Tuesday, December 07, 2010

The federal government’s excesses and abuses
must be dealt with

Commentary by James H. Shott

Even after last month’s election people still try to downplay the scope of the tea party sentiment and its acceptance by the American people. Critics either don’t understand the movement, or just can’t bring themselves to admit that a majority of Americans disagree with the direction the so-called “progressives” have taken the country. And they have mobilized to elect people they think will work to change that direction.

The majority plainly objects to the degree to which the federal government has grown in size, power and scope, and realizes that the general trend of government and some specific actions are dangerous to our way of life, and are not unlike the actions that drove our ancestors to risk everything in a fight for independence and to establish a limited government that would for the most part leave them alone to live their lives as they saw fit.

The list of abuses is long, and includes such things as the EPA rescinding mining permits already issued and dragging their feet on new permits in West Virginia, and the unjustified banning of oil drilling in the Gulf of Mexico and offshore, which in both cases jeopardizes the economies of those states without justification, and furthermore hampers our quest for energy independence. The federal government has ignored its responsibility to secure the southern border from illegal immigration and its dangers, and then has taken legal action against Arizona when it tried to protect its own citizens from the resulting consequences.

This problem transcends mere two-party politics. It is a breach of the 221 year-old contract between the now-fifty states and the federal government, the Constitution of the United States.

Author Thomas E. Wood, Jr. goes to great lengths in his new book, “Nullification: How to Resist Tyranny in the 21st Century,” to show that after the Revolutionary War, while the debate over the pros and cons of the proposed constitution raged prior to its ratification, Virginia put forth vigorous opposition to the wording of the document because it did not strongly enough spell out the limitations on the federal government’s power. Patrick Henry raised the concern, for example, that the term “general welfare” could be expanded and exploited by “ambitious politicians.” Today we can plainly see that Virginians were correct to worry about such expansions of power.

Mr. Wood shows, in fact, that contrary to the way most Americans understand things today, the states did not give up their individual sovereignty to the federal government when they ratified the Constitution, but retained control of all but a few specific areas.

As Federalist Edmund Randolph explained during the ratification debate, if Virginia ratified the Constitution it would do so with the understanding “that all authority not given, is retained by the people,” and “that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States,” and further that “we should be at liberty to consider as a violation of the Constitution, every exercise of a power not expressly delegated therein.” (Emphasis added)

Thomas Jefferson wrote that the individual states “entered into a compact by which they agreed to unite in a single Government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified. They retained at the same time … the other rights of independent government, comprehending mainly their domestic interests. …” (Emphasis added)

Hence, if a coal mining state like West Virginia or an oil producing state like Louisiana is put in economic jeopardy by the federal government exceeding its authority, or the safety of the citizens of Arizona is put in jeopardy by the federal government’s interference with Arizona’s efforts to protect them, the federal government’s behavior is unconstitutional.

When the government exceeds its limited authority through the passage of laws by Congress, or the imposition of regulations by an administrative agency, affected states are within their rights and obligated to ignore those laws and regulations and formally protest. It was the prospect of this sort of behavior that prompted the Tenth Amendment to the Constitution.

As Kentuckian John Breckenridge said when his state took issue with federal abuses, when the federal government passes laws that are unconstitutional, the states must “make a legislative declaration that, being unconstitutional, they are therefore void and of no effect.”

The many abuses and excesses of the federal government are harmful and dangerous to the states; they run counter to the intent of the Constitution to establish a federal government with limited and enumerated powers and to the ideal of self-government by the states which ratified it; and they are the antithesis of what the citizens of many states have chosen for themselves through their duly elected state governments.

The process of identifying and voiding unconstitutional behavior by the federal government is known as nullification, and there are many examples of states nullifying federal actions throughout the nation’s history. We can see nullification at work in the formal actions of several states in response to the healthcare reform plan.

But healthcare reform is but one of a myriad of federal excesses and abuses that must be nullified.

Cross-posted from Observations

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