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WHAT WAS THE FOUNDERS’ ORIGINAL INTENT?
by JB Williams, ©2011
(Mar. 6, 2011) — The current daily federal assault on state and individual rights has nearly every state legislature and governor scrambling to figure out what their state rights really are and how to assert them, before state sovereignty is completely eliminated under the assumed powers of so-called Federal Supremacy.
Unlike federal legislators, state legislators swear an oath to protect and preserve the rights of their states and establish state policy on behalf of state citizens. They are obligated to live within the confines of the US Constitution in so doing, but their primary oath is to the people of their individual state, not the federal government.
Yet many state officials have a convoluted understanding of their oath and obligations, claiming the existence of states’ rights, but no right or means to assert these rights.
Basic Constitutional Knowledge 101
It’s widely known that our federal government was created by the states (the colonies) to serve at the pleasure of the states and the people. We know that our federal government is a Representative Republic (not a popular democracy) and that the governing Law of the Land is the US Constitution, not an unelected oligarchy.
It’s understood that the federal government was assigned certain specific duties and the authority necessary to perform those duties, and we also know that any powers and duties not specifically delegated to the federal government in the US Constitution, are duties and powers reserved to the states and/or the people, under the Tenth Amendment in the Bill of Rights.
Despite this common knowledge, many remain confused about state rights and the methods of protecting and preserving the Republic and specifically, the rights of each state. Legislators and lawyers are no exception.
Expanded Federal Powers
Over the years since the ratification of the US Constitution, a steady effort has been under way to expand federal powers, not by Amendment process, but by legal interpretations of existing constitutional text.
The Supremacy Clause – Commerce Clause – General Welfare Clause and the Necessary and Proper Clause, have all been intentionally perverted for the purpose of expanding federal powers. Although these clauses all exist in constitutional text as delegated powers, the modern interpretation of these federal powers are now the exact opposite of their original intent.
- Federal law is “supreme” only to the degree that federal law is “constitutional” – within the delegated powers of the federal government to begin with.
- The Commerce Clause relates only to Commerce, or trade. Not every interstate event.
- The General Welfare clause was intended to keep the federal government from making laws that did not serve the general welfare of all states and citizens equally.
- And the Necessary and Proper Clause was intended to limit federal law-making to only those laws necessary and proper in the carrying out of delegated and enumerated powers.
In other words, all of these clauses were written into the US Constitution in an overt effort to limit federal powers. Yet, it is these clauses which have been perverted to an opposite meaning today, and used to expand federal power to the point that many state officials no longer know that they have state sovereignty and rights.
Protected by the Tenth
Before the colonies would ratify the Constitution, they demanded certain additional protections of both state and individual rights under our first ten amendments, known as the Bill of Rights.
The practice of subverting the Constitution via broad ungrounded interpretations has been a practice within the legal profession for so many years that few American citizens or legislators even know their rights anymore, much less how to protect and preserve them.
But the Founders made it all very simple and clear in the Tenth Amendment –
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Just in case any confusion would grow over time, or the federal government would grow despotic in nature, attempting to run roughshod over the people and/or the states, the Founding Fathers brilliantly eliminated any potential confusion with The Tenth Amendment.
The States and the People Have Rights
In short, every right imaginable on planet earth which is not a specific delegated power of the federal government, is a right reserved to the states and/or the people. End of story!
But do the states have the power or mechanisms to assert these rights, or stop the federal government from infringing upon the rights and powers reserved to the states?
The Second Amendment exists just in case the Tenth Amendment fails. It is up to the states to enforce the Tenth Amendment, or the people retain their right to act under the Second Amendment. “The strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government” – Thomas Jefferson
The Case for State Nullification
Our Declaration of Independence which established America as a free sovereign nation and set the foundation for a free society of self-governed, made it all quite clear –
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Again, in short, this language establishes that the people have the right to live free from tyranny or government intrusion. The right to live free…
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
That all government is of, by and for the people and must operate with the full consent of the governed… and if government fails to do so –
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
When the federal government ceases to perform in a manner which well serves the states and/or the people’s desire to live free, both the states and the people have a right and an obligation to alter or abolish that government.
A bankrupt federal government forcing states into bankruptcy certainly qualifies as a government which no longer serves the states or the people well, and has in fact become destructive of the only goal of government, which is to protect and preserve the rights of the people.
When the federal government acts beyond its Constitutional scope and authority, it is by definition acting “unconstitutionally,” and it is the right and obligation of the states and/or the people to end that practice for the sake of preserving our Republican form of government, not destroying it.
The right of the states to nullify unconstitutional federal acts is not a form of secession. It is a final attempt to avoid secession. It is an effort to alter the behaviors of government despotism before abolishing that despotic government becomes the only remaining alternative. It is a means of upholding, preserving and enforcing the US Constitution, not destroying it.
Protecting or Perverting the Constitution
Altering or abolishing if necessary, a government which has become destructive of the Constitution, the states and the people, is protecting the Constitution.
Allowing the subversion of the Constitution via false interpretations of constitutional text is to allow the perversion of the constitution and it can in no way be construed as protecting the Constitution, the states or the people.
To Alter or Abolish
When a federal government becomes so destructive of the purpose of freedom and liberty, it is the right of the people to alter or abolish it altogether. It is therefore the right and responsibility of the states, on behalf of their people, to step in and force the federal government to act within constitutional confines before the people are forced to take matters into their own hands.
States can and must alter the behaviors of a despotic federal government, or the people’s last remaining option is to abolish it altogether and begin anew, – “instituting new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Once the federal government fails the people, the states must act to preserve our form of government, not to destroy it.
The ability of states to nullify unconstitutional acts is not only fully constitutional, it is necessary today. Sadly, some state legislators simply do not know what the constitution says or what it means.
Nobody alive today knows as much about the content and meaning of the US Constitution as Thomas Jefferson and James Madison, and it was Jefferson and Madison who developed and proposed State Nullification powers.
On the basis of Jefferson and Madison, Arizona is poised to be the first state to pass broad-based state nullification powers in SB 1433, leading the nation towards the preservation of states’ rights and constitutional law, if they can find enough legislators who truly know their constitutional rights and have the backbone to assert them.
On the other hand, if the states fail to rein in an overbearing and over-reaching federal government under their 10th Amendment rights, the matter will be left to the people of the United States to resolve on their own.
As John F. Kennedy once put it – “Those who make peaceful revolution impossible, make violent revolution inevitable.” Nullification is a peaceful means of upholding the US Constitution as the Law of the Land. Secession is something quite different and is not likely to be a peaceful process, and is in fact a departure from the US Constitution and union of the states.
Demonstrated in the 2010 election cycle and in nationwide protests and rallies over the last few years, the people are growing increasingly intolerant of federal intrusions into their lives and impatient for a remedy.
They swept Republicans into power all across the country at the state and federal level. They demand that Republicans now live up to their campaign promises and force the federal government back into the confines of its constitutional box of limited power.
State Nullification is the proper mechanism whereby the states can take swift and decisive action against a federal government which incorrectly believes itself to be the unbridled Law of this Land and supreme in its power to enforce even unconstitutional acts.
State Nullification is designed to uphold, protect and preserve the US Constitution and the compact between the states. If nullification does not work, secession is the last remaining remedy for states and people who no longer wish to live under the boot of the federal government.
The federal government simply must be forced to live within its delegated powers, or it has indeed become destructive of the very purpose of government.
When the federal government acts in an unconstitutional manner, the states must put the federal government back in its proper place and nullification is the proper means.
For state nullification to be unconstitutional, as some insist, the Bill of Rights would have to be unconstitutional. If ill-informed people who think nullification is in any way at odds with the US Constitution are right, then the US Constitution and Bill of Rights are already dead. State sovereignty and rights do not exist, unless the states have the power and the means to protect and preserve those rights.