Constitutional Emergency

Tenth Amendment Center

Written by: Lesley Swann

Pushing back against the unconstitutional overreach of the federal health care legislation is priority number one for many liberty and tea party groups in the Great State of Tennessee.  Many ideas have been floated by various groups throughout the country as to the best means of revoking the federal health care legislation.  Several interesting ideas have been proposed, among them are federal lawsuits, interstate compacts, and state nullification.  When one takes a critical look at these options, it becomes clear that all three of these options boil down to a simple question.  Do we ask permission from the federal government to undo Obamacare or simply undo it?


Federal Lawsuits: Asking Permission from the Federal Courts to Exercise Our Constitutional Rights


A point to be made with regards to lawsuits is that they will be pursued in FEDERAL courts.  We will be asking the federal government to police itself, which it is most likely unwilling and, quite frankly, unfit to do.  The judges in these courts are appointed by and employed by the federal government, draw a federal paycheck, and will most likely be unwilling to “bit the hand that feeds them” as it were.  The federal court system has proven time and again that it most likely will rule on the side of expanding the role of the federal government, as it is a part of the vast federal bureaucracy whose primary concern is perpetuating itself.

Further, as Thomas Jefferson wrote, the federal government, via the courts or any other system it devised, does not have the exclusive right to judge what it can and cannot do.  In his words from the Kentucky Resolution of 1798:

Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

It is clear from Jefferson’s statement that the federal court system, as part of the federal government, does not have the exclusive authority to judge what is and is not constitutional.  The state governments have equal authority to the federal government in judging the constitutionality of any federal legislation.  For the states to go and ask the federal government for permission to judge the constitutionality of the federal health care law is ridiculous and counterproductive – the states already have this power and do not need the federal court system’s permission to exercise it.

Interstate Compacts:  Asking Permission from the U.S. Congress to Exercise Our Constitutional Rights

While Interstate Compacts are an interesting idea in theory to challenge Obamacare, ultimately they do have to be ratified by all participating states and then by the U.S. Congress per Article I, Section 10 of the Constitution. Again, this puts the states in the role of asking the federal government for permission to exercise the powers already guaranteed to them in the Constitution.  While such a compact might make it through the incoming House of Representatives, it is hard to believe that with the Senate still controlled by the majority who passed the federal health care legislation would approve an interstate compact that would reject the very legislation that they consider one of their greatest accomplishments. This leaves the states in the position of waiting years for a sympathetic House and Senate, if one ever comes into power, and by then the federal health care legislation would already be fully implemented.

The states don’t need to ask for further permission from the federal government through Congress to exercise the powers already granted to them by the Constitution, they already have these powers.  The states just need to use their existing powers to reject Obamacare!

State Nullification:  Exercising Our Constitutional Rights Whether the Federal Government Gives Us Permission or Not

We as Tennesseans must exercise our constitutionally guaranteed rights, whether or not the federal government wants to give us permission to do so.  Tennessee does not need permission from federal courts or any other federal agency to exercise the powers guaranteed to it under the Constitution and the Tenth Amendment. Our best hope is nullification, and encouraging our legislators and governor to have the courage and conviction to tell the federal government that the federal health care law is null and void within the boundaries of the state of Tennessee, and further enforce boldly penalties for any agents of the government who try to enforce these provisions of federal law.

Nullification requires that the state government PROTECT the people of Tennessee from the encroachment of the federal government on their liberties, not just pass non-binding resolutions stating “we don’t like this.”  By joining with other states that have already passed or soon will pass legislation to nullify Obamacare, Tennessee has the power to thwart the federal government’s ability to implement the unconstitutional health care legislation.

Nullification is the solution to federal overreach, such as Obamacare, proposed by Thomas Jefferson and James Madison in 1798 with the Kentucky and Virginia Resolutions, legislation that those states used to nullify the unconstitutional Alien and Sedition Acts in 1798.

James Madison declared in the Virginia Resolution that it is the duty of the State government to protect its citizens from the “evil” of federal overreach:

…the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Considering these opinions came from the Father of the Constitution and his mentor (and writer of the Declaration of Independence), I will take their opinions on nullification and constitutional law any day over those of any federal judge or congressional approval/disapproval of an interstate compact.

Nullification requires active and engaged citizens, legislators, and governors who are willing to stand up and fight for what is right and what is constitutional.  There is no easy option, but nullification will by far be the most effective, if we are willing to do the work required to see it through.  The bottom line is this – are we willing to exercise our constitutional rights whether the federal government gives us permission or not?

To download a copy of the Tenth Amendment Center’s model Federal Health Care Nullification Actclick here.  Please share a copy of this legislation with your state legislators.

Lesley Swann is the state coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

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EDITOR'S NOTE: The views expressed in the above post are those of the individual author only. The article is presented here to foster discussion, and does not necessarily represent the views or positions of the national Tenth Amendment Center.
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Our lovely Supreme Court has ruled at least twice that Unconstitutional laws are null and void and can not be enforced. anyone trying to enforce an Unconstitutional law is commiting a Feloney. I have the case numbers stored but will have to find them and that may take a while as I am currently moving. Gene
A number of states are already exercising this option either by vote of their legislatures or by popular vote of their citizens in  the last elections, including AZ!  That nullification rule has been "rediscovered" by state governments in a big way this last year and some.
Well written Lesley . As Jefferson and Madison so eloquently expressed the Constitution was written to specifically limit the powers of the Federal government and protect the States from over reaching Federal mandates. This legislation will have to be administered by the States and if enough refuse to do so it will be null and void. Obama will retaliate by withholding Federal funds from States opposing Obamacare. Therefore the Republican controlled House would need to simply not fund or appropriate the money necessary to implement this legislation. It must be stopped as it will push us over the financial cliff which we are quickly approaching.
With holding funds! Sounds familar. A while back, one State was threatened by the Federal Government to withhold Fed funds and the State threatened to not send the funds required by the Feds to them! The State ended up winning. They got the funds and didn't do what the Feds wanted them to.
Why do we need permission to do anything from the government?  Are we a slaves to the government or is a government our servant?  According to the our Constitution (Contract), the people are the master (sovereign) to the public officials.  So, permission=slave.    I don't remember giving up my sovereignty status to anybody or anything.  We the people need to make a loud noise to those officials(?) in the District of Corruption that we are all not stupid.  I agree that every true patriot needs to get involve in every level of government to wake up the sleeping giant and vote out those bums, scumbags, leeches, and above all, enemies of this great country.  The politicians cannot serve two masters.  If the 1st Amendment doesn't work, then 2nd Amendment will.  I hope we don't have to go to 2nd Amendment as a solution to this dilemma.
To do that we'd have to have our states' legislatures call for a Constitutional Convention, and I'm NOT all that sure doing so with the level of liberal indoctrination floating loose just now, that would be a wise idea, because once convened, we'd have NO control over what the convention did behind closed doors to our Constitution.  Better we stick, for now, I think, to getting us  BACK to rule of Constitution and Law, first, and get people re-educated as to what is right and wrong, THEN consider a Constitutional convention if needed.

A Constitutional Congress is required to amend the document. Nothing is ever removed, only superceded.

Changing the Constitution now is a dangerous time.

I Like The Idea!

I agree with your endorsement of nullification.  However, we should be well prepared to answer the arguments of Andrew Jackson and Abraham Lincoln (The Great Centralizer) against nullification.

If we are looking to the Law of God as our standard for all of life and practice there is precedence in the people overruling King Saul's foolish sentence of death against his own son Jonathan, in I Samuel 14:45.  The 16th Century Reformers Calvin, Knox and others referred to this as the Biblical Doctrine of Interposition, in which the lower magistrate is obligated by his oath to lead the people against the wicked king.

Let us base our actions on the Higher Law of God rather than the godless U.S. Constitution.  This would require that we are following our duly elected leaders, lest our reform degenerate into a lawless coup, such as the French Revolution.  The America Revolution was closer to the ideal. 

In his "Institutes of The Christian Religion" John Calvin stated that "Constitutional magistrates, however, ought to check the tyranny of kings; obedience to God comes first...Here are revealed his goodness, his power, and his providence.  For sometimes he raises up open avengers from among his servants, and arms them with his command to punish the wicked government and deliver his people, oppressed in unjust ways, from miserable calamity...For if there are now any magistrates of the people, appointed to restrain the willfulness of kings...I am so far from forbidding them to withstand, in accordance with their duty, the fierce licentiousness of kings...." (Ch. XX, Par. 30-31)  More on this at: 

http://www.america-betrayed-1787.com/old-testament-law.html

Twana, I am member of the Presbyterian Church of America (PCA), which is the conservative church that split off with  J. Gresham Machen when the mainline Presbyterian church went liberal in 1930s.  There are other even smaller Presbyterian denominations that would be closer to my understanding of the Biblical doctrine of the national covenant with God.  You might be familiar with Pastor Bryan Schwertley who speaks and writes a lot from this perspective:  http://www.reformedonline.com/view/reformedonline/s36p1327.htm

As a point of interest, I'm on Board of Advisors for the National Reform Association (the original NRA), the oldest political action group in America.  NRA was founded in the middle of the Civil War (1864) to advance the "Christian Amendment" to the U.S. Constitution, under conviction that the War was God's judgment on America for rejecting the Lordship of Christ, the King of kings, in the Constitution.

Here is part of the original statement, quoted on p3 of "Explicitly Christian Politics", a recent book published by the NRA:

"We regard the neglect of God and His law, by omitting all acknowledgment of them in our Constitution, as the crowning original sin of the nation, and slavery as one of its natural outgrowths.  Therefore, the most important step remains yet to be taken -- to amend the Constitution so as to acknowledge God and the authority of His law; and the object of this paper is to suggest to this Convention the propriety of considering this subject, and of preparing such an amendment to the Constitution as they think proper to propose in accordance with its provisions....We suggest the following as an outline of what seems to us to be needed in the preamble of that instrument, making it read as follows (proposed amendment in brackets):

 

"WE, THE PEOPLE OF THE UNITED STATES, [recognizing the being and attributes of Almighty God, the Divine Authority of the Holy Scriptures, the law of God as the paramount rule, and Jesus, the Messiah, the Saviour and Lord of all,] in order to form a more perfect union...do ordain and establish this Constitution for the United States of America."

NRA website is at:  http://www.natreformassn.org/  This movement was huge a century ago.  For example, there was a national convention of 10,000 in Portland, Oregon in 1913.  That was before the days of air travel, convenient road system, and there was no Rose Garden to house that many people.   And Portland is not exactly a geographically central location.  There was a convention of 58,000 from 41 nations six years later in 1919.  In other words, Christians and Conservatives were thinking more critically of the U.S. Constitution then, than they are today.

I believe our sin is like that of ancient Israel & Judah, who "regarded as a strange thing" the law of God (Hosea 8:12) and substituted "the statutes of Omri" (Micah 6:16).  "The Statutes of Omri" are typical of all man-made law, which must always lead to tyranny when replacing God's perfect standard of justice (summarized in Ex. 20-23).  In our case, the "statutes of Omri" would be the United States Constitution and "the laws of the United States made in pursuance thereof."

Somebody's law is going to prevail in the legal system of the nation -- either God's law or some version of man's law.  We certainly cannot earn salvation by keeping the law, for that would be an unlawful use of the law.  But Twana, I do not understand why you would not want to be ruled by God's law when every verse of Ps 119 and Ps 19 describes it as perfectly just and more to be desired than gold.  Why would you prefer anything that imperfect man creates over God's perfect standard of justice?  

 

Dt 4: 6,7 says that the unbelieving nations will be attracted by God's law and I Tim 1:8-12 confirms that the law of God is "good" for restraining lawless men in the political realm. To put it differently it is a "lawful use" of Old Testament law to restrain societal evil in New Testament times.

 

Christ didn't save us from the law, He saved us from the curse of the law because of our inability to keep it perfectly (Gal. 3:13).  But that does not release us from obligation to obey the law for sanctification via the Holy Spirit.  As Paul said in his great treatise on justification by faith, "Do we then nullify the Law through faith?  May it never be!  On the contrary, we establish the law" (Rmn 3:31). 

 

The standard for sanctification is another "lawful use" of the law (James 1:22-25).  That passage  compares it to a mirror in which we observe our imperfections that need to be corrected.

 

Notice too that Jesus did not rebuke the Pharisees for keeping the Old Testament law, but rather for replacing it with their man made traditions, exactly what we have done with the U.S. Constitution. 

 

"He was also saying to them, "You nicely set aside the commandment of God in order to keep your tradition.  For Moses said, 'Honor your father and mother,' and 'He who speaks evil of father or mother, let him be put to death'" (Mark 7:9,10).   Notice how he condemned them for setting aside both the 10 Commandments in Exodus 20 and the case law illustration of the 10 Commandments in Exodus 21:17.

 

Perhaps my article on Calvin contains the reference you were searching for: 

http://www.america-betrayed-1787.com/john-calvin.html

Twana, not sure what else to say except to point to various Biblical examples.  Law is by definition "force" or enforced morality and somebody's definition of morality is going to be enforced on the nation.  I suppose the basic question is do we want that to be man's definition of morality or God's definition, which James 1:25 describes as "the perfect law of liberty." 

Dt. 4:8 indicates that the nations around Israel would observe and declare, "What great nation is there that has statutes and judgments as righteous as this whole law which I am setting before you today?"  Amos chapters 1 & 2 are an indictment of the nations, including Israel and Judah, for failing to keep God's law.  Isaiah 2:3 describes a future day when "the law will go forth from Zion" and the nations will stream up to the mountain of the Lord to learn how to govern by the Law of God. 

In the New Testament, John the Baptist in preparing the way of the Lord lost his head for insisting that the unbelieving magistrate (Herod) was accountable to the law of God.  Why didn't John just stick with the job he had been given to do, i.e. baptizing and "preparing the way of the Lord?"  Why did he go meddling in secular government and try to control Herod and force Herod to conform to a law that Herod (an unbeliever)  did not accept and  thus make a hypocrite out of Herod?

"For John had been saying to Herod, "It is not lawful for you to have your brother's wife." (Mk 6:18).

I believe the answer may be found in Psalm 2 where we learn that the nations themselves have been given to Christ and the kings of earth are called to make formal submission to the King of kings:  "Therefore, O kings be wise, be warned O rulers of the earth.  Serve the Lord with fear, with trembling kiss His feet, lest He be angry and you perish in the way... how blessed are all who take refuge in Him" (Ps 2:10-12).

As we have so recently sung:

He rules the world with truth and grace,
And makes the nations prove
The glories of His righteousness,
And wonders of His love,
And wonders of His love,
And wonders, wonders, of His love.

 

 

 

 

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