Counter-Nullification

Nullification is a treasured and controversial principle in United States’ constitutional law. In our present context nullification means that states can reject or nullify a law passed by Congress that they believe to be unconstitutional. The most furious activity regarding nullification efforts in this country occurred between 1820 and 1860. While many assume that nullification primarily revolved around state’s rights and slavery, there have been movements to nullify tariffs and the disposition of public lands. In fact, the most strenuous and long-lasting nullification efforts were focused on those two now-forgotten raging issues. This has been a thumbnail sketch of the history of formal nullification in the United States. There has existed, however, an informal subversive movement to nullify the Constitution. The most tragic aspect of the movement is that it has been implemented by our elected and appointed officials who have sworn to protect and defend the Constitution of the United States.

Congress has consistently passed laws that defy the Constitution yet in a 58 year period from 1937 to 1995 the Supreme Court of the United did not find any congressional action unconstitutional. Given the plethora of laws and the massive expansion of the federal government during that period, one could assume that there was a conspiracy to undermine the Constitution of the United States between all three branches of government. In essence the failure of congressional restraint, the lack of presidential vetoes and the absence of Supreme Court findings of unconstitutionality suggest an informal nullification of the Constitution by the people who controlled the reins of national power. If only one of the three branches had the wisdom, the reasoning and the courage to stand and defend the Constitution, we may have avoided so many of the troubling issues we face today. Founder and Framer John Adams said, “We have a government of laws and not of men.” That may have been true two and a quarter centuries ago, but for the past century or so men have willfully ignored, distorted or violated the law to pursue their personal whims and preferences. They have and continue to informally nullify our constitutional form of government.

Liberals, conservatives, moderates, progressives and statists have banded together through their votes or non-votes to thwart the dream of the Framers and to violate their oaths of office. Now…we have a nullification movement that is gaining momentum among the people. Using the 9^th and 10^th Amendments to the Constitution as a foundation, these patriots hope to encourage their respective state legislators to reject any and all unconstitutional actions by the federal leviathan. Analysts, constitutional scholars, historians and windbags proclaim that state-initiated nullification efforts are illegal and ill informed. The power elite and their willing sycophants who have abused the Constitution and the rights of the people warn the people that they/we cannot challenge their perfidy by rejecting their unlawful actions. Clearly two wrongs do not make things right, but if the people do not grab the levers of government through their state legislatures and the nullification process, we shall have either tyranny or despotism as our reward for our inaction.

Because our “leaders” and their bureaucratic minions have engaged in their informal “counter-nullification” activities for the past ten or so decades, it seems to me that a counter-counter-nullification effort can be similarly successful if our legislators have the courage and the will to pursue one. If a state refuses to implement a clearly unconstitutional provision handed down by our national “betters,” what are the Feds going to do about it? The rule of law has already been perverted and destroyed by them. Now comes the blowback from their cavalier treatment of the Constitution. The people through their state representatives will refuse to engage in any more unconstitutional activity. If the federal power structure and their toadies attempt to declare nullification by a state an illegal act, let them and let them try to enforce their silly self-serving declaration. In addition we can assume that a state will not stand alone. There will be others that share the desire to stop the federal encroachment on the Constitution and the people.

If the people who have solemnly taken oaths to protect and defend the Constitution of the United States can willy-nilly ignore their oaths and subvert the Constitution, why can’t the people ignore or reject those lawbreakers while honoring and restoring constitutional governance and principles to our respective states? The third of Newton’s laws of motion asserts that “every action is accompanied by a reaction of equal magnitude but opposite direction.” Liberty isn’t physics, but the principle expressed in Newton’s law is appropriate. We must act now while we have the energy and the means to do so. If we linger, the massive federal government will have us surrounded and bound in such a manner that we may be unable to react. The time has come to nullify the counter-nullifiers. “We the People” must be more than mere sentiment.

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Sovereign Impunity

Sovereign immunity is sometimes called “crown immunity.” It has been documented in early English common law. Sovereign immunity is the doctrine that assumes that the monarch or the state cannot commit a legal wrong. It follows, therefore, that state is immune from civil suit or criminal prosecution. Some states have waived immunity to allow for suits, and in other cases some individuals may be charged as a surrogate for the state. In other words, unless it has been expressly permitted, a citizen cannot sue or bring charges against the government. Misfeasance, malfeasance and intentional indifference for the law are not grounds for suing or filing charges against the government or one of its elected officials or appointees. It seems that they have taken that “sovereign” aspect to heart.

Clearly, it would not be wise in these litigious times for every disgruntled citizen to use the courts to bend the political apparatus to her or his will. There are some groups or associations who do that now with some degree of success. The normal citizen, however, is often powerless to require that government follow the law….particularly the Constitution of the United States. As noted above the concept of sovereign immunity was a staple of English common law, but actually it is a power move by rulers to cover their tracks for any stupid or nefarious actions. In essence sovereign immunity is an   institutionalized lack of accountability. The politicians and the bureaucracy make the laws and enforce them, but in many cases they are exempt from obeying those same rules. Even when they are obligated by law or by oath to adhere to the law, they dismiss or ignore it without fear of repercussions because the Congress is afraid to challenge the Executive branch and vice versa.

We find ourselves on the horns of a dilemma. The separation of powers in the Constitution is designed to deny any of the three branches the capacity for running roughshod. Because all three branches ignore the law and exempt themselves from the consequences, we have no viable method for regaining control of our government. They have successfully isolated themselves from the people and from accountability. In a sense all three branches appear to work in cahoots to ensure the exalted status of the political elites. Even when they disagree, they pointedly fail to hold the others responsible. The political class fears the power of the people far more than they dislike one another’s policies. If they are unwilling to hold one another accountable, and if they all benefit from the protection of sovereign immunity, what recourse is available to the people?

We may consider Thomas Jefferson’s observation that a bloody revolution is needed for every generation to be a little over the top and I suspect that the sage of Monticello may have written it with his tongue firmly planted in his cheek. The truth of the matter is that if the THREAT or the potential for revolution had existed, we might have had a better outcome than we are currently experiencing. The breakdown occurred because we have gone too many generations without the prospect of a popular uprising thus allowing the political class to solidify their power, treat the law with contempt and willfully ignore the Constitution. The due diligence role for the people has become past due. To recapture the power for the electorate will require a Herculean effort with an uncertain outcome. Are there enough patriots willing to tackle the entrenched political class for a sustained period? Let’s hope so. The current method of the political elites ignoring the law is the fast track toward tyranny.

If the people successfully reassert their power over the republic, the doctrine of sovereign immunity should be altered. No immunity should protect politicians or bureaucrats from votes or actions that violate their oaths, the law of the land, or the Constitution. Politicians should be immune from disaffected voters lawsuits because of an unpopular vote…if the measure conforms to Constitutional and legal standards. Our public representatives should be held accountable and legally liable if they act beyond the parameters of their oaths, the law and the Constitution. They do not deserve, nor should they have sovereign immunity if they continue to act with imperial impunity.

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