Dear Sen. David C. Long,
My name is KrisAnne Hall. I am a Constitutional attorney, author, and educator. I am writing to you at the request of your constituents.
I have reviewed your letter January 31, 2013 in opposition to SB 230 and its efforts to nullify Obamacare. I understand your position regarding Article 5 conventions. However, nullification is not unconstitutional and nullification and Article 5 conventions are not mutually exclusive.
The drafters of our Constitution felt the most powerful check on the usurpation of power by the federal government rested with the States. James Madison, known as the Father of the Constitution, called it “interposition” and declared that “…the states…have the right, and are in duty bound, to interpose…” (Virginia Resolutions of 1798 James Madison). For the central government to claim a right to determine the Constitutionality of its own actions and to assert powers not delegated denies the very nature of our Republic and makes the Constitutional restraints enacted by our founders null and void.
You shouldn’t take my word for it, please read and hear the words of the men who wrote the Constitution…
Is federal law supreme because of the “supremacy clause?”
A proper read of the Supremacy Clause actually supports Madison’s assertion of interposition. Although the Supremacy Clause states that “the Constitution and the Laws of the United States” “shall be the supreme law of the land,” the framers required those laws to “be made in pursuance of” the Constitution. Therefore, any law that is not made in pursuance to the Constitution CANNOT be classified as the “supreme law of the land.” Federal law cannot be supreme if it is not first in compliance with the Constitution. Alexander Hamilton made this point very clear…
“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Alexander Hamilton Federalist Paper #78
Can the Supreme Court “deem” federal law to be Constitutional?
If the Supreme Court can determine the Constitutionality of a federal act, then we are not a Republic of sovereign States but a monarchy. The Supremacy Clause declares the Constitution to be Supreme, not the federal government. “If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, alsomay exercise or sanction dangerous powers beyond the grant of the Constitution…….” James Madison,Virginia Assembly Report of 1800
The federal government seems to have forgotten that it was the “sovereign and independent States” that created and ratified the Constitution. It was the Constitution that created and defined a limited federal government.
“I, sir, have always conceived — I believe those who proposed the Constitution conceived –it is still more fully known, and more material to observe, that those who ratified the Constitution conceived — that this is not an indefinite government— but a limited government, tied down to the specified powers, which explain and define the general terms.” James Madison, On the Cod Fishery Bill, granting Bounties 1792
The founding documents and the men who wrote them make it unequivocally clear that the States have the final word on whether their creation, the federal government, has trespassed its clearly defined boundaries. AND IT HAS. Our States are “United” in a compact, the Constitution. The States’ compact created the federal government and defined its limited and specific powers. As the creators of the federal government that means the States are the masters of their creation. The 10th Amendment makes that very clear. The Legislative, Executive and Judicial branches of the Federal government have collectively torn through the boundaries set by the Constitution. The people have no recourse in the federal system, and must now turn to their States. The Framers considered it the duty of the States to stand against EVERY unconstitutional law created or enforced by the federal government.
“That the 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 sovereignties, of all unauthorized acts done under the color of that instrument, is the rightful remedy.” Kentucky Resolutions 1799 Thomas Jefferson, Writer of the Declaration of Independence
Nullification is the State declaring, “The federal government is NOT our master, the States and the people are the masters of the Constitution and we do not have to, nor will we comply with dictates not enumerated in the Constitution!” To deny the States this right is tyrannical and is an unconstitutional doctrine.
You must take a stand in defense of the Constitution and the rights the citizens that hired you to represent them. The legislators of Virginia in 1799 warned of the consequences of when a State refuses to stand against abuse of power by the federal government…
“The acquiescence of the states, under infractions of the federal compact, would either beget a speedy consolidation, by precipitating the state governments into impotency and contempt, orprepare the way for a revolution, by a repetition of these infractions until the people are aroused to appear in the majesty of their strength.” Address of the General Assembly to the People of the Commonwealth of Virginia, January 23, 1799
Establishing an Article 5 Convention requires the agreement of ¾ of the States; that will take more time than the citizens of Indiana have to protect their rights. There is an immediate need for the States to stand against this egregious federal usurpation of State power and rights of the people. Interposition as Madison termed, or Nullification as Jefferson called it, provides that immediate protection while the States can come together for a more long term remedy.
Rest assured many will not comply with this abuse of federal power forever. If you do not protect your citizens now, what will you do then? As a “Conservative” we should surely be concerned with the “state’s bottom line,” but as an elected representative who has taken an oath to “support the Constitution of the United States,” the integrity of the Constitutionally protected rights of your citizens must be supreme.
If you wish to read a more in-depth description of the State’s duty to interpose, please go to the following link and both part 1 and part 2 of this explanation.
President, founder, Constitutional Education & Consulting