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Anti-Commandeering Constitution Intelwars james madison nullficiation nullification

States Just Need to Say No!

I’ve never attended Mardi Gras, but I have experienced the pirate-themed mega-party known as Gasparilla in Tampa. And I watched d a lot of people “breaking the law.”

I witnessed hundreds of revelers drinking alcohol from open containers. I bumped into countless publicly intoxicated partiers. I even saw women exposing their breasts in exchange for 10 cent plastic beads. And I could go on. There were much debauchery and “illegal” activity.

I also saw a lot of cops.

But I didn’t personally witness one arrest.

Mostly, cops just looked on as thousands of people flouted the law. In fact, many of the cops seemed somewhat amused by the antics.

Try engaging in any of the above activities in downtown Tampa on a normal Tuesday night, and you will quickly find yourself taking up residence at the Hillsborough County Jail.

Sure, police make some arrests and issue a few citations during Gasparilla – 11 arrests in 2019.  Yes. You read that right. Eleven. Did I mention an estimated 300,000 people attended the event?

Fact — hundreds of thousands of revelers cram into downtown Tampa for Gasparilla, and huge numbers of those people break one or more laws with impunity. Simply put, the relatively small number of cops could never hope to control the masses and force compliance with the law. So they sat back and generally just tried to contain the mayhem.

This illustrates an important reality: as more and more people simply ignore a command, those trying to enforce it find it increasingly difficult to do so. It boils down to a simple matter of resources, manpower and scale. A few hundred cops cannot enforce their will on 300,000 people.

Herein lies the secret to our nullification strategy. States don’t have to actually do anything. They just have to stop helping the feds enforce federal laws or implement federal programs. The laws may remain on the books, but they become impossible to enforce. For all practical purposes, noncompliance renders them null, void and of no effect.

State and local non-compliance with federal acts, rules, regulations, and the implementation of federal programs, creates the same dynamic for federal agencies as Mardi Gras or Gasparilla does for local law enforcement. When enough states refuse to comply or cooperate with the enforcement of a federal act, D.C. finds it increasingly difficult to impose its will.

James Madison understood this dynamic. That’s why his blueprint to stop federal overreach in Federalist #46 was “a refusal to cooperate with officers of the union.” Madison said a single state refusing to cooperate would create “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. “

In fact, the federal government depends on state and local cooperation for virtually everything it does – from enforcing drug laws to implementing its many programs. During the run-up to the 2013 federal government shutdown, the National Governors Association sent a panicked letter to congressional leadership begging them to avoid the shutdown. In this email, the governors affirmed the feds need the states.

“States are partners with the federal government in implementing most federal programs. A lack of certainty at the federal level from a shutdown therefore translates directly into uncertainty and instability at the state level.” [Emphasis added]

Did you catch that?

Most federal programs.

That means states can refuse to serve as cooperative partners and shut down most federal programs.

There is great power in the word no. Cops can’t control Gasparilla partiers. And the feds can’t control states. State governments just need to stand up and assert their authority. They need to say no.

This article was adapted from an excerpt from Our Last Hope: Rediscovering the Lost Path to Liberty.

The post States Just Need to Say No! first appeared on Tenth Amendment Center.

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Founding Principles Intelwars john adams Murray Rothbard nullification revolution Samuel Adams Strategy Thomas Jefferson William Lloyd Garrison

The Nullification Movement is a Revolution in Thought

This article is excerpted from the 2017 State of the Nullification Movement Report. Read or download the latest edition here. And, become a member here to support the TAC.

We are in the midst of a revolution.

But it’s not a revolution in the sense most people think of. It’s not a war fought with guns and bombs.

It’s a battle of ideas.

Today’s revolution is a revolution in thought.

John Adams, founding father and second president of the United States, described the American revolution in much the same way. In his 1818 letter to Hezekiah Niles, he wrote:

“But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. … This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

The Tenth Amendment Center was founded in 2006. At that time, nullification was a maligned idea relegated to the dustbin of history. In our early years, we counted the mere introduction of a non-binding resolution in support of the Tenth Amendment as a major success.

From those small seeds, a formidable nullification movement has grown up over the past 11-plus years. Last year alone, more than 450 bills to limit federal power in some way were introduced in state legislatures across the country.

From Small Things…

2017 marked the 250th anniversary of some of the most important essays in American history. Written by John Dickinson, the “Penman of the Revolution,” these 12 essays known as “Letters from a Farmer in Pennsylvania” were in response to the Townshend Acts.

In the first essay, Dickinson discussed the New York Restraining Act, which was the last of these British Acts. It was intended to punish the Assembly of New York, suspending its legislative powers for failing to fully comply with orders from the crown.

Dickinson wrote:

“If the parliament may lawfully deprive New York of any of her rights, it may deprive any, or all the other colonies of their rights; and nothing can possibly so much encourage such attempts, as a mutual inattention to the interests of each other. To divide, and thus to destroy, is the first political maxim in attacking those, who are powerful by their union.”

He continued on to say that, in essence, the rightful response at that moment would have been for other assemblies to have passed non-binding resolutions informing Parliament that the act was a violation of rights and that it should be repealed.

Why? His answer came through clearly in his signature, where he wrote the Latin phrase, Concordia res parvae crescunt.

“Small things grow great by concord.”

From its inauspicious beginnings, today’s nullification movement is growing into a revolutionary force.

TURNING RADICAL IDEALISM INTO WORKABLE STRATEGY

It’s one thing to have lofty goals. Achieving them takes more than strong rhetoric. You have to have a solid, actionable strategy.

In response to the unconstitutional Alien and Sedition Acts, Thomas Jefferson used the Kentucky and Virginia Resolutions of 1798 to lay out the principles of nullification. But the resolutions themselves did not nullify the Alien and Sedition Acts. Instead, Jefferson and Madison first created a framework for future action.

On November 17, 1798, one week after passage of the Kentucky Resolutions, Thomas Jefferson sent a draft to James Madison, along with a letter. He wrote:

I inclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.

Jefferson and Madison stated their principles, justified their actions, and then left the door open to proceed with a practical strategy they could adapt as circumstances evolved.

At the TAC, we try to follow this blueprint. We always keep the ultimate goal in front of us, but we act strategically when and how specific situations allow. It’s a balancing act – a give and take – always keeping in mind that you don’t achieve radical change by abandoning radical principles.

William Lloyd Garrison took a similar tack in his battle against slavery in the U.S.

Garrison ranks as one of the greatest abolitionists in American history, and he understood this. He steadfastly stuck by his call for absolute and immediate emancipation of all slaves.

While it seems absurd to our 21st century sensibilities, total abolition of slavery was an idealistic, radical, extremist position in the mid-1800s. Principled abolitionists were generally reviled, even in the North. The broader abolitionist movement was dominated by pragmatists content with modest policy changes here and there. A lot of them were merely jockeying for political power. Garrison would have none of this. He believed slavery should end immediately, and he constantly said so. He wasn’t concerned about winning a popularity contest or convincing people he was properly mainstream. He unapologetically wore a badge of radicalism. He unwaveringly pursued the ideal.

But Garrison wasn’t just running around like a proverbial bull in a china shop. He had pragmatic reasons for maintaining his hard-core stance. He recognized that by pushing for the ultimate goal he was more likely to reach it.

“Urge immediate abolition as earnestly as we may, it will, alas! be gradual abolition in the end. We have never said that slavery would be overthrown by a single blow; that it ought to be, we shall always contend.”

Garrison understood that if he started by seeking half-measures, he would never end up with anything more than half-measures. He warned, “Gradualism in theory is perpetuity in practice.”

Economist and political philosopher Murray Rothbard put it this way in A Case for Radical Idealism:

“William Lloyd Garrison was not being ‘unrealistic’ when in the 1830s he first raised the glorious standard of immediate emancipation of the slaves. His goal was the morally proper one, and his strategic realism came in the fact that he did not expect his goal to be quickly reached …

Gradualism in theory indeed undercuts the goal itself by conceding that it must take second or third place to other non- or antilibertarian considerations. For a preference for gradualism implies that these other considerations are more important than liberty.”

At the TAC, we always keep the Constitution and liberty as our core objective.  But we also recognize that it will take a series of small victories to reach our ultimate goal.

We’ll never abandon our radical idealism. But we will always work strategically, step-by-step, to achieve our objectives.

The State of the Nullification Movement Report tells the current story of our efforts. Read it in full here.

NOTE: Michael Boldin contributed to this post.

The post The Nullification Movement is a Revolution in Thought first appeared on Tenth Amendment Center.

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Constitution History Intelwars John Breckinridge Kentucky and Virginia Resolutions Kentucky Resolutions nullification

New Evidence: The Kentucky Resolutions of 1798 Were All About Nullification

Nullification skeptics will often argue that the Kentucky Resolutions of 1798 weren’t actually proposing nullification. They base their argument on the fact that John Breckinridge removed specific references to nullification from Jefferson’s draft before he introduced it in the Kentucky House. But evidence from the debates in the House reveals that the resolutions were absolutely intended to set the stage for nullification and all of the representatives who voted to pass them knew it.

In his original draft, Jefferson specifically asserted a state’s right to “nullify” unconstitutional acts.

“Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis]) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” [Emphasis added]

Jefferson sent former Virginia ratifying convention delegate Wilson Cary Nicholas a draft of the resolution, likely hoping the state legislator could get them introduced in Virginia. In October 1798, Wilson indicated that state representative John Breckinridge was willing to introduce the resolutions in Kentucky. Breckinridge suffered from tuberculosis and made a recuperative trip to Sweet Springs, Va. late in August of that year. Nicholas likely gave the Kentucky lawmaker a copy of Jefferson’s draft during that trip.

On Nov. 8, 1798, Breckinridge introduced an amended version of Jefferson’s draft. Most notably, Breckinridge omitted the specific nullification language from the actual version considered by the Kentucky legislature, seeking to moderate the tone of the resolutions.

Those who deny the legitimacy of state nullification seize upon the omission of the nullification language as proof that Breckinridge didn’t actually believe the state had the power to nullify and was unwilling to present resolutions to that effect to the state legislature.

I have always contended that even without the specific language, the resolutions still laid the foundation for nullification. By declaring the Alien and Sedition Acts unconstitutional, and declaring that it “is not law, but is altogether void, and of no force,” Breckinridge presented the Kentucky legislature with a nullification resolution, even with the actual word omitted.

His motives for removing the direct reference to nullification were purely political. Anger over the Alien and Sedition Acts was so intense, there were some calls for violent action against the federal government. As a first step, Breckinridge wanted to walk a line between making a strong case for Kentucky’s right to act while maintaining a moderate tone.

But during a debate on the House floor recorded by the Frankfort Palladium, Breckinridge made it absolutely clear that the resolutions were supporting a case nullification and he specifically used the word.

Rep. William Murray was one of the few Federalist Party members in the Kentucky House. He made a speech in opposition to the resolutions on the House floor, arguing that it wasn’t the state legislature’s job to censure Congress and that it had no authority to declare a duly enacted law unconstitutional. Breckinridge forcefully responded in a speech of his own, saying, “The legislature is the constitutional and proper organ through which the will of the people is known, and when known, effectually executed on ordinary occasions.” He went on to ask a poignant question: “If Congress received no censure from the state legislature, from whom is the censure to come?”

In fact, when the people had protested the Alien and Sedition Acts in various county assemblies, Federalist Party supporters had accused them of raising “tumultuous mobs.”

Breckinridge went further, arguing that Congress was not “the lords and masters” of the states. He quipped, “The doctrine of passive obedience and non-resistance has grown rather unfashionable, and obsolete to be now revived.”

Breckinridge said his hope was that upon the representations of the state legislatures, Congress would “expunge the unconstitutional proceedings from the annals of the United States.” But he went on to say that if Congress attempted to enforce the Alien and Sedition Acts that it was “the right and the duty of the several states to nullify those acts and to protect their citizens from their operation.”

Breckinridge made this speech in front of the full House. This proves beyond a doubt that Breckinridge understood the resolutions to justify nullification. In fact, the intent of introducing them was to set the stage for further action if Congress failed to repeal the onerous laws. And everybody in the legislative body knew this because they heard Breckinridge’s defense of the resolutions.

The resolution passed the House on Nov. 10 with only three dissenting votes. The Senate unanimously concurred three days later, and Gov. James Garrard signed the resolutions on Nov. 16.

The day after Garrard signed the resolutions, Jefferson sent a draft to James Madison, writing, “I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.” [Emphasis added]

Kentucky followed up with a second resolution affirming its position in 1799, notably including the word “nullification,” omitted in the final version of the Kentucky Resolutions of 1798 passed by the state legislature.

“The several states who formed that instrument (the Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.”

The post New Evidence: The Kentucky Resolutions of 1798 Were All About Nullification first appeared on Tenth Amendment Center.

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Anti-Commandeering Doctrine Federalist #46 Intelwars james madison nullification Strategy Supreme Court

The Anti-Commandeering Doctrine: An Introduction

The anti-commandeering doctrine provides a powerful tool to undermine overreaching, unconstitutional federal power. So, what is this doctrine? What is it based upon? And how can it be used as an effective tool for liberty?

How Do We Confront Federal Overreach?

Most people assume the feds have the final say. When Uncle Sam says jump, states and local government simply ask, “How high?” But given that the federal government was intended to limit its actions to constitutionally delegated powers and all other authority was left “to the states and the people” per the Tenth Amendment, how do we hold the federal government in check? How do we stop it from exercising powers not delegated?

This isn’t a new question. In fact, those skeptical of the Constitution raised it during the ratification debates. James Madison answered it in Federalist #46.

In his blueprint for resisting federal power, Madison offered a number of actions, but most significantly, he suggested that a “refusal to cooperate with officers of the union” would impede federal overreach.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, 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.” [Emphasis added]

What Is the Anti-Commandeering Doctrine?

Anti-commandeering is a longstanding Supreme Court doctrine. In a nutshell, the anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes.

In effect, the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort.

Which Supreme Court Cases support the Anti-Commandeering Doctrine?

The anti-commandeering doctrine rests on five landmark cases, the first dating back to 1842.

Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution

New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at     (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

Can’t the Federal Government Punish Wayward States By Cutting Funding?

In simple terms, the federal government cannot use funding to coerce states to take a desired action. Independent Business v. Sebelius directly addressed this issue.

The federal government can withhold funding related to any action that a state refuses to take. For instance, if the state refuses to enforce federal marijuana laws, the federal government can cut funding relating to drug enforcement. But it cannot cut unrelated funding to punish the state. In other words, Congress couldn’t cut education funding to punish a state for not cooperating with marijuana prohibition.

How Do We Determine What Is or Isn’t Constitutional? Isn’t that the Supreme Court’s Job?

The short answer is it doesn’t matter. Constitutionality isn’t part of the equation. The anti-commandeering doctrine doesn’t depend on a finding of constitutionality. States can refuse to provide personnel or resources for any federal activity regardless of its constitutionality. The utilization of state recourses, funds and personnel are totally at the discretion of the state government.

Will This Strategy Work?

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal law enforcement efforts and program implementation, states, and even local governments, can effectively bring the federal actions to an end.

Consider the 36 states that have legalized marijuana despite federal prohibition.

The legalization of marijuana in a state removes a layer of laws prohibiting the possession and use of marijuana even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

The same is true for virtually every federal action, from gun control, to Obamacare, to FDA mandates. The federal government depends on the states. And the states don’t have to cooperate.

The post The Anti-Commandeering Doctrine: An Introduction first appeared on Tenth Amendment Center.

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There is No Anti-Commandeering Doctrine when Local Governments Take on a State

The Tenth Amendment Center’s practical nullification strategy relies on James Madison’s blueprint for taking on federal power. Madison advised that “a refusal to cooperate with officers of the union” would create impediments and obstructions to federal acts.

The Supreme Court’s long-standing anti-commandeering doctrine supports this nullification strategy. In a nutshell, this legal doctrine prohibits the federal government from “commandeering” state and local personnel or resources for federal purposes.

In effect, the federal government cannot force state or local governments to cooperate in the enforcement of federal laws or the implementation of federal programs. With the Supreme Court affirming this doctrine in five major cases dating back to 1842, the feds are legally powerless in the face of state noncooperation.

A lot of people want to apply this anti-commandeering strategy to state governments as well. The idea would be for a county or local government to simply refuse to enforce a state law. Activists have specifically pushed this strategy to block enforcement of state gun control laws. But local non-cooperation with state laws poses significant problems from a legal standpoint because the relationship between a city or county and a state is much different than the relationship between a state and the federal government.

By their action, the states created the federal government. Even though they make up part of the union, each state remains a sovereign political society. The states delegated some powers to the federal government and within its constitutional authority, the federal government enjoys supremacy. But outside of the federal government’s delegated authority, the states maintain their fundamental independence. In Federalist #32, Alexander Hamilton explained that under the new Constitution, the states would retain their sovereignty and independence, and would only be subject to the general government in those areas where power was specifically delegated to it.

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

State governments and their local governments have a fundamentally different relationship. Cities and counties are “political subdivisions” of the state. They possess virtually no autonomy unless their state legislatures give it to them. And what the legislature can give, the legislature can take away. In fact, cities and counties exist at the will of the state government. The state legislature can change their borders, split them up, or even dissolve them completely. As a result, counties and cities have a legal obligation to follow the directives of the state government.

From a legal standpoint, no anti-commandeering doctrine exists for cities or counties. They cannot legally refuse to cooperate with state dictates. The state government can commandeer local personnel and resources for state purposes because cities and counties only exist as extensions of the state.

There are some exceptions to this rule. Some states, including Illinois, extend local governments “home rule” privileges, granting them some autonomy. But even in these states, the legislature can override home rule.

In practice, local governments can still refuse to enforce state laws or implement state programs. But unlike states that refuse to cooperate with the federal government, local governments can be punished by the state for their noncooperation. The state legislature can legally cut funding to local governments that refuse to enforce a state law. They even have the power to remove local officials from office or perhaps subject them to criminal penalties.

This makes local non-cooperation with a state government a very difficult strategy to carry out. It could prove successful if enough local entities ban together. But without the anti-commandeering legal doctrine to shield them, it’s much easier for a state to force local and county compliance. The states have legal cover when they refuse to cooperate with the federal government. Local governments enjoy no such legal shield against the state.

From a strategic standpoint, activists should be wary of trying to employ a strategy created for states to use against the feds as a tool for local governments to take on a state. It could be effective if enough local entities work together and create enough political pressure to dissuade the state from cracking down. But you need to be aware that local governments and their employees enjoy virtually no legal protection and the state has significant latitude in how it deals with an uncooperative local entity.

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Today in History: Kentucky Resolutions of 1798 Passed

On this date 222 years ago, the Kentucky state House took a bold stand against federal overreach with the passage of resolutions penned by Thomas Jefferson.

It’s one thing to claim the Constitution limits the federal government to its specific list of powers. It’s another thing to hold the federal government to that list. So, what do we do when the federal government oversteps its constitutional limits?

Opponents of the clearly unconstitutional Alien and Sedition Acts had to grapple with this question way back in 1798.

During the summer of that year, Congress passed, and President John Adams signed into law, four acts together known as the Alien and Sedition Acts. With winds of war blowing across the Atlantic, the Federalist Party majority wrote the laws to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear of the French to stir up support for these draconian laws, expanding federal power, concentrating authority in the executive branch and severely restricting freedom of speech.

Two of the Alien Acts gave the president the power to declare foreign U.S. residents an enemy, lock them up and deport them. These acts vested judicial authority in the executive branch and obliterated due process. The Sedition Act essentially outlawed criticizing the federal government – a clear violation of the First Amendment.

Recognizing the grave danger these acts posed to the basic constitutional structure, Thomas Jefferson and James Madison drafted resolutions that were passed by the Kentucky and Virginia legislatures on Nov. 10 and Dec. 21, 1798, respectively. The “Principles of ’98” formalized the principles of nullification as the rightful remedy when the federal government oversteps its authority.

The Alien and Sedition Acts outraged many Kentuckians. Several counties in the Commonwealth adopted resolutions condemning the acts, including Fayette, Clark, Bourbon, Madison and Woodford. A Madison County Kentucky militia regiment issued an ominous resolution of its own, stating, “The Alien and Sedition Bills are an infringement of the Constitution and of natural rights, and that we cannot approve or submit to them.” Several thousand people gathered at an outdoor meeting protesting the acts in Lexington on August 13.

The push to nullify the Alien and Sedition Acts was not simply the act of opportunistic politicians. It rose out of the passionate demands of the citizenry in Kentucky, as well as Virginia.

Jefferson penned the original draft of the Kentucky Resolutions within a month of Congress passing the Sedition Act.

“That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

After outlining each constitutional violation and overreach of federal power, Jefferson called for action – nullify now!

“Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” [Emphasis added]

Jefferson sent former Virginia ratifying convention delegate Wilson Cary Nicholas a draft of the resolution, likely hoping the state legislator could get them introduced in Virginia. In October 1798, Wilson indicated that state representative John Breckinridge was willing to introduce the resolutions in Kentucky. Breckinridge suffered from tuberculosis and made a recuperative trip to Sweet Springs, Va. late in August of that year. Nicholas likely gave the Kentucky lawmaker a copy of Jefferson’s draft during that trip.

On Nov. 7, 1798, Gov. James Garrard addressed the Kentucky state legislature, noting the vehement opposition to the Alien and Sedition Acts. He said Kentucky was, “if not in a state of insurrection, yet utterly disaffected to the federal government.” And noted that the state “being deeply interested in the conduct of the national government, must have a right to applaud or to censure that government, when applause or censure becomes its due,” urging the legislature to reaffirm its support of the U.S. Constitution while “entering your protest against all unconstitutional laws and impolitic proceedings.”

That same day, Breckinridge announced to the House he intended to submit resolutions addressing Garrard’s message. The following day, the Fayette County lawmaker followed through, introducing an amended version of Jefferson’s draft. Most notably, Breckinridge omitted the word nullification from the actual version considered by the Kentucky legislature, seeking to moderate the tone of the resolution. Removal of the nullification reference apparently didn’t bother Jefferson, and in fact, did little to change the fundamental thrust of the resolution. By declaring the Alien and Sedition Acts unconstitutional, null and void, the Kentucky legislature voted on a nullification resolution, even with the actual word omitted.

The resolution passed the House on Nov. 10 with only three dissenting votes. The Senate unanimously concurred three days later, and Gov. Garrard signed the resolution on Nov. 16.

The resolutions didn’t end the Alien and Sedition Acts, but they laid a philosophical foundation to resist them through further state action.

The following day, Jefferson sent a draft of his resolution to James Madison, writing, “I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.” [Emphasis added]

Kentucky followed up with a second resolution affirming its position in 1799, notably including the word “nullification,” omitted in the final version of the Kentucky Resolutions of 1798 passed by the state legislature.

“The several states who formed that instrument (the Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.”

Jefferson’s principles have endured for over 220 years despite relentless attacks and demagoguery. Americans have appealed to the ideas brilliantly articulated in the Kentucky Resolutions to protect free speech, to promote economic justice, to stop military conscription and to protect the rights of blacks during the fugitive slave era.

Jefferson’s words leave no doubt – nullification was the rightful remedy, and it remains so today.

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What’s Next? Nullify! And then Nullify Some More

This is last night’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them.

An elective despotism was not the government we fought for
-Thomas Jefferson, Notes on the State of Virginia (1784)

As I write this, it’s midnight, Eastern time – election night. Like you, I don’t know who won. But what I do know is this – no matter what happens with the counting, at the end of the day, we’re still facing the largest government in the history of the world.

I don’t say that lightly. 

When it comes to spending, for example, the so-called “federal” government in Washington D.C. spends nearly double what China does. And it spends almost 8-times more per capita than China’s “socialist state under the people’s democratic dictatorship.”

This is nothing like the government James Madison told us would have powers that are “few and defined.” Not even close.

Richard Henry Lee, in a letter to Samuel Adams on Oct. 5, 1787, might have the best view of what we’re facing today:

“I suppose my dear Sir, that the good people of the U. States in their late generous contest, contended for free government in the fullest, clearest, and strongest sense. That they had no idea of being brought under despotic rule under the notion of “Strong government,” or in form of elective despotism: Chains being still Chains, whether made of gold or iron.

When I started the Tenth Amendment Center back in 2006 (and for at least the next 2 years) establishment Republicans and pundits on the right attacked the TAC for opposing unconstitutional acts from the Bush administration.

“Move to Cuba” is a phrase we often heard when opposing the PATRIOT Act. Our opposition to the Iraq war got us hit with “You’re with the terrorists.” And working in the states to nullify the REAL ID act or federal prohibition, branded us “libtards.”

Of course, the attacks continued when Obama took office, and while the names we were called changed to “racist” or “neoconfederate” – the message was the same: oppose centralized power, and the people who hold that power will see you as the greatest threat to their control.

But, to us, the Constitution matters no matter who’s in power in Washington D.C. – and no matter how much they attack our work.

As Thomas Jefferson put it in his argument against the Constitutionality of a National Bank:

“To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

The essential question, of course, is WHAT’S NEXT?

Jefferson again gave us the answer in his draft of the Kentucky Resolutions of 1798, pointing out that “vote the bums out” is a good strategy “in cases of an abuse of the delegated powers.”

But…

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy

James Madison told us that states are “duty-bound to interpose.”  

Duty. Not just a good idea.

And we’ll continue that duty no matter which team is in power, or what person occupies the White House.

As Samuel Adams put it, “All might be free if they valued freedom – and defended it as they ought.” 

Defending freedom doesn’t mean waiting for the largest government in history to give us permission to live free. It means “we the people” need to learn how to exercise our rights whether the government wants us to – or not.

In the last few years, we’ve gotten more nullification bills introduced – and PASSED – than at any time in history. 

But we’ve got a LOT of work yet to do.

We absolutely cannot be complacent, and we need your help now more than ever. I hope you’ll stand with us in this effort by starting a new membership to support our work. As little as 2 bucks a month means a great deal to us.

With your help, we’ll not only get the job done right now, but we’ll go much further for the Constitution and liberty in the years to come.

JOIN TAC, Support the Constitution and Liberty!
https://tenthamendmentcenter.com/members/

Concordia res parvae crescunt
(small things grow great by concord)

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State of the Nullification Movement Report 2019-20

“Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom!”

Writing as Candidus in the Boston Gazette on Oct. 14, 1771, Samuel Adams recognized an important and timeless truth. Turning a blind eye to an attack on liberty only guarantees that more attacks will follow in the future.

The same goes for violations of the Constitution, which the Founders often referred to as “usurpations,” or the exercise of “arbitrary power.”

History bears out this truth. Step-by-step, the federal government has expanded its own power and chipped away our liberties as most people turned a blind eye.

In his 1791 Opinion on the Constitutionality of a National Bank, Thomas Jefferson agreed with Adams in principle when he wrote:

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” [emphasis added]

Today we face a federal government that has taken literally hundreds of thousands of steps beyond the boundaries drawn by the Constitution.Here at the Tenth Amendment Center, we will never turn a blind eye, and step-by-step, we’re pushing the feds back.

But turning things around from a government with tens of thousands of unconstitutional “laws,” regulations, rules and orders on the books isn’t going to happen in a single step either.

As Thomas Jefferson put it in a 1790 letter to the Rev. Charles Clay:

The ground of liberty is to be gained by inches, that we must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get. It takes time to persuade men to do even what is for their own good.” [emphasis added]

To be blunt, anyone promising a silver bullet is lying to you.

Step-by-step. Inch-by-inch. Brick-by-brick. That’s how we build a strong foundation for the Constitution and liberty.

The State of the Nullification Movement Report tells the current story of our efforts.

We like to think of it as a prospectus, of sorts – an “investor’s guide” to our work here the Tenth Amendment Center.

Read it here

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Nullify Government Tyranny: In 2020, Harness the Power of Your Discontent

Twenty years into the 21st century, and what do we have to show for it?

Government corruption, tyranny and abuse have propelled us at warp speed towards a full-blown police state in which egregious surveillance, roadside strip searches, police shootings of unarmed citizens, censorship, retaliatory arrests, the criminalization of lawful activities, warmongering, indefinite detentions, SWAT team raids, asset forfeiture, police brutality, profit-driven prisons, and pay-to-play politicians have become the new normal.

Here’s just a small sampling of the laundry list of abuses—cruel, brutal, immoral, unconstitutional and unacceptable—that have been heaped upon us by the government over the past two decades.

The government failed to protect our lives, liberty and happiness. The predators of the police state wreaked havoc on our freedoms, our communities, and our lives. The government didn’t listen to the citizenry, refused to abide by the Constitution, and treated the citizenry as a source of funding and little else. Police officers shot unarmed citizens and their household pets. Government agents—including local police—were armed to the teeth and encouraged to act like soldiers on a battlefield. Bloated government agencies were allowed to fleece taxpayers. Government technicians spied on our emails and phone calls. And government contractors made a killing by waging endless wars abroad.

The American President became more imperial. Although the Constitution invests the President with very specific, limited powers, in recent years, American presidents (Trump, Obama, Bush, Clinton, etc.) claimed the power to completely and almost unilaterally alter the landscape of this country for good or for ill. The powers that have been amassed by each successive president through the negligence of Congress and the courts—powers which add up to a toolbox of terror for an imperial ruler—empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability. The presidency itself has become an imperial one with permanent powers.

Militarized police became a power unto themselves, 911 calls turned deadly, and traffic stops took a turn for the worse. Lacking in transparency and accountability, protected by the courts and legislators, and rife with misconduct, America’s police forces became a growing menace to the citizenry and the rule of law. Despite concerns about the government’s steady transformation of local police into a standing military army, local police agencies acquired even more weaponry, training and equipment suited for the battlefield. Police officers were also given free range to pull anyone over for a variety of reasons and subject them to forced cavity searches, forced colonoscopies, forced blood draws, forced breath-alcohol tests, forced DNA extractions, forced eye scans, forced inclusion in biometric databases.

The courts failed to uphold justice. With every ruling handed down, it becomes more apparent that we live in an age of hollow justice, with government courts more concerned with protecting government agents than upholding the rights of “we the people.” This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution. A review of critical court rulings over the past two decades, including some ominous ones by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting the ruling class and government agents than with upholding the rights enshrined in the Constitution.

The Surveillance State rendered Americans vulnerable to threats from government spies, police, hackers and power failures. Thanks to the government’s ongoing efforts to build massive databases using emerging surveillance, DNA and biometrics technologies, Americans have become sitting ducks for hackers and government spies alike. Billions of people have been affected by data breaches and cyberattacks. On a daily basis, Americans have been made to relinquish the most intimate details of who we are—our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.)—in order to navigate an increasingly technologically-enabled world.

Mass shootings claimed more lives. Mass shootings have taken place in virtually every venue, including at churches, in nightclubs, on college campuses, on military bases, in elementary schools, in government offices, and at concerts. However, studies make clear that the government’s gun violence—inflicted on unarmed individuals by battlefield-trained SWAT teams, militarized police, and bureaucratic government agents trained to shoot first and ask questions later—poses a greater threat to the safety and security of the nation than any mass shooter.

Debtors’ prisons made a comeback. Not content to expand the police state’s power to search, strip, seize, raid, steal from, arrest and jail Americans for any infraction, no matter how insignificant, state courts were given the green light to resume their practice of jailing individuals who are unable to pay the hefty fines imposed by the American police state. These debtors’ prisons play right into the hands of the corporations that make a profit by jailing Americans. This is no longer a government “of the people, by the people, for the people.” It has become a government “of the rich, by the elite, for the corporations,” and its rise to power has been predicated on shackling the American taxpayer to a debtors’ prison guarded by a phalanx of politicians, bureaucrats and militarized police with no hope of parole and no chance for escape.

The cost of endless wars drove the nation deeper into debt. America’s war spending has already bankrupted the nation to the tune of more than $20 trillion dollars. Policing the globe and waging endless wars abroad hasn’t made America—or the rest of the world—any safer, but it has made the military industrial complex rich at taxpayer expense. Approximately 200,000 US troops are stationed in 177 countries throughout the world, including Africa, where troops reportedly carry out an average of 10 military exercises and engagements daily. Meanwhile, America’s infrastructure is falling apart. The interest on the money America has borrowed to wage its wars will cost an estimated $8 trillion.

“Show your papers” incidents skyrocketed. We are not supposed to be living in a “show me your papers” society. Despite this, the U.S. government has introduced measures allowing police and other law enforcement officials to stop individuals (citizens and noncitizens alike), demand they identify themselves, and subject them to patdowns, warrantless searches, and interrogations. These actions fly in the face of longstanding constitutional safeguards forbidding such police state tactics.

The government waged war on military veterans. The government has done a pitiful job of respecting the freedoms of military veterans and caring for their needs once out of uniform. Despite the fact that the U.S. boasts more than 20 million veterans who have served in World War II through the present day, the plight of veterans today is America’s badge of shame, with large numbers of veterans impoverished, unemployed, traumatized mentally and physically, struggling with depression, suicide, and marital stress, homeless, subjected to sub-par treatment at clinics and hospitals, left to molder while their paperwork piles up within Veterans Administration offices, and increasingly treated like criminals—targeted for surveillance, censorship, threatened with incarceration or involuntary commitment, labeled as extremists and/or mentally ill, and stripped of their Second Amendment rights—for daring to speak out against government misconduct.

Free speech was dealt one knock-out punch after another. Protest laws, free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, shadow banning on the Internet, and a host of other legalistic maladies dreamed up by politicians and prosecutors (and championed by those who want to suppress speech with which they might disagree) conspired to corrode our core freedoms, purportedly for our own good. On paper—at least according to the U.S. Constitution—we are technically free to speak. In reality, however, we are only as free to speak as a government official—or corporate entities such as Facebook, Google or YouTube—may allow. The reasons for such censorship varied widely from political correctness, so-called safety concerns and bullying to national security and hate crimes but the end result remained the same: the complete eradication of free speech.

The government waged a renewed war on private property. The battle to protect our private property has become the final constitutional frontier, the last holdout against our freedoms being usurped. We no longer have any real property rights. That house you live in, the car you drive, the small (or not so small) acreage of land that has been passed down through your family or that you scrimped and saved to acquire, whatever money you manage to keep in your bank account after the government and its cronies have taken their first and second and third cut…none of it is safe from the government’s greedy grasp. At no point do you ever have any real ownership in anything other than the clothes on your back. Everything else can be seized by the government under one pretext or another (civil asset forfeiture, unpaid taxes, eminent domain, public interest, etc.).

Schools became even more like prisons. So-called school “safety” policies—which run the gamut from zero tolerance policies that punish all infractions harshly to surveillance cameras, metal detectors, random searches, drug-sniffing dogs, school-wide lockdowns, active-shooter drills and militarized police officers—have turned schools into prisons and young people into prisoners. From the moment a child enters one of the nation’s 98,000 public schools to the moment she graduates, she will be exposed to a steady diet of draconian zero tolerance policies that criminalize childish behavior, overreaching anti-bullying statutes that criminalize speech, school resource officers (police) tasked with disciplining and/or arresting so-called “disorderly” students, standardized testing that emphasizes rote answers over critical thinking, politically correct mindsets that teach young people to censor themselves and those around them, and extensive biometric and surveillance systems that, coupled with the rest, acclimate young people to a world in which they have no freedom of thought, speech or movement.

The Deep State took over. The American system of representative government was overthrown by the Deep State—a.k.a. the police state a.k.a. the military/corporate industrial complex—a profit-driven, militaristic corporate state bent on total control and global domination through the imposition of martial law here at home and by fomenting wars abroad. The “government of the people, by the people, for the people” has perished. In its place is a shadow government, a corporatized, militarized, entrenched bureaucracy that is fully operational and staffed by unelected officials who are, in essence, running the country and calling the shots in Washington DC, no matter who sits in the White House. Mind you, by “government,” I’m not referring to the highly partisan, two-party bureaucracy of the Republicans and Democrats. Rather, I’m referring to “government” with a capital “G,” the entrenched Deep State that is unaffected by elections, unaltered by populist movements, and has set itself beyond the reach of the law. This is the hidden face of a government that has no respect for the freedom of its citizenry. This shadow government, which “operates according to its own compass heading regardless of who is formally in power,” makes a mockery of elections and the entire concept of a representative government.

The takeaway: Everything the founders of this country feared has come to dominate in modern America. “We the people” have been saddled with a government that is no longer friendly to freedom and is working overtime to trample the Constitution underfoot and render the citizenry powerless in the face of the government’s power grabs, corruption and abusive tactics.

So how do you balance the scales of justice at a time when Americans are being tasered, tear-gassed, pepper-sprayed, hit with batons, shot with rubber bullets and real bullets, blasted with sound cannons, detained in cages and kennels, sicced by police dogs, arrested and jailed for challenging the government’s excesses, abuses and power-grabs?

No matter who sits in the White House, politics won’t fix a system that is broken beyond repair.

For that matter, protests and populist movements also haven’t done much to push back against an authoritarian regime that is deaf to our cries, dumb to our troubles, blind to our needs, and accountable to no one.

So how do you not only push back against the police state’s bureaucracy, corruption and cruelty but also launch a counterrevolution aimed at reclaiming control over the government using nonviolent means?

You start by changing the rules and engaging in some (nonviolent) guerilla tactics.

Take part in grassroots activism, which takes a trickle-up approach to governmental reform by implementing change at the local level (in other words, think nationally, but act locally).

And then, nullify everything the government does that flies in the face of the principles on which this nation was founded.

If there is any means left to us for thwarting the government in its relentless march towards outright dictatorship, it may rest with the power of juries and local governments to invalidate governmental laws, tactics and policies that are illegitimate, egregious or blatantly unconstitutional.

In an age in which government officials accused of wrongdoing—police officers, elected officials, etc.—are treated with general leniency, while the average citizen is prosecuted to the full extent of the law, nullification is a powerful reminder that, as the Constitution tells us, “we the people” are the government.

For too long we’ve allowed our so-called “representatives” to call the shots. Now it’s time to restore the citizenry to their rightful place in the republic: as the masters, not the servants.

Nullification is one way of doing so.

Various cities and states have been using this historic doctrine with mixed results on issues as wide ranging as gun control and healthcare to “claim freedom from federal laws they find onerous or wrongheaded.” Most recently, a growing number of communities—including more than a 100 counties, cities and towns in Virginia—have declared themselves to be Second Amendment sanctuaries and adopted resolutions opposing any “unconstitutional restrictions” on the right to keep and bear arms. It is mass movements such as these that the government fears most.

Indeed, any hope of freeing ourselves rests—as it always has—at the local level, with “we the people.” One of the most important contributions an individual citizen can make is to become actively involved in local community affairs, politics and legal battles. As the adage goes, “Think globally, act locally.”

America was meant to be primarily a system of local governments, which is a far cry from the colossal federal bureaucracy we have today. Yet if our freedoms are to be restored, understanding what is transpiring practically in your own backyard—in one’s home, neighborhood, school district, town council—and taking action at that local level must be the starting point.

Responding to unmet local needs and reacting to injustices is what grassroots activism is all about. Attend local city council meetings, speak up at town hall meetings, organize protests and letter-writing campaigns, employ “militant nonviolent resistance” and civil disobedience, which Martin Luther King Jr. used to great effect through the use of sit-ins, boycotts and marches.

Let’s not take the mistakes, carnage, toxicity and abuse of this past decade into 2020.

As long as we continue to allow callousness, cruelty, meanness, immorality, ignorance, hatred, intolerance, racism, militarism, materialism, meanness and injustice—magnified by an echo chamber of nasty tweets and government-sanctioned brutality—to trump justice, fairness and equality, there can be no hope of prevailing against the police state.

As I make clear in my book Battlefield America: The War on the American People, we could transform this nation if only Americans would work together to harness the power of their discontent and push back against the government’s overreach, excesses and abuse.

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Today in History: Fugitive Slave Act of 1850 Signed into Law

On Sept. 18, 1850 President Millard Fillmore signed the Fugitive Slave Act of 1850 into law, setting the stage for wildly successful nullification efforts by northern states.

The Fugitive Slave Act set up a legal structure to facilitate the capture of runaway slaves and their return to their “owners.” Abolitionists dubbed it “Bloodhound Law.” It significantly expanded the provisions of the Fugitive Slave Act of 1793 and was extremely unpopular in northern states.

The law erased any semblance of due process for an accused runaway slave. A white man could basically drag a black man or woman into slavery on the power of his word. Accused runaways weren’t even allowed to testify in their own defense.

“In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.”

Any person aiding an accused fugitive slave was subject to federal charges that could result in a $1,000 fine (about $30,000 today) or even jail time.

“That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months.”

The law also empowered marshalls “to summon and call to their aid the bystanders” in order to capture and hold an accused fugitive slave. In effect, a federal marshall and their deputies could force anybody into serving as a slave-catcher, even against their will.

Was It Constitutional?

The Fugitive Slave Act of 1850 featured several constitutionally dubious provisions.

Supporters of the act justified it based on  Article IV Sec. 2 Clause 3 of the Constitution.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

On the surface, they appear to stand on solid ground. The Constitution clearly required the return of runaway slaves. But that clause does not override the Bill of Rights — specifically the Fifth Amendment.

The most glaring constitutional problem with the Fugitive Slave Act of 1850 was its denial of due process. A fugitive was to be returned south on the word of any white person. The accused was not even allowed to present evidence in his own defense. Under the Fugitive Slave Act, accused runaway slaves had no recourse. They started under the presumption of guilt, and the process made it impossible to prove otherwise. This clearly violates the Fifth Amendment.

No person shall be…deprived of life, liberty, or property, without due process of law.

Unless you want to argue black people weren’t “persons,” (and this is pretty much what the federal courts ultimately did) an accused fugitive had a right to an actual trial. As it stood, the Fugitive Slave Act stripped all rights from a black person on the mere presumption he was a slave. He was presumed guilty and had no way to prove himself innocent.

There were numerous documented cases of free blacks being captured in the North and drug into slavery under the act.

There were also constitutional issues with a provision in the act that vested commissioners and magistrates with judicial power to issue certificates of removal. It effectively gave them power to judge cases and render verdicts. But The Constitution vests judicial authority “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The fugitive slave act granted judicial power to court-appointed commissioners.

These officers generally handled arrests and bail, and they were not judges. Abolitionists argued they were never intended to wield actually judicial authority and that the Fugitive Slave Act of 1850 violated Art 3 Sec. 1 of the Constitution. While certainly a murkier legal argument than due process, abolitionist lawyers did make a case that the Fugitive Slave Act improperly vested judicial powers in lesser officers.

Resistance

Abolitionists didn’t stop at making legal arguments opposing the Fugitive Slave Act of 1850. Northern states actively worked to undermine enforcement of the act by passing Personal Liberty Laws that prohibited state cooperation with federal agents, punished state officers who served as fugitive slave commissioners and in some cases subjected anybody capturing an accused fugitive to kidnapping charges.

For instance, the Michigan legislature passed its personal liberty law in 1855. The Michigan Personal Freedom Act guaranteed any man or woman claimed as a fugitive slave, “all the benefits of the writ of habeas corpus and of trial by jury.” It also prohibited the use of state or local jails for holding an accused fugitive slave, and made it a crime punishable by a fine of $500 to $1,000. Finally, it made any attempt to send a freedman South into slavery a crime.

Every person who shall wrongfully and maliciously seize, or procure to be seized, any free person entitled to freedom, with intent to have such person held in slavery, shall pay a fine of not less than five hundred nor more than one thousand dollars, and be imprisoned five years in the State Prison.

The prohibition on using state jails for holing accused fugitives created a significant logistical problem for slave catchers as there were no federal prisons at that time.

Vermont also guaranteed jury trials for accused runaway slaves. The legislature passed the Habeas Corpus Law just two months after the enactment of the Fugitive Slave Act. As the Vermont Digger put it, the law “made it nearly impossible to enforce the federal law in Vermont.” The Vermont statute required the state’s attorneys to “use all lawful means to protect, defend, and procure to be discharged” anyone who had been “arrested or claimed as a fugitive slave.” It guaranteed any accused fugitive a habeas corpus hearing before a state judge.  If the judge failed to release the accused, the defendant had the right to a trial by jury, with the state covering the costs.

Vermont passed an even more aggressive law in 1858.  “An Act to Secure Freedom to All Persons Within this State” declared that any slave reaching the state was deemed to be free and that anyone attempting to hold such would be subject to criminal kidnapping charges with a possible sentence of up to 15 years in prison.

Massachusetts Act called for the removal of any state official who aided in the return of runaway slaves and disbarment of attorneys assisting in fugitive slave rendition. Another section authorized impeachment of state judges who accepted federal commissioner positions authorizing them to prosecuted fugitive slaves.

Any person holding any judicial office under the constitution or laws of this Commonwealth, who shall continue, for ten days after the passage of this act, to hold the office of United States commissioner, or any office…which qualifies him to issue any warrant or other process…under the [Fugitive Slave Acts] shall be deemed to have violated good behavior, to have given reason for the loss of public confidence, and furnished sufficient ground either for impeachment or for removal by address.

The Act to Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts also provided criminal penalties for any person who removed a fugitive slave from the state without proving his or her servitude in a state court under the criteria set up by the act – no easy task. And like the Michigan Act, the Massachusetts law did not exempt federal agents.

After passage, there is no record of a fugitive slave ever being returned from Massachusetts.

The Ohio legislature took a slightly different tack. In 1857, it passed An Act to Prevent Kidnapping“Forcibly or fraudulently carrying off” a free black person or mulatto would get you three to eight years of hard labor. Anybody trying to take an escaped slave out of Ohio was subject to the same charges if they failed to go to the proper court and prove “ownership.”

Northern efforts to nullify the Fugitive Slave Act were so successful, several Confederate states specifically mentioned it in their declaration of causes for secession. South Carolina listed northern nullification of fugitive slave laws as its first complaint.

“An increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them.”

There are two important lessons here.

  1. The federal government actively supported slavery. Centralized power was not a friend to African Americans.
  2. State and local resistance can make federal laws nearly impossible to enforce.

The enactment of the Fugitive Slave Act of 1850 was an ugly moment in American history and a travesty for personal liberty. But northern resistance to the act proves that we don’t have to sit idly by when the federal government tramples our rights.

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