Nullification - The Only Way Forward

These days we hear a great deal of talk about “taking the party back”, repeal of ObamaCare, lawsuits and other various strategies to reverse the tide of the fiscal disaster heading our way. When one considers the measure of the success of any strategy is its efficacy in getting the results you want, then any explanation describing why all of the current strategies are doomed to failure and, by extension, why our very Republic now hangs in the balance, are not difficult to make.

Recently we lost the fight against ObamaCare. There are many reasons for this, but two stand out against the others. First, the GOP never had any intention of stopping ObamaCare and secondly, many did not understand the contrast between leveraged and blanket pressure. In this Politico article, Dr. Larry Hunter, President of the Social Security Institute and Lewis Uhler, President of the National Tax Limitation Committee, explain how their two organizations along with Gun Owners of America and the now-defunct Tea Party Support – which included yours truly – joined together in a monumental attempt to utilize leveraged pressure to shake the GOP out of its slumber and expose their duplicity. It is a worthy read as it explains just how the GOP let us down by selling us out and the effectiveness of leverage pressure in getting things done. A press release of the efficacy of this campaign is here.

The Tea Parties just completed the 2 million strong march on DC the previous month and then…nothing. Beltway insiders informed all of us that Democrat staffers who only a few weeks earlier during the march were wringing their hands in anxiety suddenly felt the pressure melt away. It’s hard to keep up a blanket pressure campaign and when the party went home, the party, quite literally, went home. When we attempted to inform Tea Party leaders that most Senators were in their home states for a good chunk of the week and that continuing a campaign of pressure was paramount, our appeals were met mostly with silence.

Leveraged pressure’s advantage over typical blanket pressure approaches is clear. You get more results with less effort if you know the what, when and where of your campaign. It is opportunistic in nature. That is not to say that blanket pressure – marches, fax and email blasts, and town-halls – are not effective, but only that they must be complemented with leveraged pressure and must themselves continue to be sustained if they are to be effective long-term. In the end, both approaches failed to stop ObamaCare. While our campaign ultimately pulled in Rush Limbaugh and Erick Erickson of Redstate into the fray, the very fact the GOP strategy to allow ObamaCare to pass in order to increase mid-term gains was a treachery to great to overcome.

Two lessons came from this. One, counting on the GOP to be your ally is risky business indeed. Two, by targeting the legislative branch of the federal government everyone was missing the real target – the legislators and governors of the states. Dr. Larry Hunter’s expansive and lengthy exposure to the political class in DC provides the opportunity for an education in and of itself. The man who served as President Ronald Reagan’s policy advisor and helped author part of the Contract With America has much to say about the ruling elites:

What do Harlem Globetrotters basketball, professional wrestling and American politics all have in common? They are FAKES…

…The proof of this assertion is unambiguously clear: Government in the United States continues relentlessly to get bigger, more intrusive and oppressive no matter which political party is in control, no matter for how long. Yes, each party proceeds at a different pace and by different routes but they all herd us to the same destination nonetheless, confirming Thomas Jefferson’s observation that, “The natural tendency of things is for government to gain ground and for liberty to yield.”…

…By all means my fellow Americans, go to the polls in November and vote out the bums who are most aggressively subverting our free-market republic and transforming it into Democratic Fascism, i.e., Democrats. But just know when you do, the people you replace them with, Republicans, are themselves subverting the American free-market republic by offering nothing but Socialism Lite as an alternative.

So many scoundrels; so few alternatives…

…Perhaps not in this election nor even in the presidential election to follow but soon the American people will come to understand a very sad and frightening fact about the United States today: Elections no longer work to divert the nation’s decent into the soft despotism of democratic fascism; they simply perpetuate the fraud of two parties, one Establishment, democratic in appearance, increasingly fascist in operation.

These words paint a clear picture of the blight that inflicts us today. The disease is Statism – the practice or doctrine of a strong centralized government with ultimate authority over the people it governs. Today, the meme of federal supremacy is so entrenched in our culture that most people never think to question it. Yet it is not what our Founder’s intended, for it is clear that:

  1. The Constitution was not ratified by popular referendum, it was ratified by individual conventions in the thirteen sovereign states. This clearly indicates the Founders did not intend for a strong federal government to lord over the states.
  2. Our Founding Fathers were not fools. After the War of Independence they looked to the primary cause of abusive power in Britain and found the root of the problem lay with how the British government was structured. As British sovereignty resided in the body of the Parliament and not the people or any other entity, it became easy for a few to nurture an atmosphere of tyranny that ultimately lead to conditions that acted as catalysts for armed rebellion. Our Founders never intended for a small country off the coast of France to be replaced by a city within our own borders. The sovereignty of our country now resides, for all intensive purposes, in Washington DC. Such a transformation of original intent would be seen as a blight to those who Founded this country and spilled blood to secure our liberty

As stated in the post Nullification – The Book, Thomas Woods states in his new book Nullification: How to Resist Federal Tyranny in the 21st Century:

The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. A constitution is, after all, only a piece of paper. It cannot enforce itself. Check and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people.

Looking back, it is clear the hijacking and usurpation of the Constitution’s original intent to limit the scope of federal power is a testament to some very flawed judicial interpretation by untethered judges to render glaringly inept interpretations with little or no consequence that drew power away from the states and displaced it to an increasingly bloated and tyrannical federal government.

As is clear now, our Founders never intended the Supreme Court of the United States to be the final arbiter of the Constitution. Since the Supreme Court is itself a branch of the federal government, it makes sense to ask the same question Mr. Woods asks in his book Nullification:

How can the people be expected to consider [the federal judiciary] impartial arbiters?

The circuitous logic displays its absurdity when one considers that in a dispute between the states and the federal government, the resolution is to come from…the federal government? This is the very definition of “conflict of interest”.

So this is where we now find ourselves:

  1. The result of a long train of federal judiciary abuses, starting principally with the Marshall Court in the early 1800s, is the complete distortion of the original intent of the Founders. The intervening years witnessed a transformation of the very concepts of liberty and freedom that transposed authority from a empowered citizenry to a tyrannical, arrogant, and out of touch political class. Read The Constitution: A Politically-Incorrect Guide for an excellent introduction to this topic and the book The Politically Incorrect Guide(tm) to the Constitution (Politically Incorrect Guides).
  2. So often we hear of taking back the party. I think the case is strongly made above that such a tactic is faith-based at best. If Statism is the disease, how is replacing one federal legislator with another going to address the problem? First, we must consider the question of just how long such a tactic will take before its efficacy can be determined. Second, we must ask ourselves if there is any historical point of reference that such an approach will work. Time is not on our side. With the CBO estimating that Obama is on-track to record deficits how are we to reign in federal spending when the federal government has never reversed the growth of government?. What is so different this time?
  3. Assume for a moment that “our type of politician” fills the halls of Congress. I’ll see your dream and raise you yet another – we take back both the House and the Senate in 2010. If Statism is the disease then it will be necessary to overturn over 200 years of Supreme Court rulings that defined the Commerce Clause, the Supremacy Clause, and a host of other Constitutional nuggets that strengthened the federal government at our expense. Just how do we intend to do that? Constitutional amendments? Good luck with that. A Constitutional Convention? Good luck with that. How about finally realizing the states are the final arbiters and just nullify an unconstitutional law? It’s been done before and by God it can be done again. It is myopic to believe that we, as a country, are unable to grasp the original intent of our Founders and unable to figure out a way to address the issue of Statism when the solution is staring us in the face. It quite literally insults our intelligence.
  4. Using an analogy, think of taking back the GOP from the ground up. From local all the way to national positions, we fill the entire country with “our type of folk”. Think of it like chess. If you replace the queen on a chessboard with a checker and continue to play by the rules of chess, what really have you accomplished other than changing the appearance of the most powerful piece on the board? I want to replace the queen with a checker and change the rules of the game to the rules of checkers. Change the game and the players – not just the players. Put well-meaning politicians into a position of federal power while still allowing for the rules of the Statist culture and I can assure you that, as is always the case, government will still continue to grow. The pace may be slower, the result the same.
  5. In any forging of a strategy, it is imperative to get inside the enemies’ head. If we do this, a few very useful pieces of information are readily apparent. First, so-called progressives are nothing if not patient. Given them an inch and they will take a mile even if doing so spans any number of decades. From the Great Society to modern times, the slow creep to Socialism continues unchallenged except in rhetoric. The other useful piece of information concerns the idea of risk. If your strategy carries no risk, your opponent quickly senses either your inability or unwillingness to pursue your goal. This gives them great comfort. I see no risk in the action of taking back the party. I see the result clearly as already indicated. However, the risk of nullification is much higher, but if pursued with single-mindedness and resolve will provide the greatest benefit and send a very strong signal to so-called progressives that we are rather serious about our grievances. Just like life, the greater the risk, the greater the reward. Sure we can fail, but failure is all but guaranteed for any approach that does proclaim its main objective to be the quick and decisive defeat of Statism. We have nothing to lose and everything to gain. If you question this conclusion, just ask Martin Luther King, Jr. and Gandhi how well it worked for them.

Consider the following scenario. Democrats lose the mid-terms and rather than adjourn sine die until the following Congress is seated next year, they decide to return and pass cap-and-trade and anything else that tickles their fancy just to stick it to the American people for voting them out. Sound arrogant? Tyrannical? Trite? Does is strike you as so childish and outlandish that you believe it could never happen? If you answered yes, you would be wrong:

The Politico‘s Mike Allen puts this in his morning newsletter:

EXCLUSIVE: Phil Schiliro, the White House congressional liaison, has told the Senate to aim to take up an energy bill the week of July 12, after the July 4 break (and after the scheduled final passage of Wall Street reform). Kagan confirmation will follow, ahead of the summer break, scheduled to begin Aug. 9. The plan is to conference the new Senate bill with the already-passed House bill IN A LAME-DUCK SESSION AFTER THE ELECTION, so House members don’t have to take another tough vote ahead of midterms.

Every Republican challenger ought to be demanding that their Democrat incumbent opponent pledge in writing that they will not pass an energy bill in a lame-duck session if they are defeated. When the people make their opinion clear, fundamental concepts of accountability and responsibility require that the opinion not be ignored.

Lame-duck sessions are not designed to be shortcuts to ignore the will of the people and erase any sense of legislative culpability.

Head count time. How many believe a letter will do the trick? How many believe the Democrats in the current Congress are worried about a “sense of legislative culpability”? How many believe that a super-majority will exist in the Senate to over-ride a Presidential veto if the next Congress attempts to repeal any legislation passed during a lame duck session or, for that matter, repeal ObamaCare? By 2012 these programs will have taken on a life of their own. In politics, legislation such as cap-and-trade and ObamaCare carry great momentum and inertia. The longer you wait to reverse or stop them, the harder the task.

The solution is simple. As many states that can nullify the law should nullify the law. Failure to do so while placing your fate and the fate of the Republic in the hands of lawyers, federal judges and federal politicians is the equivalent to clicking your heels together and wising you were elsewhere. We’re not in Kansas anymore Toto. Remember the rule of risk.

So there it is, for what it’s worth. Take or leave it. Great deeds are accomplished by those who take risks. When Neville Chamberlain appeased Hitler, his lack of interest in risk taking lead to the death of 80 million people in World War II. Many men and women died in that war to push back the armies of Fascism. They took a risk. Those who fought in the War of Independence took a risk and look what they accomplished. We live – for now – in the greatest country on Earth. It is now our turn to take a risk. It is our duty to learn about nullification, how to implement it, how to use it, when to use, and where to apply the pressure to ensure it gets used. Turn your attention to your state legislators and governors. Pressure your state leaders to nullify federal laws and stand by them shoulder to shoulder when they do. Know the types of actions the federal government can and will take when they suddenly notice their hold on power challenged. Know there is strength in numbers and coordinate with other states. The more the merrier. Visit the Tenth Amendment Center, read the posts on this site, visit the state sovereignty section at the Social Security Institute and read the book Nullification: How to Resist Federal Tyranny in the 21st Century.

If your state legislators and/or governors don’t seem interested and your state allows it, then start a recall petition. If it does not, take action to ensure passage of such legislation and use that as leverage for political support in future elections.

Many believe that now is not the time to take on ObamaCare. I agree to a point. The belief that ObamaCare is the wrong fight to pick for a Federalism battle is partly true in my opinion. It should not be the first fight. Should Congress decide to take up the mantle of arrogance and childlike retribution by passing cap-and-trade or other controversial legislation during this year’s lame duck session after the 2010 elections, the anger in the country would be so palpable that nullification would become a household word. Once the country sees nullification work once or twice, then the war is on. If enough states coordinate their efforts, even ObamaCare is within our reach. The Democrats seem to be on to this a bit, which is why the cap-and-trade bill is under consideration for passage during the lame duck congressional session in the first place. Without cap-and-trade, the EPA will attempt to regulate CO2 – a move that is blatantly unconstitutional. Many believe the EPA is the right battle on which to defend Federalism via nullification and the Democrats know it. Read in particular The EPA Can Go To Hell, and I Will Go To Texas. As Dr. Hunter put it:

That doesn’t mean Federalism will “win” in the normal course of events, but like Lexington it could be the shot heard round the country.

So where does that leave us?

Get involved with your local Tea Party. If they don’t seem interested, peruse the Tenth Amendment Center (TAC) and find our if a local TAC chapter exists in your area. If it does not, then sign up to start one. Spread the word, educate yourself and others, and look for opportunities where passions run high, for it is here where the idea of nullification ripens. It is a tasty fruit indeed.

Don’t support a third party. For now vote for the best conservative candidate but do not place your future in the hands of any DC politician until the death of Statism is confirmed by reliable sources. Go ahead and attempt to take the party back because one day, when their power is diminished, we will want those very people as our representatives in Washington.

We have reached a turning point in the history of this country. It is not the first time and it won’t be the last. Past crisis required decisive and risky actions to realize results and this time is no different – with one very notable exception.

It is now we who are being called.

We now stand on a hill surrounded by arrogant and tyrannical leaders, our backs to each other. It is the hill this Republic will live or die on. The decision is yours to make.