About the Tenth Amendment and Nullification - An Email From A Friend Challenges My Assumptions

Even a site dedicated to the Tenth Amendment can get it wrong sometimes. As there are multiple authors, it probably was just missed, but an email from a friend makes a very important point. In reference to this link, he writes:

This statement is simply not true — “The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government” —

All the 10th Amendment does is CONFIRM, AFFIRM, STATE, whatever verb you choose that HOWEVER one defines the “scope of federal power,” those powers falling outside that definition are reserved to the states, period, end of story. The 10th Amendment DOES NOT define the scope of federal power; the rest of the Constitution does (or is supposed to do) that. That fact that the rest of the Constitution fails adequately to define the scope of federal power is a testament to the flawed nature of the Constitution, to flawed judicial interpretation, to a flawed Constitution that permits untethered judges to render such incorrect decisions and get away with it, or to some combination of the foregoing. The 10th Amendment is no easy fix to our woes; indeed the glaring contradiction it represents, i.e., it reserves to the states a null set of powers, indicates the problem resides deep inside the Constitution itself, and that is where we have to fix the problem.

My obvious question back is if the problem resides in the Constitution itself, how do we fix the problem? I know of only two ways to do so, although my friend may have something in mind I am unaware of, and it seems a much heavier lift to fix the Constitution than to nullify a federal law.

While I completely agree with my friend about the reason we find ourselves in our current predictament, the argument provided in this diary stands on pretty solid assumptions. There are no illusions it will be easy, but I don’t believe in the word impossible.

His reply to my query was troubling, particularly in reference to lawsuits of the individual mandate (bold emphasis mine) (italic editorials mine). It was also rather funny:

Yes, the problem IS profound and there is no easy fix. That is just the fact.

For nullification to work, however, the states have got to be able to leverage INACTION, which I don’t think they can do with ObamaCare. I will be very surprised, for example, if the courts find the states even have standing to sue over the individual mandate.

Where the national ID card, the 55 mph speed limit or any of a number of Medicaid/SCHIP mandates are concerned, the feds could mandate all day long and all the states had to do is refuse to comply and the mandate would fall unless the feds were prepared to send in federal troops. Instead, the feds used monetary means to squeeze states by the (reference removed by me but you get the drift). The states have it within their power to stop a lot of federal over reach dead in it tracks if only they would stand up to the feds and tell them to take their federal funds and stick them up Uncle Sam’s (reference removed by me – again, I’m sure the reader gets the drift). But the states WON’T stand up to the feds and they won’t give up the funds. The minute the feds threaten to retaliate financially or otherwise, the states fold like a cheap suit, sort of like the Republican Party (now there’s a kick in the….

That is why I say we have turned into a Talk Nation not an Action Nation. All we do is talk, talk, talk, whine, complain, cry and moan, scream, shake our fists and fart in public. If we are serious, we will start taking action. The actions don’t have to be dramatic and certainly violence is not called for. American males are so bloody cowardly anymore. They (we) should take a page from the females in our lives. What is the most effective thing a female does to get her way? NOTHING. Call it passive aggression or whatever you want to call it but it is the kind of leverage girls learn very early to use on boys. We need to become passive aggressive with the feds. Ignore them when they demand you do something. That is what the hinterlands did to Moscow. The Soviet Union did not collapse because the center didn’t hold — it did. The Soviet tyranny collapsed because the hinterlands simply ignored the center and the periphery melted away. Now, the problem is of course that unlike the American male, who has no recourse anymore when their women become passive aggressive, the feds have accumulated enormous power and the minute they threaten to use it, Americans and their state politicians fall right in line.

If people really were fed up (no pun intended) they simply would not purchase insurance and they would refuse to pay the fine. Would states come to their defense, and if so how, when the feds tried to collect the fines or render punishment for refusing to pay? Who knows? Has anyone even thought about how the states could come to the defense of its citizens who individually decide to defy the feds in this regard? See what I mean? Talk, talk, talk.

My friend is happily married and often jokes about how women are the real bosses. As I am also married, I can also attest to the judo of passive aggressive behavior women are so good at utilizing like Kung Fu artists. I think they take a secret class that we are not privy to. Please know there is no sexism involved in my friends response – it’s all tongue and cheek. He is quite enamored of his wife as I am mine. But he does have a point. Why would he and I come to the same conclusion? Girls out there, its time to step up and teach us what you learned all those years ago. I know its a secret society, but your country needs you.

In closing, I received an email today from Darla Darwald of ResistNet that states that women make up a majority of Tea Party ranks. Providence?

While the exchange did not change my mind concerning nullification, and the statement concerning the courts not ruling in our favor on the individual mandate coming from someone of my friend’s stature, I now see the solution will be hard, it will require leadership and perseverance and rests solely within our own hands. The exchange made me realize even more the need to push harder for a non-violent reaction by the people. I read somewhere today that state legislatures around the country are polling at very low levels. Perhaps that is where we need to concentrate. Passive aggressive resistance backed up by real men (and women) in state office willing to defend the rights of residents in their states. It also seems as if my friend is saying it can’t be done because we have lost the will to pull it off – that it’s too hard for us. Maybe he’s right. I hope and pray he is not. Done on a great enough scale, I see no reason this can’t be done. The question remains do we have the political and personal will to see it through? It is here where my friend and I diverge.

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