During the ratification period of our fledgling Constitution, the states were concerned about federal overreach. To convince them that this was not a threat, James Madison wrote in Federalist 45 . . .
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
Madison was not trying to snow them. He truly believed that is what he and the Framers were setting up, and for a long time, it did work that way. The federal government stuck to its enumerated powers and its role as the entity whose primary task was to focus on “external objects” that concerned the whole union (national defense, treaties, foreign trade, etc.). The states played a much greater role in domestic affairs and had a plenary latitude that the federal government did not.
The first major change occurred with the centralizing effect of end of the Civil War. But the process of genuine centralization and arrogation of power by the federal government picked up real steam at the start of the 20th century. It was then that statism was coming into vogue in the United States and across the western world. People wanted modern governments to do more, and governments were only too happy to oblige.
The statists have now been at work for a century to turn us into a fully centralized, far more collectivist nation. And, needless to say, that project gained a fair amount more steam with the election and reelection of Barack Obama.
But, as history has shown time and time again, it is possible for a government to go too far. All humans have an innate understanding of their rights. Americans have an even stronger understanding than most, undergirded by our Constitution, our Declaration of Independence, our Bill of Rights, and the cultural ethos bequeathed to us by the Founders. It is definitely possible to push Americans too far.
Yesterday, in discussing the now well-known Corporal Joshua Boston and an interview he did with CNN on Feinstein’s “assault weapons” ban, I wrote the following:
At the end of this typical interview with a hoplophobic media talking head, Cpl Boston says something that—in spite of the early hour—caused me to smash my desk and shout in agreement.
“Unconstitutional laws aren’t laws.”
That is absolutely right. If a law violates the Constitution, it is not legitimate.
But the matter goes even further than that. If one of man’s laws violates the fundamental and broadly accepted principles of Natural Law, it too is illegitimate, even if the Constitution is silent on the subject. Of course, the Constitution isn’t silent—this is part of the purpose of the 9th and 10th amendments, whose point is to say, “Hey, we’re not listing every single right here, but we are letting you know that the ones we’re not listing still belong to the people.” A government must not make laws that disparage natural rights. A government or party that does so begins to relinquish legitimacy.
If Obama and the Democrats push too hard on the gun issue, it may be their Waterloo.
When considering what can happen when the federal government pushes past the point that the letter or the spirit of the Constitution allows, or pushes to the point where it is encroaching on preexistent natural rights, one thinks of numerous potential checks.
The first, of course, is federal elections. Lately, however, that does not seem to be working well. A century in which the Democrats have been constructing a massive statist edifice and an immovable bureaucracy, and during the majority of which they have held power, has left little room for the Republicans to turn the ship of state around. And many Republicans, even when in power, have not made much of an attempt to do so.
The courts are also an unreliable check. Since the 1960s especially, the courts have, more often than not, served as another quasi-legislative arm of the statist operation.
The people themselves are obviously a check, as shown by the revolutionary example of the Founders. That, needless to say, sounds like a rather extreme thing to say. But walk into any gun store, gunsmith’s shop, or shooting range in America right now and I guarantee you people will be discussing this as one of the potential options. The 2nd Amendment is rightly seen by many as the “amendment that guarantees all the others” and encroachment upon it is looked upon as an existential threat.
But there is another check: the states themselves. Though federalism has been on the ropes of late, and though the states appear to be increasingly forced into a position of vassalage under the boot of an expansive federal government, this is still a federal system. The structure is there. The ethos, though waning, is there. If the federal government goes too far, the states can work to assert their sovereignty, take a stand, and turn back the encroachment.
Obamacare is the most salient example of federal overreach, prompting states to sue the federal government numerous times over the past few years. But there is another option. The states can simply say . . .
States can pass laws that refuse to accept federal overreach, and that nullify it when it exceeds the limits established by the Constitution as it was intended. And it looks like Indiana is considering just such an action.
Here is the synopsis of INDIANA SENATE BILL No. 230, with the points bulleted for easier reading:
Applicability of federal law in Indiana.
- Provides that any federal act, order, law, rule, regulation, or statute found by the general assembly to be inconsistent with the power granted to the federal government in the Constitution of the United States is void in Indiana.
- Provides that a resident of Indiana has a cause of action to enjoin the enforcement or implementation or the attempted enforcement or implementation of a federal act, order, law, rule, regulation, or statute declared void by the general assembly.
- Provides that a plaintiff who prevails in such an action is entitled to reasonable attorney’s fees and costs.
- Provides that a person who knowingly or intentionally implements or enforces, or attempts to implement or enforce, a federal law that is declared void by the general assembly commits a Class D felony.
- Finds that the federal Patient Protection and Affordable Care Act and the federal Health Care and Education Reconciliation Act of 2010 are inconsistent with the power granted to the federal government in the Constitution of the United States.
As we have learned from events such as the Nullification Crisis of 1832-33, this is not an easy road for states to take. But if many states take this road, and if the people generally support it, there will be little the federal government can do. The tide of public opinion, when sufficiently focused on one object, tends to overwhelm all resistance.