Bryan Hyde is a news commentator and co-host of the Perspectives morning show on Fox News 1450 AM 93.1 FM. The opinions stated in this article are his and not those of St. George News.
OPINION – The current court battle over health care represents just the tip of the iceberg in a looming clash over the balance of federal and state powers. Other sticking points include, but are not limited to, education, the REAL ID Act, the National Defense Authorization Act with its indefinite detention language, public land use issues, firearms laws, sound money, and medical marijuana.
At the heart of each these conflicts lies the question of whether there are limits to what the federal government can compel the states to do. The presumption that only the central government knows best impacts the states in many different ways. Unfunded federal mandates impose huge regulatory costs on states, counties and municipalities. The federal government confiscates money from the states in the form of taxes and then offers to return it upon strict conditions of obedience.
But are the states expected to passively submit to every federal mandate or do they have greater say in how they are governed? Who is the final judge of the limits of federal government power? If the federal government can make up new powers for itself with the approval of its judiciary, can it honestly be said that any meaningful limits exist? More and more states are asking how they can protect their citizens from what they see as abusive federal policies.
Apologists for unrestrained federal power often point to a phrase found in Article 6 of the Constitution which reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” This is what is referred to as the “Supremacy Clause” although the words that qualify that particular supremacy are, “which shall be made in Pursuance thereof.”
Put in the simplest possible terms, all laws made in pursuance of the Constitution, or plainly enumerated in the document itself, are supreme, state laws notwithstanding. In other words, the supremacy referenced extends only to those federal powers listed clearly in the Constitution.
If there are fixed limits to the exercise of federal power, how can the states effectively nullify the consequences of current federal power grabs? The answer isn’t found in court battles, armed conflict, electing a particular politician or making Bambi eyes at federal officials.
All the states need to do is invoke the power of the word “no.”
Étienne de La Boétie’s discourse on Voluntary Servitude, written in 1552, contains an effective, peaceful formula for thwarting the exercise of dictatorial power. His solution: simply withdraw consent and, without support, the tyrant will topple like the Colossus of old. When this withdrawal of consent occurs as an official act of a state interposing itself between the federal government and its citizens, we call it nullification.
Both Jefferson and Madison embraced the concept of nullification when they respectively drafted the Kentucky and Virginia Resolutions of 1798 as a means of checking runaway federal power in the event the federal government refused to abide by its constitutional restraints. Another example would be how fugitive slave laws were nullified by abolitionist states that refused to enforce them. But decentralization of power doesn’t sit well with everyone.
Opponents of nullification will often try to equate it with criminal rebellion by using terms like “insurrection” or “sedition” or “secession.” They predict a climate of anarchy and racism that would surely prevail if any of the dictates of an infallible central government were to be challenged by the states. According to the commissars of official acceptable opinion, the states are expected to show uniform obedience and submission to the federal government they created. Thankfully, historian Thomas E. Woods provides solid answers to their most common objections to nullification.
In his classic essay “The Law,” Frederic Bastiat observed that “democracy” looks a great deal like socialism when it consists of government-sponsored uniformity. This principle is worth considering, whether the issue at hand is socialized healthcare or anything else.
Nullification is simply the withholding of consent from a given federal policy that negatively impacts the state. Derek Sheriff offers this concise explanation, “It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.”
All that is required to restore the proper balance between state and federal powers are state legislators and a governor willing to make a stand for their citizens.
Copyright 2012 St. George News.