A couple of weeks ago, I reviewed Loyola University (Maryland) professor of economics Thomas DiLorenzo's "The Real Lincoln," a book that presented abundant evidence that most of the Founders took the right of state secession for granted. Despite that evidence, some readers concluded differently. Let's consider an alternative to secession in response to federal government encroachment on our liberties.
Suppose Congress enacted the Federal Clean Thoughts Act (FCTA) and President Bush signed it. Under its provisions, before books and newspaper reports could be published, and before television and radio programs could be broadcasted, prior approval of their "fitness" would have to be obtained from the Federal Clean Thoughts Commission. Several parties bring a lawsuit before the U.S. Supreme Court charging FCTA is a violation of the First Amendment. However, the court finds that under the Constitution's "general welfare clause," the law is constitutional.
What do Americans do? Do we accept the tyranny or pick up the sword, or do we think about state secession again? I would hope that the response of my fellow Americans wouldn't be: "Williams, the law is the law. The Court has said FCTA is constitutional, and our job is to obey." What's clear in this scenario is that the legislative, executive and judicial branches of government are joined with one another to undermine our Constitution and destroy our liberties.
Do we allow the federal government to determine the scope of its own powers? Should we accept whatever Congress, the White House and the courts say is constitutional? Not according to Alexander Hamilton, who in Federalist Paper 28 said, "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."
One response to federal encroachment is for state governments to declare federal laws that have no constitutional authority null and void, and refuse to enforce them. While the U.S. Constitution provides no specific provision for nullification, the case for nullification is found in the nature of compacts and agreements. Our constitution represents a compact between the states and the federal government. As with any compact, one party does not have a monopoly over its interpretation, nor can one party change it without the consent of the other. Additionally, no one has a moral obligation to obey unconstitutional laws. That's not to say there isn't a compelling case for obedience to unconstitutional laws: the brutal force of the federal government to coerce obedience.
While Congress hasn't yet enacted such a flagrant violation of the First Amendment, most of what Congress does, with U.S. Supreme Court and White House sanction, represents constitutional encroachments of varying degrees.
You say, "Williams, explain that." Article I, Section 8 of our Constitution enumerates (lists) those powers delegated to Congress. The Tenth Amendment reads, "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." That clearly says that powers not delegated to Congress by Article I, Section 8 belong to the people and the states.
In violation of both the letter and spirit, the federal government imposes unconstitutional and costly mandates covering the gamut from education and land usage to how much water can be used to flush toilets. I wonder when a governor and his state legislature will summon the courage to declare some of these federal laws null and void, and refuse to enforce them.
Of course, Washington might respond by not sending back money the citizens pay in federal taxes. Then the potential of ugliness arises because the state can establish a mechanism to withhold the money its citizens send to Washington.