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Saturday, January 25, 2014

Wall Street Journal Takes Notice: Nullification "Trend Is Spreading"

Written by  Joe Wolverton, II, J.D.

Although some self-described “conservatives” now claim that nullification is unconstitutional, others view nullification as a proper and constitutional approach for checking federal overreach and are working to apply this approach through state legislatures. Taking notice, the Wall Street Journal published an article on its website sketching the various efforts across the country to nullify unconstitutional acts of the federal government.

As the Journal article reports, state legislators in California, South Carolina, Tennessee, Georgia, West Virginia, Oklahoma, Missouri, and Indiana are stepping up and stopping the enforcement of various federal acts within the borders of their states.

The “trend,” the author writes, is “spreading.” It would need to, to match the spread of the federal kraken’s tentacles into every aspect of life and into every fundamental liberty guaranteed by the Constitution.

Specifically mentioned in the Wall Street Journal piece are federal attempts to regulate firearm possession, to build National Security Agency (NSA) listening posts in several states, and to force Americans regardless of ability or desire to purchase an approved health insurance plan.

Regarding this last overreach, the Wall Street Journal reports, “Conservative lawmakers in at least seven states have proposed laws that would prohibit state agencies and officials from helping the federal government implement the federal healthcare law and would authorize the state’s attorney general to sue violators.”

In “clarification” of its article on nullification, the Wall Street Journal notes:
An earlier version of this post stated that such state laws seem to implicate the U.S. constitution’s Supremacy Clause, which says that federal law trumps state law when the two conflict. Rather, such laws might be allowed under Supreme Court rulings that, with some exceptions, prevent Congress from compelling state officials to execute federal law.

That update corrected half of the mistake, but revealed another error.
First, let’s dismiss this recurring and ridiculous idea that somehow any federal law “trumps state law when the two conflict.”

The “Supremacy Clause” (as some wrongly call it) of Article VI does not declare that federal laws are the supreme law of the land without qualification. What it says is that the Constitution "and laws of the United States made in pursuance thereof" are the supreme law of the land.

Read that again: “in pursuance thereof,” not in violation thereof. If an act of Congress is not permissible under any enumerated power given to it in the Constitution, it was not made in pursuance of the Constitution and therefore not only is not the supreme law of the land, it is not the law at all.

If only every journalist, every talk show host, and every state legislator could understand this simple fact: Whenever the federal government passes any measure not provided for in the limited roster of its enumerated powers, those acts are not awarded any sort of supremacy. In that case, they are “merely acts of usurpation” and do not qualify as the supreme law of the land. In fact, acts of Congress are the supreme law of the land only if they are made in pursuance of its constitutional powers, not in defiance of that authority. FINISH READING