By Alan Caruba
The great issue of our times is the same great issue of the 1830s. The question is whether Congress can pass legislation or the President issue executive orders that are not authorized by or consistent with the Constitution?
The federal government is a republic composed of separate and sovereign republics.
What recourse do the States have individually and in combination when the central government acts in a fashion that is contrary to the limits and enumerated powers of the Constitution?
The answer, other than an appeal to the courts, is nullification. This term is defined as the assertion that States can and should refuse to enforce unconstitutional federal laws.
This is no trifling matter.
In the past two years since the advent of the Obama administration, the federal government has seized control of one sixth of the nation’s economy, asserting control over the provision of healthcare.
It seized control of General Motors and Chrysler auto manufacturers, arbitrarily casting aside the rightful expectations of their bondholders and other creditors.
It has imposed absurd and invasive demands on air travelers.
It is considering a United Nations treaty that would render the Second Amendment null and void.
It has sued Arizona for enacting an immigration law that mirrors its own.
It is attempting through the FCC to assert control over the Internet.
In the 1860s the issue of state’s rights led to the Civil War.
One hundred and fifty years ago, on December 22, 1860, the State of South Carolina declared its independence and seceded from the Union. It did not arrive at this decision overnight. In fact, on December 10, 1832, President Andrew Jackson issued a proclamation to South Carolina disputing its right to nullify a federal law.
A South Carolina convention had declared that the tariff acts of 1828 and 1832 “are unauthorized by the Constitution of the United States and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State.”
Subsequent to Jackson’s proclamation, Congress passed the Force Act that authorized the use of military force against any State that resisted the tariff acts. A compromise engineered by Henry Clay resulted in the tariff of 1833, designed to reduce southern objections. South Carolina ended its nullification effort, but by 1861 it would no longer bend to the mandates of the federal government.
Contrary to some historical reinterpretation, the Civil War was all about State’s rights. Though President Lincoln opposed slavery, he did not introduce the issue into the conflict until after the awful slaughter on the battlefields that led to the Emancipation Proclamation. It came three years after the war had begun and was intended to introduce a moral dimension to the conflict. Slaves, however, were only freed in the Confederate southern States.
There are many issues worthy of nullification these days.
At the top of the current list is Obamacare and the fact that some twenty States have filed suit against its enforcement clearly demonstrates (1) an intense rejection of it and (2) the willingness of States to use the judicial system to seek relief.
Beyond that, we have entire federal agencies that have no legitimate basis in the Constitution.
The Department of Education should be abolished. The Constitution makes no mention of education as a federal concern. It was and should be up to the States and local communities to oversee general education. Part of the controversy raging these days concerns teacher’s union contracts that are contributing to the bankruptcy of many States.
The Department of Energy, created by executive order, should be abolished. States should have the right to determine how their natural resources should be either protected or utilized. Requiring states to use so-called alternative (wind and solar) energy is seriously wrong.
Likewise, the Environmental Protection Agency, also created by executive order, has so exceeded its original mandate that it has become a lethal threat to the economy and the welfare of all Americans.
Nullification should be utilized to rid us of these and other federal entities that overstep their mission, threatening the Bill of Rights and other constitutional limitations and freedoms.
This nation has been heading toward nullification since the 1930s when many of the Constitution’s restrictions of federal power were cast aside. This has brought the nation to the brink of financial collapse. To save it, nullification may be required.