exist?
Uh, yeah. The branches of government serve as horizontal checks on power and the states serve as vertical checks on federal power. During the ratification debates, anti-federalists insisted the federal government would not remain constrained to limited, enumerated powers as supporters of the Constitution promised. Madison argued that the states would serve as the check.
“Should an unwarrantable measure of the federal government be unpopular in particular State…the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Madison’s blueprint sounds an awful lot like nullification, doesn’t it? Kansas says it refuses to cooperate with acts violating the Second Amendment. Alabama say it refuses to cooperate with federal acts violating the Second Amendment. Maybe Madison needs to take that sixth-grade civics class these guys talk about.
5. The Second Amendment – Even without the Second Amendment, the federal government still would not have the authority to regulate gun ownership within the borders of a state. The Constitution does not delegate that power to the federal government; therefore it remains with the states and the people. Secondly, the language of the amendment itself defines much greater restriction on federal power. “The right of the people to keep and bear Arms, shall not be infringed.” (Infringe – v: Act so as to limit or undermine something; encroach on, block.) The federal government may not constitutionally act in a way that limits the right to keep and bear arms -– period -– even when exercising a valid constitutional power. So even though the federal government has the authority to regulate interstate commerce, it does NOT have the authority to infringe on the right to keep and bear arms in the process.
6. Extra Credit - John Calhoun didn’t come up with nullification prior to the Civil War to support slavery, or even to oppose a tariff. He didn’t come up with it at all. James Madison and Thomas Jefferson get the credit for formalizing the principles of nullification in 1798, in response to the Alien and Sedition Acts.
Nullification wasn’t used in defense of slavery. Not ever. In fact, northern states appealed to the principles when blocking the Fugitive Slave Act of 1850. It was so effective, South Carolina listed “nullification” of the Fugitive Slave Act in its Declaration of Causes for Secession. (Which kind of punches a big huge hole in the “nullification has never worked” talking point parroted by federal supremacists.)
Yes, Andrew Jackson opposed nullification. So what? He uses the same lame arguments federal supremacists today use. They were just as lame in the 1820s and 1830s.
Sadly, tomorrow I will run across some other pseudo-historian repeating the same false “facts” about nullification, acting all intellectually superior. These people continue to run around and act like counter arguments to their tripe don’t exist. But they clearly do. These folks just need to start reading outside of that sixth-grade civics book.
* Michael Maharrey is the national communications director for the Tenth Amendment Center and the author of Our Last Hope – Rediscovering the Lost Path to Liberty, the philosophical, moral and historical case for nullification.
Great stuff, eh?!