PART 2 of 2
Timothy N. Baldwin, JD.
May 26, 2014
The Founders stated unequivocally, if the States do not like a constitutional provision, effect or even an abuse of the same, their duty is not to ignore the Constitution. Their job is to amend the Constitution under Article V of the Constitution—the method by which the States have authority to change the way the system operates. But Fegley rejects Article V as a useful remedy in the Constitution despite the Founders’ plainly stated purpose of Article V. He claims that nullification is the ONLY means of protecting liberty, stating,
This is why we, as lovers of liberty, must support nullifying for the sake of nullification: there really are no other realistic and reliable means for enforcing the limitations of the Constitution.
This statement is, by the expressed language of the Constitution itself, WRONG! If you are going to claim to be a constitutionalist, you must accept Article V. Too, you cannot use Natural Law as the basis of political action as long as the Constitution is still in force and as long as you are still party to it.
The use of Natural Law is a blaring contradiction for self-identified constitutionalists, however, because you cannot have it both ways: the States cannot use Natural Law as the basis of power to act outside the Constitution (while trying to enforce the Constitution!) but limit the federal government’s actions strictly by the Constitution. Whatever moral basis can be used by the States to pass and enforce laws can also be used by the federal government to pass and enforce laws because both governments derive their power from the same source: the people (“the people are the only legitimate fountain of power,” Madison, Federalist Paper 49).
As a matter of observation, if the States have reached a point of invoking Natural Law as the higher authority to act in an extra- or unconstitutional manner, then why do they, in opposing Article V, insist that the States be bound by whatever the Constitution requires under Article V; or as they say, they would be forever bound by the most tyrannous amendments imaginable with no recourse? Why would the States not use Natural Law to declare their independence from the States that attempted to force such tyranny on them and take other actions sanctioned by Natural Law? Nullification purists ignore this, thus showing that they use Natural Law to advocate their agenda on one hand yet deny the use of Natural Law to oppose an agenda on the other.
After all, if “liberty” is the highest law, then what need is there for a Constitution as the “Supreme Law of the Land”? Why have a union with a central government? If States can nullify, ignore and oppose federal laws at whim, the States do not need a union and can do what they want, when they want and how they want. And what moral or constitutional authority would any other State or government have to stop them? Clearly such a union is no union at all.
3. If States have reached the point of needing Natural Law to defend themselves against the federal government, then nullification is not the remedy they should be advocating.
If States have reached the point of needing to invoke Natural Law as the higher authority of liberty, then under that scenario the American union is beyond the pale of salvation anyway and nullification is fruitless. Political philosophers that shaped Western politics, including the Founders, agreed, once a political body must invoke Natural Law as the basis of their authority to resist the government, then the social compact that formed that political society is dissolved or is on the brink of dissolution.
James Madison explained this well in his letter dated September 1829, relative to the issue of whether State nullification was a constitutional remedy; and if not, what remedies did the States and people have to correct or protect against a usurping federal government. Madison explained (source) the following.
A fundamental error lies in supposing the State Governments to be the parties to the Constitutional compact from which the Govt. of the U. S. results…The real parties to the constl. compact of the U. S. are…the people thereof respectively in their sovereign character, and they alone, so declared in the Resolutions of 98, and so explained in the Report of 99…
As these distinct portions of power were to be exercised by the General Govt. & by the State Govts; by each within limited spheres; and as of course controversies concerning the boundaries of their power wd. happen, it was provided that they should be decided by the Supreme Court of the U. S. so constituted as to be as impartial as it could be made by the mode of appointment & responsibility for the Judges.
Is there then no remedy for usurpations in which the Supreme Ct. of the U. S. concur? Yes: constitutional remedies such as have been found effectual…whilst the responsibility of the Genl. Govt. to its constituents continues:--Remonstrances & instructions--recurring elections & impeachments; amendt. of Const. as provided by itself & exemplified in the 11th article limiting the suability of the States…
Finally should all the constitutional remedies fail, and the usurpations of the Genl. Govt. become so intolerable as absolutely to forbid a longer passive obedience & nonresistance,a resort to the original rights of the parties becomes justifiable; and redress may be sought by shaking off the yoke, as of right, might be done by part of an individual State in a like case; or even by a single citizen, could he effect it, if deprived of rights absolutely essential to his safety & happiness. In the defect of their ability to resist, the individual citizen may seek relief in expatriation or voluntary exile a resort not within the reach of large portions of the community.
Madison lists the following remedies that would allow the union to remain intact: (1) remonstrances and instructions, (2) recurring elections and impeachments, and (3) amending the Constitution. Notably, Madison never mentions state nullification in that list. The remedies Madison lists afterwards are those remedies that lead to dissolution of the union: (1) resort to original rights (i.e. Natural Law), (2) shaking off the yoke by individual States or even by a single citizen, and (3) absent the ability to resist, the individual citizen seeking expatriation or voluntary exile.
Looking at where nullification purists say the nation is on Madison’s scale, it is clear they are invoking Natural Law; and according to Madison, such a remedy leads to the dissolution of the union. Fegley, in fact, states we have reached a point where “[f]ederal courts have proven that they are capable of making the most outlandish arguments in order to expand federal power.” Or to put it as Madison did, the “usurpations of the general government [have] become so intolerable.” But Fegley ignores what Madison says about the effect of invoking Natural Law and ignorantly declares that state nullification will save the union, not dissolve it.
Given the very plain understanding of what Madison explained, Fegley’s following comment appears all the more absurd:
If we are to seriously accept the idea that the Framers of the Constitution constructed a system that would allow nine judges in black robes (or, more accurately, five who agree with one another) to have a monopoly in deciding the most minute details of the lives of over 300 million people, we have to say that the Framers created an oligarchy, not a constitutional republic
Fegley clearly does not like what the Constitution created in the federal judiciary and calls this an oligarchy (in fact, Patrick Henry called the Constitution an oligarchical and monarchical constitution—I suppose Fegley chooses to ignore Henry’s assessment and believes the Constitution is something perhaps it never was). Yet the truth is,the Constitution DID establish a federal judiciary to determine controversies involving the Constitution and the State and federal governments. James Madison explained the federal judiciary’s authority in Federalist Paper 39, stating,
It is true that in controversies relating to the boundary between the two jurisdictions [between state and federal], the tribunal which is ultimately to decide, is to be established under the general government…[S]uch tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact.
Clearly implicated in the Constitution’s principles is that when the United States Supreme Court no longer protects the boundaries of state and federal sovereignty, the States’ remedies filter into the following fundamental actions, as Madison explained: 1) Article V Convention, 2) Constitutional Convention (presumably to dissolve the compact and form another), or 3) revolution.
The Founders all agreed that the States must use the convention remedies before dissolving the union and revolting—obviously to avoid violence. Yet, nullification purists completely ignore this and insist that nullification is the only remedy the States have (regardless of constitutionality), and claim that whoever denies nullification is suspect of being liberty’s enemy. Nonsense!
In fact, to avoid needing Natural Law to defend against federal encroachment, the States’ are duty-bound to first apply for an Article V convention. If that does not work, then they would be duty-bound to call a Constitutional Convention. If that does not work, then the following may be inevitable as Hamilton expressed:
[A]s to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because it could not perform impossibilities. (Federalist Paper 16).
Simply stated, “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” -James Madison, Federalist Paper 39.
Nullification purists have revealed where they stand. They believe that the Constitution does not form the basis of the political action they desire. Rather, Natural Law does. Yet, they refuse to understand the political and historical significance of this supposition. If the necessity of invoking Natural Law is real, then they should change their titles from constitutionalists to revolutionists because every revolution in the history of mankind began by invoking, not the “written law of the land,” but Natural Law. This is what nullification purists are doing now; yet they are supposedly trying to “restore” the very thing that is causing the demise they decry, not realizing that nullification is the incorrect method of such restoration but is the means of dissolving the union.
Madison explained that the States would have three basic options to correct or protect against a usurping federal government once the Supreme Court no longer protects the boundaries of state sovereignty: 1) Article V Convention, 2) Constitutional Convention and 3) Revolution. Which of these destinations do nullification purists prefer? Which of these destinations is most prudent? And which of these remedies are nullification purists encouraging? For part one click below.
� 2014 Timothy N. Baldwin, JD - All Rights Reserved.
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com