Thursday, January 27, 2011

Null and Void

Associated Press reported yesterday that several state legislatures are working on bills to nullify Obamacare.

“GOP lawmakers introduced such a measure Wednesday in the Idaho
House, and Alabama, Kansas, Maine, Montana, Oregon, Nebraska, 

Texas and Wyoming are also talking about the idea.”

At least one of those measures would call for the prosecution of anyone - including state officials - who refused to enforce the bill’s provisions. So, they’re serious.

But, according to the AP, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’”

But one constitutional scholar disagrees. His name is Thomas Jefferson, he was intimately familiar with the Constitution and served as the third president of the United States. Though some today might regard the opinion of the Associated Press as more credible, in 1799, Jefferson wrote that "nullification ... is the rightful remedy" whenever the Federal government commits an act so egregious that the states cannot allow themselves to be compelled to submit. Jefferson created the doctrine to express his disgust with the Alien and Sedition Acts that were enacted by then-President John Adams during the war with France.

Certainly there is case law that clearly demonstrates the Supreme Court’s opinion that Federal Law supercedes state law. The Supreme Court may or may not one day turn a different direction. But in this case, we’re not looking at a clash between two contradictory laws. Nullification is a rejection of an act by the Federal government. In our opinion, the Constitution. It is, in effect, a means of suing the Federal Government outside of court by expressing simultaneously the state’s and the people’s sovereignty. Both of which, by the way, are guaranteed in the 10th Amendment of the Bill of Rights.

There are already law suits between states and the federal government where the states are suing the Federal government for injurious legislation. Obamacare has recently been the subject of such suits filed by about half the Union. But, is that the only way to stop an out-of-control Federal government?

No. The ratification process enshrined within the Constitution shows that the Framers recognized the power and authority, post confederation, of state sovereignty. They allowed for any part of the Constitution itself to be altered if simply enough state legislatures so desired. That Constitutional authority does not suggest that the Federal Government, its Congress or its Supreme Court is the superior governing body. It suggests the opposite.

This is a very important argument to those of us who see the strength of this nation, believe it or not, in its diversity - cemented by its great brotherhood - formed of a single idea. States that pass nullification laws are expressing their exquisite understanding of our freedom, and their willingness to participate in a Union of States, only as long as they are held sovereign. It is a midway point between oppression and secession.

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