Contributed by “The Ed”
When my daughter was 18 and in an apartment for the first time, it was mid August and the A/C leaked water onto the carpet. Rather than fix the problem, the apartment maintenance just shut the A/C off. In October as the weather got cold the apartment got cold as well because shutting off the A/C also shut off the heat. I moved my daughter out of that apartment to another. The manager confronted her saying that she owed rent for the rest of the year. I intervened. I informed him that even though I cosigned the lease, he would get nothing from me. The contract was broken when management simply shut the A/C off instead of fixing it. The remedy for my daughter was to walk away from the broken contract.
Today the United States is a country where all three branches of government are acting in ways that are both extra-constitutional and unconstitutional. The federal government has, in effect, broken the contract.
The 1803 case Marbury v. Madison established the Supreme Court as the final arbiter for whether something is constitutional or not. The non-partisan courts were supposed to be the protection against a legislative body or an executive branch that has gone outside the Constitution.
The judges in federal courts are not always non-partisan. Since they are appointees of the federal administrations, there is an inherent conflict of interest. What are our remedies? For that we have to look back into history, specifically to the 1798 Alien and Sedition Acts.
The Alien and Sedition Acts increased the residency needed for U.S. citizenship from 5 to 14 years, authorized the president to imprison or deport aliens he considered dangerous, and made it illegal to write or utter anything critical of the government. These acts were passed by the Federalist Party-controlled Congress and signed into law by Federalist President John Adams, ostensibly as measures needed to avoid or prosecute an impending war against revolution-rocked France. However, the only people ever charged or imprisoned under the provisions of the Acts were political opponents of the Federalist Party.
Thomas Jefferson and James Madison authored two resolutions in Kentucky and Virginia, respectively. The resolutions opposed the Alien and Sedition Acts as unconstitutional.
Madison’s Virginia Resolution said that by enacting the Alien and Sedition Acts, Congress was exercising “a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto,” referring to the First Amendment.
Jefferson’s Kentucky Resolutions went further than Madison, stating: “[T]he several states who formed … [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.”
The abuse of power by the Alien and Sedition Acts, and the principled opposition from Jefferson’s and Madison’s resolutions, helped unify the Republican Party and rally voters to sweep out many Federalists and bring in Republican control of Congress and the Presidency in the 1800 elections.
The Acts had sunset clauses designed to expire when John Adams left office, if not renewed. Even though the acts were clearly designed to favor the party in power by criminalizing opposing political speech, upon taking office Thomas Jefferson made it clear he would not sign a law that authorized their continuance, and they expired in 1801.
But let’s go back and examine the earlier Virginia and Kentucky Resolutions a bit closer. The difference between the position of Madison and Jefferson was that Madison was saying when the federal government acts unconstitutionally the state has the right to name it so. Jefferson said that the state not only had the right to name it so, the state also had the right to act accordingly. In the case of the Alien and Sedition Acts Jefferson argued that the state of Kentucky and the other states are sovereign entities in the Constitution. When the federal government passes a law that is outside the bounds of the Constitution, the states have the right to ignore the law as if it did not exist. This became known as nullification.
Many who read this will be alarmed. They’ll say it means that the states can pick and choose what federal laws they want to enforce, and that clever politicians in the states can find a way for the Constitution to justify their position no matter what it is. This is true. The reader’s alarm is reasonable. But let’s at least acknowledge together that in modern America the status quo is just as alarming, if not more.
Look at the Supreme Court’s decision that deemed the Affordable Care Act’s individual mandate constitutional. The court was divided 4 to 4 on party lines with each side finding words in the Constitution to justify their opposite positions. The deciding vote, Chief Justice John Roberts, literally rewrote the law making the fine a tax and declaring, “if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause.” Thus Roberts ruled the federal government can levy the fine as a tax. But resurrecting the message of the Kentucky Resolution, while the federal government can interpret the Constitution any way it wants, the states are sovereign under the Constitution and can apply their interpretation of the Constitution too.
What should really alarm the reader are the laws that could precipitate this action. Look at the major legislative acts passed in the last 20 years. The Affordable Care Act, the Troubled Asset Relief Program, Dodd-Frank, the Homeland Security Act, and the Patriot Act are just a few of the questionable laws passed. Our current president, impatient with the Congress’ slowness to pass the legislation he wants, has declared that he will act on his own. The Supreme Court justices have declared by their actions that their rulings will be influenced by partisan politics. With all three federal branches not following the Constitution, what are the states to do?
This article does not propose nullification as a golden solution to the unconstitutional actions of the federal government. It is written merely to remind the reader that all three branches of the federal government are out of control and acting unconstitutionally. The solution to the unmoored federal government is going to come from states that act bravely and individually under the auspices of the tenth amendment.