Nullifying Unconstitutional Federal Acts

The November elections are roughly a month away, and they couldn’t come soon enough.

More Americans are seeing every day how out-of-control federal officials have become. As Angelo Codevilla aptly put it, they have become The Ruling Class, and a very corrupt one at that.

Patriotic Americans are hoping that the November 2 elections will bring this growing soft tyranny to a halt, but it remains to be seen if congressional Republicans will have the gumption to reverse what they themselves contributed to when they controlled the federal government. If the Senate in 2011 includes Senators Sharron Angle (NV), Marco Rubio (FL), Joe Miller (AK), Ken Buck (CO), Christine O’Donnell (DE), Mike Lee (UT), and a few others, then the GOP caucus may well be forced to cut programs and agencies rather than continuing to bloat them.

But the states, happily, have not been waiting for the federal cavalry to come over the hill. States have rediscovered their powers of nullification rooted in the Tenth Amendment. That wonderful amendment reads 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.”

Historically, the most widespread use of nullification was in the North in the years shortly before the War Between the States. They passed laws nullifying the Fugitive Slave Law in spite of a Supreme Court decision upholding it. That point needs to be stressed. The Supreme Court is not the last word in determining what is constitutional. The voters of each state are. If they re-elect politicians who will nullify Supreme Court opinions and unconstitutional laws or regulations, then so be it.

The states have now nullified the REAL ID Act, which would have converted state driver’s licenses into a national ID card filled (electronically) with all kinds of personal information. Years past the deadline, that unconstitutional act has never been implemented. In addition, many states are nullifying Obama’s efforts to socialize American medicine (or have already done so).

And of particular interest to gun owners, eight states have recently enacted a Firearms Freedom Act. These Acts provide for a nullification of all federal gun laws in cases involving guns made in a state, and which remain in the state. Wyoming’s law has one extra provision that is almost perfect.

The Wyoming statute provides for a penalty of up to 365 days in jail for a federal official who attempts to impose a federal gun law in contravention of the state’s Freedom Act. Perfection would require amending the law to provide for up to 366 days in jail. That extra day – even if the sentence were suspended following conviction – would trigger the federal law which would revoke the offending agents’ civil rights, including their right to keep and bear arms. I personally do not think that revoking a person’s Second Amendment freedoms for non-violent crimes is constitutional, but for the time being this penalty provides a handy tool for removing the federal boot from our necks.

A 366-day provision inspired by the Wyoming law not only needs to be inserted into all states’ Firearms Freedom Acts, it needs to be part of any state law nullifying all unconstitutional federal laws and regulations. For a first-class treatment of the history and contemporary promise of the use of the Tenth Amendment, one need look no farther than Thomas Woods’ Nullification: How to Resist Federal Tyranny in the 21st Century.