Feb 272011

An Open Letter to State Legislators:

Most of us learned in school about checks and balances between the branches of the Federal government, such as a presidential veto of a bill in Congress, or Congress overriding a veto. But what should be done if any of the branches of the federal government impose unconstitutional laws or mandates on your State, such as forcing us to buy health insurance, or taking over private pensions or 401K plans? Are you willing to enforce the 10th Amendment to the U.S. Constitution to nullify those mandates?
     Nullification is a resolution by a state that it will not comply with any unconstitutional Federal law or mandate. It is not about overthrowing Constitutional order, it is about operating within it, to enforce the Constitution. It also has the advantage of avoiding lawsuits and U.S. Supreme Court intervention. Contrary to what you may have been taught in law school, the Supreme Court is not the final arbiter on Constitutional issues. Thomas Jefferson said that if the Federal government had a monopoly on Constitutional interpretation, it would naturally read the Constitution in it’s own favor. He insisted that the States were entitled to make ultimate Constitutional determinations, because the alternative was a central government monopoly that would “swallow up the States”. His Kentucky Resolutions of 1798 and 1799 are about nullification. This is not a new concept.
     It is important to keep in mind that the U.S. Constitution provides for a Federal government of sovereign States, not a national form of government, as evidenced in the ratification debates. The 10th Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The Federal government’s powers are limited to those few enumerated in the Constitution, mostly in Article 1, Section 8.
     There are several clauses in the Constitution frequently used to try to justify an unconstitutional law or mandate. The “general welfare” clause in Article 1 Section 8 is not an unlimited power because a list of specific powers delegated to Congress does not give general power to do whatever it wants. James Madison said that is like saying that Congress can do A, B, and C, plus whatever it wants.
     The “commerce clause” was intended to regulate trade between States only, it has no Constitutional control over activities within State borders. Commerce was mentioned 63 times in the Federalist papers at the time of the ratification of our Constitution. The intent was well known by our Founding Fathers.
     The “necessary and proper” clause is only for carrying out delegated Constitutional powers, nothing else.
     The “supremacy” clause in Article 6 is only for laws and treaties that are Constitutional, it does not mean that the Federal government can make laws to trump any other law.
     The President’s Executive Orders and Signing Statements are also for Constitutional objectives only, to carry out existing laws, not to rewrite laws or create new laws.
     For more information and sample legislation, please go to tenthamendmentcenter.com.

      Pat Miketinac 
      Brooksville FL

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