Nullification: 3, Real ID: 0

by Derek Sheriff

In spite of the fact that the Constitution was recently read in its entirety (minus a few sections and amendments), for the first time in the history of the House, several senior Republicans must have either been absent or just weren’t paying attention to what they were hearing. (No) Surprise! 

Less than three months after the historic reading, they were back to business as usual — the business of usurping more power from the states and consolidating it in Washington, DC.  House Judiciary Chairman Lamar Smith (R-Texas), Homeland Security Chairman Peter King (R-N.Y.) and Crime, Terrorism, and Homeland Security Subcommittee Chairman James Sensenbrenner (R-Wisc.) sent a letter to Department of Homeland Security Secretary Janet Napolitano,  demanding she not extend the May 11 deadline for the states to comply with the federal Real ID Act.

In spite of the hysterical warning contained in their letter, the Obama administration wisely decided to do for a third time what the Bush administration was forced to do the first time when many state governments simply refused to comply with the act’s unconstitutional requirements — extend the deadline again.

Anticipating that the Obama administration would again back down to avoid conflict with the states, the letter asserted that the recent arrest of a terrorist suspect in Texas, “..underscores the importance of the immediate implementation of REAL ID.  Any further extension of REAL ID threatens the security of the United States.  We cannot understand how you could even contemplate a further delay – a delay that places American lives at risk.”

Homeland Hypocrisy
The real but greatly exaggerated danger of terrorism is a tried and true method of scaring Americans into giving the federal government a free pass to circumvent the Constitution. But how ironic that this time, one of the GOP chairmen who sent this letter was none other than Homeland Security Chairman Peter King! If you’ve heard how King spent decades raising money for the US-based Irish Northern Aid Committee (NORAID) and speaking at their events, you’ll understand.

NORAID, the US Justice department long suspected, was merely an arm of the Provisional Irish Republican Army (PIRA), and both British and American intelligence reports seem to support that suspicion. In a recent article about King and his involvement with NORAID, investigative journalist William N. Grigg brought to many people’s attention what Ed Maloney, well known for his coverage of the PIRA, wrote in the New York Sun back in 2005:

“During his visits to Ireland, Mr. King would often stay with well-known leaders of the IRA, and he socialized in IRA drinking haunts. At one of such clubs, the Felons, membership was limited to IRA veterans who had served time in jail.”

So the King who demands that Real ID be shoved down our throats to supposedly protect us from Islamist terrorists, is the same King who raised funds for NORAID, which almost certainly went to support another terrorist organization that murdered Americans abroad. The 1983 bombing of Harrods department store in London, was carried out by the PIRA and killed six people and injured 90 others. Among the dead was a 28-year old American named Kenneth Salvesan. And among the injured was another American named Mark McDonald, whose wounds were very severe. Margaret Thatcher wrote to Ronald Reagan immediately after the bombing to demand that he crack down on NORAID, the organization that King supported for so long.

Why States Must Continue to Nullify the Federal Real ID Act
Besides the hypocrisy that usually accompanies homeland security smoke and mirrors, is the fact that nowhere in the Constitution is the federal government authorized to set standards for state driver’s licenses and ID cards. Of course today’s state issued licenses and ID cards didn’t exist when the Constitution was drafted, but both before and after its ratification, the states had the authority to create such documents, since they retained all powers not delegated to the federal government by the Constitution that were not prohibited to them by it (see 10th Amendment). If members of Congress are truly convinced that federal standards for state issued ID cards are necessary for the security of the United States, then they should propose a constitutional amendment. Of course, the vast majority of the people who make up our so called “federal” government have long behaved as if they’d never heard of the Constitution, or what Jefferson called it’s cornerstone — the 10th Amendment.

And what about the enormous costs associated with Real ID? While it’s true these outrageously expensive mandates have again reared their ugly head right at a time when many states face a severe budget crisis (the primary reason given by DHS for the most recent extension). Even if big budget surpluses were the norm among states these days, it would be no excuse for state governments to shirk their duty by submiting to an act of usurpation like Real ID. In spite of the decision many House Republicans have made to indulge in situational constitutionalism (the obnoxious habit of supporting the Constitution only when it is likely to result in a policy outcome one happens to favor), a far greater number of Republicans and Democrats in state governments across the country have chosen a more honorable path — that of state interposition and nullification.

Given that Real ID is both an expensive and unconstitutional act thatthreatens privacy, freedom and federalism, 25 states over the last several years have, according to the Tenth Amendment Center’s legislative tracking page:

“..passed resolutions and binding laws denouncing and refusing to implement the Bush-era law..While the law is still on the books in D.C., its implementation has been ‘delayed’ numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

James Madison, the chief author of both the Constitution and the Bill of Rights wrote in 1798 that when the federal government exercises powers not authorized by the Constitution, the states, “..are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Many state officials have faithfully carried out Madison’s admonition by rendering the Real ID Act null, void and without force within their state’s boundaries.  Now it’s up to us, the people of the several states, to remind them often, between now and the next deadline in January of 2013,  that they need to keep it that way.

Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast “Principles of ‘98″ can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here.

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Nullification In One Lesson

Authors of the Kentucky and Virginia Resolutions of 1798

Note: If you do not find the title of this article presumptuous, it is probably because you are unfamiliar with Henry Hazlitt's classic: Economics in One Lesson. My intention was not to be presumptuous, but rather tongue-in-cheek. However, I want to bring to your attention a new book, that in all seriousness does present nullification in one lesson. New York Times bestselling author, Thomas E. Woods, Jr. has written a new book titled: Nullification: How to Resist Federal Tyranny in the 21st Century




The True Nature of the Union:


Some of today's most brilliant patriots may be mistaken when they assert that the states created the federal government. However, it all depends on what they mean by "the states". If they are using the word "states" as shorthand for the people of the several states, as opposed to the American people in aggregate, then they are correct. If by the term "the states" they mean the legislatures of the several states, then they are incorrect.

"It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations." --Thomas Jefferson to Spencer Roane, 1821."

A New Form of Government: Federalism


Acting in their highest capacity, as sovereign political societies, the people of the several states ratified the US Constitution and gave life to the newly created federal government. The people of the several states, NOT the American people as a whole, acted by, with and through the special ratifying conventions, which they convened in their separate states. In these special conventions, which deliberately bypassed their state legislatures, they delegated a few, carefully defined powers to the federal government. These powers were enumerated in the US Constitution.
They had already delegated numerous and indefinite powers to their state governments, which were enumerated in their respective state constitutions. The majority of powers, however, they retained for themselves, reaffirming the hallowed American tradition of self-government. Although these principles were already contained in the structure of the original Constitution itself, the 9th and 10th Amendments of the Bill of Rights expanded upon and clarified them beyond any reasonable doubt.
In summary, both state and federal governments derive their powers directly from the people of the several states. In ratifying the Constitution, then, they established a system of dual-sovereignty, in which the state governments and federal government are co-equal.
Even before the Constitution was ratified, James Madison reassured the anti-federalist skeptics that this system of dual sovereignty would protect their rights. He wrote:

“Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” (The Federalist # 51).

We must never forget that our state governments are charged with the duty of controlling the federal government. To do so would be to ignore one of the Constitution’s structural protections of liberty.

The 10th Amendment:


Thomas Jefferson considered the 10th Amendment to be the cornerstone of the Constitution. 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 to any
definition."

and

"The true barriers of our liberty in this country are our State governments; and the wisest conservative power ever contrived by man is that of which our Revolution and present government found us possessed."

Usurpation: When the line is crossed

"I have always thought that where the line of demarcation between the powers of the General and the State governments was doubtfully or indistinctly drawn it would be prudent and praiseworthy in both parties never to approach it but under the most urgent necessity." --Thomas Jefferson

When the federal government steps beyond the boundaries that are specifically drawn around it by the Constitution and the Bill of Rights, it isn't abusing powers that it DOES have, it's usurping powers that it DOESN'T have. What should our reaction be to federal usurpation? 

Vote the Bums out?

If a branch of the federal government abuses a power clearly delegated to it by the Constitution, that is, one which can be found among the enumerated powers listed in the articles of the Constitution, then there is a clear remedy:
Change the people who make up the federal government at the time of the next election.
However, if one or more branches of the federal government USURPS a power not delegated to it, that is another situation altogether! If the federal government usurps one of the powers retained by the states or the people (violates the 10th Amendment), then this calls for much more swift and resolute action on the part of the states! In such cases, we must NOT exercise patience and wait to "Vote the bums out" in 2012 or even 2010!

Submission, Revolution, Secession or Nullification? 

When Congress or the President usurps -- that is to say, when either or both of them exercise a power NOT delegated to the federal government by the Constitution, the people of the several states and their representatives in state government have four choices:
1. They can submit to the act of federal usurpation for the time being and wait until the next election, with the hope that they may elect new people to federal government who will discredit and repeal the act of usurpation.
2. They can exercise their right of revolution and and alter or abolish the federal government.
3. They can peacefully withdraw from the Union -- which was created after all, by the people of the several states.
4. Or, they can demand that their state government arrest the progress of federal usurpation by an act of nullification. 

Nullification: 

In 1798, Thomas Jefferson wrote the Kentucky Resolutions in response to the Alien and Sedition Acts, which was one of the federal government's earliest acts of usurpation. It began:

“The several states composing the United States of America are not united on the principle of unlimited submission to their general government”

and

“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, 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”

Nullification is a state's decision to render a particular federal law that it deems unconstitutional void and inoperative, or non-effective, within the boundaries of that state. 

Weighing the Options:
1. Submission:
Advantage: Requires no courage or sacrifice; Avoids confrontation; Ensures federal funding will continue to flow.
Disadvantage: Invites more usurpation; Incremental loss of liberty and state sovereignty; Higher taxes in most cases; Federal funding may become unreliable; Even if we were able to "clean house" and clear Congress of every bad incumbent (unlikely), the new representitives may not keep their promises or might be unable to implement real reform -- Remember the Republican "Contract with America"? Remember Scott Brown's campaign promises? How that working out for you?
Conclusion: Unacceptable option.
2. Revolution:
Advantage: Overturns usurpation and discourages future acts of usurpation.
Disadvantage: Dangerous because it risks more social chaos and economic hardship than minor acts of federal usurpation themselves create; Revolution risks life, property, prosperity and the stability of the social order.
Conclusion: Drastic, irresponsible option for all but the most intolerable acts of usurpation and tyranny.
3. Secession:
Advantage: Defensive; May avoid violent confrontation with the federal government; Prevents future acts of federal usurpation and tyranny; May unleash greater liberty and prosperity; Frees the state from burdensome obligations and dangerous risks tied to the old regime.
Disadvantage: Avoids, or "runs away from" the problem; Too rash a solution for most acts of federal usurpation; Temporary social and economic disruption.
Conclusion: Unwise, rash option for most acts of federal usurpation.
4. Nullification:
Advantage: Avoids all the disadvantages of the other three options; Confronts the federal government in a moderate but firm manner; Enlightens and educates the people of the several states; Preserves the Union AND federalism.
Disadvantage: Requires state legislators who understand federalism and the original meaning of the Constitution.
Conclusion: Nullification is the moderate, constitutional remedy for unconstitutional federal behavior. 

What if the federal government tries to overrule a state's act of nullification?
The two most recent cases of successful nullification involve resistance to the federal REAL ID Act and federal prohibition of medical marijuana. Space does not permit a lengthy treatment of all the states that have nullified federal REAL ID and federal marijuana laws. But whatever your opinion is about these issues, two things should be clear: Nowhere in the Constitution is the federal government authorized to regulate plants that remain within the boundaries of a state or demand that state drivers licenses conform to federal specifications. These are state issues, period. 

So to make a long story short, in both cases, the federal government has backed off. When state governments refuse to cooperate, the feds recognize that they simply do not have the resources or man power to enforce their unconstitutional laws. 

But what if the feds don't back off when states use nullification to neutralize other unconstitutional federal laws, such as intrastate firearms regulation, federally mandated health insurance or Cap and Trade? 

Here's what Michael Boldin, the founder and director of the Tenth Amendment Center, has to say:

"Ultimately, however, nullification is much more than mere rhetoric. To nullify a federal law in practice may require active resistance on the part of the people and their state government.
In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

'That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.'

Here Madison asserts what is implied in nullification laws – that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are 'duty bound to interpose' or stand between the federal government and the people of the state."

In the unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defiance of unconstitutional federal laws, will that state’s government have the courage to hamper or even neutralize such extra-legal measures? 

There are a whole host of peaceful actions that a state government can adopt if that day comes or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s Department of Revenue. 

The sheriffs in this country are indeed the ultimate law enforcement authority in their respective jurisdictions. The sheriff has the power and responsibility to defend his citizens against all enemies – foreign and domestic. Former two term county sheriff Richard Mack has pointed out many times that the sheriff may be America's last hope. 

Doesn't Federal Law Trump State Law?
Yes, but only when the federal law in question is pursuant to one of the federal government's enumerated powers. A federal law or other measure that exceeds the limited powers delegated to the federal government by the Constitution is simply an act of usurpation. In short, it's not a law at all. 

The Principles of '98:
The principles first articulated by Jefferson and Madison in the Kentucky and Virginia Resolutions came to be known over time as "The Principles of '98". They were invoked by many states, north and south, for a variety of issues, all throughout the nineteenth century. These issues involved everything from states' claims of unconstitutional embargoes(1807-1809), conscription for The War of 1812, the Second Bank of the United States (1825), and the Fugitive Slave Act of 1850. 

Today, the Principles of '98 have been rediscovered and are again being invoked to confront everything fromCongressional "Commerce Clause" abuse (CCCA) to Cap and Trade and unconstitutional Legal Tender Laws. 

Here's to the republic, the rights of man and the Principles of '98!

Copyright © 2010 by Derek J. Sheriff. Permission to reprint or reproduce this article in any form is gladly granted provided credit is given and the URL for this blog is linked or mentioned.  

Derek Sheriff is an ex-Green Beret turned liberty activist and the Arizona State Chapter Coordinator for the Tenth Amendment Center.