Understanding Nullification: An Historical Perspective

The Nagging Questions of Nullification?

Many contemporary Americans who initially encounter the concept of nullification, or state interposition pursuant to the 10th Amendment, find themselves intrigued, even tempted to embrace such an empowering prospect without delay. But delay they do, nonetheless. They are checked almost immediately by doubt, confusion, or skepticism – or all of the above. And those who have long studied constitutional history, and who are deeply familiar with nullification in particular, wonder at the hesitant reaction of our fellow Americans. Why, we ask, do others pause upon the cusp of liberty? Why do they withhold their embrace of a concept so pregnant with the promise of freedom? What is it that they do not fully understand, that stands at the root of this perplexing phenomenon?

Sometimes, but seldom, it is the simple fact that they may not understand that they are largely living without freedom in the first place. It’s a sad, but true fact that too many Americans today aren’t even aware of the chains that bind them. If this is the case, it is easy to understand why they reject the assertion that the federal government is not the supreme authority in every case whatsoever; why they refuse to see that there is even anything to be upset about! Something as potentially disruptive as the prospect of nullification to their accustomed routine and comforting way of life, however oppressed or subservient it may be, is not likely to attract their praise or adoration. There would be no reason for it to; they do not yet know they are living as subjects, rather than citizens.

But for those who do realize the true nature of our existential condition, and who likewise are fully aware of the fact that there is indubitably something deeply awry about this modern social and political structure that surrounds us, the cause of hesitation cannot be for lack of knowing that we are not as free as we ought to be. It seems, instead, that while they realize the existence of the chains, what they lack is the insight, both historical and philosophical, to justify to themselves the rationale for breaking those chains with nullification. This sounds absurd, but the truth is, we are civilized creatures, and disposed, as someone once said, to abiding the greatest degree of tyranny and abuse that we can tolerate; we are not quick to revolt against our oppressors. Fair enough, from a certain perspective, but the fact is that we are well beyond the point at which we can justify continuing to live under the kind of despotism being perpetrated by our federal government any longer. Revolt, at this point, is more than justified. We have only to understand why we should undertake that course, and it will become clear that nullification is chief among the proper “how’s” at our disposal.

Firstly, it is indisputable that the federal government has long overreached its constitutional bounds, and it has done so in the most drastic and extreme ways imaginable. This is axiomatic to our taking any action at all, but it is not sufficient to understanding why any particular remedy is the rightful one. For that, our understanding must reach deeper. And the most appropriate place to seek to deepen our understanding of a historical concept, is in the narrative of history itself.

The most common questions generally posed by serious yet skeptical initiates at this point are roughly thus:

“Nullification seems to violate the very order we claim to seek to preserve: the constitutional rule of law. How can we justify granting the states so much power as to declare federal laws unconstitutional? Is that not the inversion of the proper hierarchy, and a perfect formula for injustice gone wild? The Constitution itself lodges responsibility for those judgments in the federal government, and particularly in the Supreme Court, does it not?”

And this would be the common understanding: that the federal Judiciary is designated by the federal Constitution as the sole and final arbiter of federal power and authority. But is this actually the case? Or is it a clear misunderstanding, despite being a common one?
Indeed, it is a misconception. And I hope, in what follows, to elucidate exactly why and how it is so.

In order to begin to comprehend this fact, it is necessary to understand what is meant when we say that the Constitution was a compact, or contractual agreement between the several states, to establish on their collective behalf an ‘agent’ of sorts: a limited federal republic. This simple, short sentence is deceptively packed full of meaning, as will be elaborated presently. But we ought to take the analysis in a logical order, and we have begun already with the question of in whom, or in what institutions, the Constitution lodges the power to undertake constitutional interpretation.

Arbitration of constitutional guidelines is a form of legal analysis of what government can or cannot do. But the analysis of what can or cannot be done by “government” in America is not monolithic and single-stranded; it is at least a two (if not three) part affair, and the key is understanding what “federalism” really means.

Federalism Is Fundamental

The history of federalism as a paradigm of political order is literally ancient, stretching all the way back to the Greek alliances among City-States, and arguably even further. It reached a new level of sophistication in the 1400s and onward, as the European powers of the late Middle Ages and Early Renaissance began to employ it to stabilize the volatile feudal order that had dominated Europe after the fall of Rome.

Federalism developed out of the need to find a way to survive without being either subsumed under the imperial regime of a powerful enemy or, alternatively, destroyed by the violent chaos of perpetually-warring nation-states of roughly equal strength. Many smaller or weaker Principalities and Kingdoms, desiring to maintain their sovereignty and autonomy while yet avoiding senseless, destructive and costly wars between themselves (or conquest by and subjugation to larger, more powerful neighbors) banded together in “foederal” alliances, formalized by contractual charters and compacts, to secure peace and diplomatic deference among themselves and to strengthen their collective resistance to external threats. These had a mixed history of success, and in their details took on many different forms, but all were essentially the same in concept, and over time their chief result was a dual political doctrine that emerged from that era under the moniker of the “ Balance of Power ” and “the Law of Nations .”

This entire philosophy carried over into our own founding, and was key to understanding the original intent of the framers of the Constitution.

“At the root of the federal principle, as then conceived, was the idea of a covenant or ‘foedus’ (its etymological root). This and ‘synonymous ideas of promise, commitment, vowing… ones word’… were joined together with two other things: ‘the idea of cooperation, reciprocity, mutuality,’ and ‘the need for some measure of predictability, expectation, constancy, and reliability in human relations.'”
[Excerpted from “ Peace Pact ,” by David C. Hendrickson].

Specifically, in our own case, this principle took the form of a limited federal government, rather than a national or centralized government, and the heretofore free and sovereign states (nations by their own declaration in 1776, and by right of victory in the Revolutionary War), expected under this Charter to maintain the preponderance of their sovereignty as free and independent political bodies.

One appropriate term to describe this relationship between the states and the federal government they were forming is as one of “ divided sovereignty ,” wherein the rule of law governs all aspects of political life, with the Constitution as the Supreme law, and the delegation of authorities, responsibilities, powers and jurisdictions set forth therein, divided among the federal, state, & local levels of government, all ultimately deriving its justification and legitimacy from the prime sovereignty of free and consenting individuals.

“The federal government created by the Constitution, however, fell short of a ‘full-fledged state,’ or what was called at the time a ‘consolidated’ government. Unlike the state governments, which generally claimed a plenary authority over the lives and liberties of their citizens, the federal government was one of enumerated and limited powers. Supremacy was accorded neither to the federal government nor to the state governments but to the Constitution itself…”
[ ibid ].

In our instance, the motives were much the same as in the instance of the federal republics of the late-Middle Ages. The framers – “Unionists,” as they may be appropriately called – sought a middle course between ‘Scylla and Charybdis’: anarchy and inter-state or inter-sectional strife on the one hand, and on the other, the perils of Empire and consolidated national government. Both, they argued, were very real dangers, and to be avoided if at all possible.

But it’s necessary to note, lastly, that the Constitution, as ratified and understood in its time, was not intended to govern the affairs of the states, except insofar as specific provisions of it refer explicitly to the states. In particular, the Bill of Rights was never intended to apply to the states, and any constitutional interpretation which has it doing so, is demonstrably mistaken. That was one of the fundamental features of the compact, a feature which was deliberately included in order to maintain state sovereignty in all areas where the Constitution did not delegate federal authority. This was a built-in property of the entire document, and the 10th amendment was simply a reiteration of that fundamental principle.

Rediscovering Original Conclusions

In evaluating the appropriate powers of government, one first has to take on the question, ‘Of what level of government are we speaking?’ If we’re speaking of the federal level, the answer is clearly right there in the Constitution, and no further analysis need be done. If, however, we are speaking of a state action, or a state power, it is not so simple. The states, having come to the federal Union as preexisting free and sovereign nation-states, and having reserved for themselves the legal authority to undertake anything not delegated to the federal government by the compact, have essentially no legal limits on their own powers or authorities, except those imposed explicitly by the Constitution, and those imposed by their own state constitutions. Hence, when asking what a state can or cannot do (or more to the point, what a state should or should not do), one cannot simply ask the “legal” question – “is it constitutional ?” – and then stop at that; rather, one has to ask the legal/constitutional question, obtain an affirmative that such power or act is within the scope of the state government in that respect, and then proceed to ask the ethical or practical question: “Does the act or power at issue fall within the legitimate and proper role of government at all? Is it something that any government should attempt to undertake?”

And, with all of that in mind, we can proceed to address the original question: Whether or not the states have the rightful authority to interpret the meaning and application of the Constitution. Of course, “states” don’t “interpret” anything – people do. And the people of the several states – many of them – are, today, largely ignorant of almost all of the points elucidated above. This isn’t the story you get taught in school, it’s not talked about in the media, and our governmental overlords sure won’t let you in on the truth… so how could the people judge, when they don’t even know that the responsibility of making such judgments is theirs? They don’t know, in other words, that they are the government – that there is no one else besides themselves to make those judgments, and that if they delegate that responsibility, the very act of delegating such powers to others is an admission that they possessed the powers in the first place! Americans don’t realize these truths because we don’t know our own history, and that’s just one reason why the dialectic of constitutional questions is so important to us today: the truth really can set you free (even if it does piss you off, first).

The fact is, that in order to see why “We, the People of the several States,” are perfectly in line with the Constitution when we undertake to judge of the constitutionality of the actions and decisions of any branch of the federal government, we need only to open our eyes first to the rationale that gave us our government in the first place. Once we imbibe a sobering dose of that tonic prescribed by our founding physicians, “a frequent recurrence to the fundamental principles of liberty,” it will be evident – dare we say even “self-evident?” – that if our government is truly grounded in republican principles, and is truly a government “of the people, by the people,” then there can be no alternative except to recognize our own responsibility in making such judgments. It is our sovereignty, as free individuals, which gives legitimacy to any power of our system of government, at any level, including the power to undertake constitutional arbitration and interpretation; such powers, then, are therefore ours in primacy, and are only lent to our representatives conditionally. They can, thus, be withdrawn, resumed, or re-delegated at any time by us, the sovereign authorities within this federal republic. In short, the question of whether we, the people, may undertake to judge of the limits and powers of our own federal government is obviously and unequivocally, “Yes!”

Some states have taken this old principle to heart, and given new attention to the powers conferred on them (or rather reserved by themselves) in pursuance of the 10th amendment. And some have taken actions based on that renewed understanding – some stronger and more bold than others. But the more the information is absorbed and understood, and the more our historical narrative is corrected and internalized by ordinary Americans, the more potent we will become in our efforts to restore the constitutional republic and achieve a just and free society again. It really does all come down to what we are willing to put up with, and what we are determined to achieve; as Thomas Paine said, “We have it in our power to begin the world over again”… a sentiment that was echoed when the Eagles told us, “All too often times it happens, that we live our lives in chains, and we never even know we hold the key.”

All too often, indeed.

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Make Hay While the Sun Shines: NC’s Fleeting Opportunity to Prevent UN Agenda 21’s Forced Sustainability Initiative

The Dangers of Benevolent Despotism

What would it take to snuff out the last remaining embers of individual freedom in America?

Without doubt, the assaults on constitutional liberty are legion, so one might be hard pressed to decide where to begin in answering such a question. Alas, however, we might forego the obvious ‘Big Brother’ milestones – Homeland Security, TSA gropers, warrantless wiretaps and “cyber intelligence sharing,” the de facto suspension of habeas corpus and the pending suspension of Posse Comitatus visited upon us by the Military Commissions Act and the 2012 NDAA (and this is by no means an exhaustive list). Just for the sake of keeping matters simple, let’s imagine that all these strong-arm, Orwellian tactics were off the table. What’s the least sinister, most apparently benign objective government could adopt to squelch freedom in this once-proud “Land of the Free?” The answer may surprise you: sustainable development.

Admittedly, there is nothing inherently wrong or unconstitutional about sustainability, per se. In itself, the term simply denotes a manner of living that is in sync with one’s environment and ecology, with a view toward perpetuating a way of life indefinitely. Any rational person would see the common sense in making a personal choice to live sustainably; the alternative, by definition, is suicide, or at best, a self-destructive and impoverished existence. But there is a key word here that must be drawn to the fore in the interests of understanding why government-mandated sustainability is tantamount to the demise of liberty. That word is “choice.”

Therein lays the crux of the issue: voluntary sustainable living is a personal choice – and a laudable one, at that – whereas government mandated sustainability flies in the face of everything that America has ever been about, namely, freedom and creative opportunity. It is coerced living, built on the premise that government bureaucrats and so-called ‘experts’ know what’s best for each of us, and are somehow endowed with the authority to force us all to live within their vision of what our lives should be. And with the noble aim of “sustainability” as their battle flag, they claim license to invade every miniscule facet of our existence with their laws, rules and dictates… all backed, ultimately, by the ever-present dual threat of force of arms and financial penalties for the non-compliant.

The Anatomy of a Global Agenda

The reason such ominous exposition is warranted here is that this is not a hypothetical scenario; there is already a widespread – indeed, world-wide – campaign underway to do precisely that, and the effects of it are already evident across America, and even within North Carolina. There is no theoretical element to this assertion; it is a demonstrable fact, obvious to all who have eyes to see and ears to hear. “Sustainable development” was first formally defined by the Bruntland Commission in 1987, in its UN report entitled, “Our Common Future .” The formal campaign to foster forced sustainability worldwide began in Rio de Janeiro, in 1992, at a United Nations summit known as the “ Earth Summit, ” which was the result of the Bruntland Commission’s recommendations for carrying its plan into action. That meeting of the UN’s Commission on Sustainable Development gave rise by 1994 to a protocol to implement government-coerced “sustainable development” on a global scale over the course of the following decades. The name they gave to this protocol is Agenda 21 , and the seminal Non-Governmental Organization they charged with implementing this protocol in the United States and elsewhere is the International Council for Local Environmental Initiatives, or ICLEI.

The UN Earth Summit was followed almost immediately by the creation in 1993 of the “President’s Council on Sustainable Development,” the product of an Executive Order of then-President Bill Clinton. Of the many dozens of national, state-wide, and local initiatives and organizations that Agenda 21/ICLEI spawned over the succeeding decades which seek to realize the goals of Agenda 21 in America, Clinton’s PCSD is only one spearhead effort. Others include the Congress for the New Urbanism , Cooperative Conservation , the National League of Cities , and America 2050 , and the project has gained the dedicated (if discreet) patronage of more than a handful of charitable trusts and other NGOs, such as the Rockefeller Foundation , the Ford Foundation , the Lincoln Institute of Land Policy , the Surdna Foundation , and AECOM , just to name a few. Most recently, there have been overt moves on the part of the Obama administration to build on the example of President Clinton in creating the “Federal Leadership in Environmental, Energy, and Economic Performance” program, also by Executive Order , in 2009, as well as an open and drastic shift in the policy and mode of operation of the EPA toward an emphasis on sustainability, beginning in 2010 and continuing to date.

Lastly, with respect to North Carolina in particular, there are numerous disturbing indicators that our state is not immune to the onslaught of forced sustainability. One of the leading proponents of this initiative, with a long and rich history of ties to Agenda 21/ICLEI-related organizations around the country (including his own organizations, Sustainable Environment for Quality of Life, or ‘SEQL’ , and the NC Metropolitan Mayors Coalition ), is none other than Pat McCrory. McCrory was recently the winner of the Republican primary election for the State Governor’s race, and formerly the seven-term Mayor of the city of Charlotte. McCrory’s commitment to government-mandated sustainable development is not something he denies; in fact, it’s a track record he seems quite proud of, even if he wouldn’t phrase the situation in quite such stark terminology. But if McCrory attains the Governor’s mansion, he wouldn’t be alone in his crusade to expand statewide the big government tendencies he manifested as Mayor of the Queen City. The philosophy of and commitment to forced sustainability that he brought to his Mayoral career in Charlotte gave rise to a decade of heated debate over such issues as mass transit, resource management, land-use planning, and pollution control, among others. ICLEI minions abound at the municipal and county levels across the state, as well as in Raleigh, and a Governor McCrory would find ample support at all levels for the UN’s ICLEI agenda that he honors. Thus is the pervasiveness of the bureaucratic mechanism that confronts us.

The Methodology of Mother Earth’s Paternalistic Rulers

But what is the game plan of this organizational construct? If the objective of “sustainability” is the common thread that connects the diverse array of elements within it, how is the mission slated to be carried into effect? The answer is fairly simple: break down traditional governmental boundaries in favor of a paradigm of “regional cooperation” of “sustainable city-networks,” thereby diluting the jurisdictional sovereignty of those traditional political entities, and simultaneously shifting the balance of power from elected officials to unaccountable bureaucrats in appointed positions beyond the reach of popular reproach.

While Agenda 21 is clearly being pursued by select traditional governmental bodies and elected officials at all levels, the greatest advances of the program are seen in the discreet transference of power away from elected parliamentary councils, and into the hands of regulatory bodies, NGOs, and local-level executives directing their staffs to form regional cooperatives and alliances that transcend city, county, district and even state boundaries. The effect of this strategy has largely taken the success of the ICLEI program out of the hands of legislatures and placed it in the hands of a select group of self-appointed elite social managers. If this trend is allowed to continue, it will herald the complete obsolescence of our constitutionally-prescribed system of representative government. Elected representatives’ potency over the laws promulgated for their jurisdictions will be eclipsed by this cancer of unconstitutional, unaccountable regional governance, and the people will soon find themselves without a say in the policies that govern their lives. The result is clearly the elimination of almost all of our natural rights, with the greatest damage arguably falling upon property rights.

What, exactly, might such policies consist of? Truth be told, the effects of the ICLEI/Agenda 21 program are virtually limitless. As a way of gaining an insight into the intent of the prime movers behind Agenda 21’s program, consider this now-infamous quote by Maurice Strong , who sat on the Bruntland Commission and the 1992 Earth Summit in Rio, and was the first Executive Director of the United Nations Environment Programme:

“Current lifestyles and consumption patterns of the affluent middle class – involving high meat intake, use of fossil fuels, appliances, air-conditioning, and suburban housing – are not sustainable.”

According to Strong’s way of seeing the matter, Agenda 21 has a legitimate field of influence that encompasses food and agriculture, energy and transportation, consumer goods and commercial manufacturing, and housing and land-use planning; in the interests of “sustainability,” every one of these facets of our lives ought to be regulated and overseen by some form of higher legal authority. But his statement does not offer an exhaustive list of the full range of powers that Agenda 21 intends to touch upon. The text of Agenda 21 does not succinctly and explicitly state what those points of contact are, but in reading the document in full, it becomes apparent that they include, in addition to those noted by Maurice Strong:

• Population management and birth rates
• Natural resource management
• Biodiversity and our relationship with other living species
• Healthcare and ‘public’ health management

In all, the array of concerns which Agenda 21 seeks to influence spans virtually the entire field of our private lives, including how we travel, what we eat, where and in what dwellings we live, what goods and appliances we buy and use, how we run our businesses and conduct economic trade, how many children we ought to have and what options are available to us in childbirth and healthcare. And in all of these areas of our lives, the implicit objective is to mandate our compliance through authoritative force, regardless of how such mandates impact or infringe upon our rights as free individuals. In other words, these are not mere suggestions for our consideration; they are a comprehensive plan for imposing a certain way of life on us regardless of our consent or agreement.

Resistance is Fertile

As dismal as this specter may be, there is a powerful means of halting its advance, and it is imperative that we apply it post haste. That means is offered us by the Tenth Amendment of the United States Constitution, which provides 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.” Thomas Jefferson and James Madison both asserted that state interposition or nullification is the “rightful remedy” for federal abuses of power that transgressed the Constitution, and that in such instances the states are “duty-bound” to pursue such a course. The same principle applies to the transgressions of global government.

In all matters that constitutionally fall within the legitimate sphere of state power, the states have the final say in how those issues will be decided within their respective jurisdictions. There remains, for the time being, sufficient power vested in the representatives of the people of North Carolina to reaffirm the primacy of our constitutional system and prevent the advancing domination of forced sustainability and the arbitrary governance of regionalism.

To be precise, the opportunity for us to act on this objective is now. On May 16th, during the Short Session of the North Carolina General Assembly, Representative Glen Bradley will introduce a Joint Resolution before the NC House. If the resolution passes with two-thirds support of the members present, Assembly rules allow him to introduce follow-up legislation, entitled, “An Act to Provide that North Carolina Shall Not Comply with ICLEI/Agenda 21,” capable of halting the advance of any Agenda 21/ICLEI-related efforts within North Carolina. It is urgent that we make Representative Bradley’s intent widely known, and that the people of North Carolina express to our State Representatives and Senators our adamant support for both his resolution and his bill.

In the discourse above, the sympathetic disposition of Pat McCrory toward the Agenda 21/ICLEI program was touched upon considerably. If McCrory is successful in his campaign for Governor, it may be years before North Carolina has another opportunity to block this dangerous program, and the damage that will likely be done during that time will be extensive, possibly even irreversible. It is not hyperbole to say that this narrow opportunity in the days around May 16th may be our last.

North Carolina faces many threats to liberty from within and without, but if we wish to maintain our sovereignty as a state, and our liberty as citizens, we must act immediately to ensure that Representative Bradley’s bill can be introduced, and that it has the requisite support to pass. The time to speak out is now, or we truly risk being forever silenced.

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