The importance of Issue 3

Thomas Jefferson, father of nullification

I have a running argument with a friend on Facebook who sees no value to nullification; and I admit, his arguments are impressive and, from a legal standpoint, persuasive. He sent this letter to the Columbus Dispatch, which as far as I know, was not published:

Economically, Constitutionally, and Logically, Issue 3 is a lose-lose:

Regardless of your political leanings and view of the Affordable Care Act (ACA), Issue 3 is a bad proposition for Ohio. The amendment would cost taxpayers tens of thousands of dollars, result in needless litigation, and, in the end, leave us in the exact same place as now.

Throughout our 200 year history, state-level nullification of a federal law has been attempted on numerous occasions, always with the same results. The Supreme Court consistently has found that states do not have a right to ignore or override a law enacted by the federal government. (e.g., McCulloch v. Maryland, Osborn v. Bank of the United States, Cooper v. Aaron). With 200 years of precedent against nullification, what makes us think that this will be any different?

This time, it won't be any different – Ohio will not be allowed to nullify the ACA. The state will spend tens of thousands of dollars, and countless man-hours, defending a losing battle. Instead of being able to 'opt out' of the ACA, we will be back where we are now, only with a loss of money and time. Issue 3, in the end, will change nothing. 

If Ohioans see Issue 3 as the end of the matter, it will change nothing; because, as my friend writes, it has no legal standing. Nullification does not repeal a federal law, no matter how unconstitutional that law may be. Whether it can stop an unconstitutional federal law within its own state depends on how the battle of wills between the people of Ohio and the federal government plays out, as I shall explain presently.

In 1798, Congress passed the Alien and Sedition Acts, which greatly restricted freedom of speech. Because of the First Amendment, the Acts were grossly unconstitutional; but there was no case to bring before the Supreme Court (before it was generally acknowledged that the Supreme Court could rule on the constitutionality of a law). Thomas Jefferson and James Madison held, in the Kentucky and Virginia Resolutions, that when all else had failed, the states had a right to prevent enforcement of an unconstitutional federal law within its boundaries. The nullification resolutions started a political uproar that led to a new President and Congress in 1800, and the prompt repeal of the Alien and Sedition Acts.

In 1832, South Carolina passed a nullification ordinance against the federal tariff. President Jackson threatened force against the State of South Carolina if it attempted to block federal enforcement of the tariff. The resulting battle of wills led to a compromise, in which Congress repealed the provisions of the tariff that were most harmful to South Carolina, and South Carolina agreed to accept the amended law. 

These were two examples in which nullification succeeded, not as a legal act, but because it sent a clear signal to Congress that the acts being nullified were intolerable to the people of an entire state. In other words, nullification is not a legal act, it is a political one. There are also plenty of examples in which nullification attempts failed – because the issue being nullified was not compelling, or because the cost of upholding the nullification was greater than what the people of that state were willing to pay.

Normally, people will uphold the rule of law and use the court system when they collectively feel that the system is just and fair. In such times, nullification efforts will fail. However, when the people find that the law has become merely "an instrument of the tyrant's will" (as Thomas Jefferson wrote), then they will resort to extraordinary measures.

In American political theory, there are three political steps that can be taken when the people find that the law has turned against them:

1. They can vote the enactors of that law out in the next election, and elect a Congress that will repeal that law. But what happens when people perceive that system to be unjust, not just in the last few years, but over a generation or more?
2. They can, as Ohio's voters just did, turn to nullification, to send a strong message to the Congress that the Affordable Health Care Act of 2010 is infringing on the rights of the people to make their own health care decisions. Nine other states have made the same statement. But what happens if the federal government is determined to enforce its laws over repeated nullifications, or Congress is simply tone-deaf to the people it purports to represent?
3. A state has the right to secede. Secession, like nullification, is not a legal act even though it observes a legal process. Our Founding Fathers declared independence when it found a British Parliament that was tone-deaf to the pleas of the colonists. We may be approaching a time when, having tried and failed to repeal offensive legislation or to nullify it within the states; that separating ourselves becomes the only recourse that can be initiated peacefully. We have seen instances in the last twenty years in which secession abroad has been carried out in peace; but that does not mean that any such act can be done peacefully here.

I assert the right of secession as a natural right. A good argument can also be made, based on contract law, that the Constitution of the United States is a compact between the fifty sovereign (really, sovereign) states to provide for a common defense and agreed-upon services from a servant federal government. When the federal government rejects the authority of that Constitution, the compact is broken, and the states have the right to repeal their ratification of it. 

Failing all three, there is nothing that can be done within the legal process. If the federal government is determined to suppress secession by force, then we face a situation when (again quoting Jefferson) "the tree of liberty must be refreshed from time to time by the blood of patriots and tyrants."  In other words, we would have to resort to the natural right of revolution, just as thirteen Southern states found themselves having to do 150 years ago.

The best solution is for Congress to heed the calls of the several states to repeal the Affordable Health Care Act, Real ID, the USA Patriot Act, and other offensive legislation; and if it fails to do so, for the people to enact nullification ordinances all over the place until it does. But if the federal government is intent upon establishing a tyranny over us, we have the right to secede, before any of us resort to violence.

"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary…"  -- Ohio Constitution, Article I, Section 2.

Update Nov. 10: This is 213th anniversary of the adoption of the Kentucky Resolutions, written by Thomas Jefferson, against the Alien & Sedition Acts mentioned above.

Independence is drawing academic interest

Alan Caruba at LewRockwell.com has read the book Rethinking the American Union for the Twenty-First Century, a scholarly anthology edited by Donald Livingston of Emory University in Atlanta, to be published in October by Pelican Press.

After reading the book, Mr. Caruba observes that "clearly the central government has grown so large, so unwieldy, so wasteful, and so unresponsive to the problems and costs it has imposed that people are beginning to wonder why 435 Representatives in the House and 100 in the Senate should control the lives, the economy, and the education of more than 300 million people in fifty sovereign States.
The President virtually makes law with 'executive orders' and the nine members of the Supreme Court exercises final authority of the constitutionality of laws. Congress is so divided by raw partisanship it is barely functioning."

“The only remedy,” says Prof. Livingston “is territorial division of the Union through secession into a number of different and independent political units.”

Professor Livingston then observes that the "arrogant social engineers" on the U.S. Supreme Court feel free to strike down state laws at will. He urges the states to "reassert their sovereignty under the Ninth and Tenth Amendments and recall those powers they have allowed to slip out of their hands to the central government."



Mr Caruba continues:

This is not a call for anarchy. It is the realization that the modern presidency has aggregated to itself powers it does not have or, in the case of Libya, is ignoring the War Powers Act that limits its ability to engage the nation in conflicts Congress does not ultimately authorize.
 
It is the realization that every United Nations treaty the United States signs deprives it of its sovereign rights.

It is a call for consideration that regional groups of States with common interests might provide better government within such groups, leaving to the central government the responsibility to protect the nation via a common military, conduct foreign affairs, and return to the gold standard that would protect the value of a common currency...

When one-in-five Americans give credence to the right of secession, it is clear that the problems being experienced in all fifty States, the massive regulation of all activities within those States, the imposition of a centralized “core” curriculum to be taught in all schools, is arousing a rediscovered sense of liberty among Americans.

Mr. Caruba and Prof. Livingston provide further evidence that an idea that was considered wacky three years ago has entered respectable public debate, precisely because the usurpations of this President and the neglect of this and the previous Congresses to check those usurpations have awakened the American people to the fact that more drastic measures will become necessary, if we are to regain our liberties.

For myself, I would prefer that Ohio go it on its own as an independent Republic. With 11.5 million people, a land area of 40,000 square miles, and what would be about the 20th largest economy in the world if no larger state seceded, we would actually be a bit larger than the average nation out there today. However, I can see some advantages to forming a very loose "Confederation of the Great Lakes," but only if it follows the example of Switzerland and writes a constitution that consciously keeps the confederate government as weak as possible.

The window is opening for a serious discussion of independence in Ohio. My question to the reader is, how do we most effectively introduce it?

The Tea Parties STILL don't get it

Update April 1: The rally was not heavily publicized in the media, and likely for good reason. The turnout, estimated at 200, was pathetic. The event was well organized, but very poorly publicized. (I did not know of the rally until the day it was being held, and then only through Facebook). Here is the UPI report, for what it's worth.

More than a year ago, I warned that if the Tea Parties started drinking the Washington Kool-Aid, they would fail. I warned last August that Glenn Beck's 8-28 rally would not accomplish anything politically (though, perhaps, it did morally). So what is Tea Party Nation planning? Yup. Yet another rally in the imperial capital, which they call "Continuing Revolution 3.31."

It will surely fail. Even Congressmen who were elected as Tea Party supporters have failed the movement. With extremely few exceptions (starting with Ron Paul), the Washington environment corrupts whomever it touches. For the rest of my reasoning, I yield my space to Mike Tuggle at Rebellion (emphasis added):

How, then, can concerned patriots hope to bring about real reform? Go where real battles are being fought for the reforms the people demand, and you'll find yourself at the local and State level. The reasons for this are simple. For one thing, DC is too divided politically, with conservative States grappling endlessly with liberal States for mythical "one-size-fits-all" legislation.

Worse, the DC bureaucracy actively opposes the reforms the people of the States so desperately need -- how else can you explain Obama siding with Mexico to oppose the people of Arizona to control the border? State initiatives not only work, they send shudders down the jellied spines of the ruling elite -- and if you don't think so, read the ruling elite's frantic denunciations of State efforts to solve the problems DC won't, and ask yourself why these efforts terrify our rulers.

Here's the entire text of a recent email from a [Rebellion] reader:

How can we get more involved in FREEDOM?
There's no mystery here. If you want to catch fish, you head toward water, not the desert.

Graphic by Mike Tuggle at Rebellion.

We need to set priorities!

Glenn Beck likes to compare President Obama to a magician by saying that we always have to watch what his other hand is doing. The powers that be have thrown so much at the liberty movement in the last year, that it is hard to know where to direct our efforts. This could be intentional. If we split ourselves into many different directions, none of us will be effective. 

One of my most persistent critics likens me to a "gerbil in a wheel, spitting out worthless posts about secession-is-just-around-the-corner almost daily," a comparison I find laughable, but one which could become apt if we fail to focus on priorities. 

As a business analyst, I have to recognize that there are three constraints to every project: time, cost, and people. You cannot cut all three at the same time. If you want something done faster, you need more people, more money, or both. If you cut costs or people, you will probably need more time. 

Applying this to Ohio's liberty movement, we need to ask – among the many urgent needs we have to regain our freedom, which should we tackle first?

I observe that we can express most of our requirements as pairs -- actions needed in Congress that can be complemented or replaced by state actions. I list these pairs below. Note that I am ignoring the state budget and SB 5 because both are certain to pass in some form, most likely in a way that will work in the direction of smaller government.

My question to my readers is, which of the following should we be pursuing first, second, and third? Please comment; even if it is nothing more than "1.x, 2.y, 3.z."

	Actions by Congress	Actions by the State of Ohio
a	Refuse appropriations for the Libyan war.	Governor Kasich to refuse deployment of Ohio National Guard to Libya.
b	Repeal national health care, or "Obamacare."	Nullify mandatory health care in Ohio (legislation).
c	Abolish the Federal Reserve Bank.	Authorize state and local tax payments in gold or silver: "Honest Money."
d	Balance the budget.	Intercept federal taxes (through the Ohio Department of Taxation) pending a state board or legislative ruling on the constitutionality of federal expenses.
e	Repeal the USA PATRIOT Act.	Nullify the use of body scanners and aggressive patdowns in Ohio airports.
f	Modify or repeal federal gun control laws.	Nullify gun control for weapons both made and sold in Ohio (intrastate commerce). (Note: link is to bill in previous General Assembly)
g	Repeal federal drug laws, particularly those related to marijuana.	Nullify federal prohibitions on the use of marijuana as a prescription drug.
h	Repeal federal food laws that affect intrastate commerce in farm produce.	Nullify federal regulation of farm produce both grown and sold in Ohio (Manna Storehouse – but note that Manna Storehouse was an abuse of state power).

Harold discusses nullification and secession on Blogtalk Radio

I appeared on Ohio Public Square with Brian Duffy to discuss nullification and secession:

Listen to internet radio with OhioPublicSquare on Blog Talk Radio

Next Saturday: Nullify Now!

See the ad on the right sidebar. Free and reduced-price tickets are available for a limited time. Check the Nullify Now! website for details.

Idaho House passes health care nullification bill

The Tenth Amendment Center has announced that the Idaho House of Representatives has passed a health care nullification bill (H0117) on the Tenth Amendment Center's model by a vote of 49-20. Idaho doesn't mince words, as this excerpt will show:

INVALIDITY OF CERTAIN PUBLIC LAWS -- PROHIBITION ON ENFORCEMENT.

(1) The Patient Protection and Affordable Care Act, P.L. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, 124 Stat. 1029 (2010), herein collectively referred to as PPACA, having been declared unconstitutional by this Legislature, beyond the delegated powers of the federal government, and affirmed as such by the Court in State of Florida v. United States Department of Health and Human Services, Case No. 3:10-cv-91-RV/EMT (January 31, 2011, N.D.FL), shall not be enforced by the state of Idaho including, but not limited to, any of its departments, political subdivisions, courts, public officers or employees thereof.

(2) No department, agency or political subdivision of 1 the state of Idaho shall establish any program, promulgate any rule, policy, guideline or plan or change any program, rule, policy or guideline to implement the PPACA.

(3) No department, agency or political subdivision, public officer or employee of the state of Idaho shall enter into any agreement or any obligation to implement the PPACA.

(4) No department, agency, political subdivision, public officer or employee of the state of Idaho shall provide assistance or resources of any kind to any agency, public official, employee or agent of the federal government related to any attempted implementation or enforcement of the PPACA.

(5) No department, agency or political subdivision of the state of Idaho shall accept or expend moneys related to the implementation of the PPACA.

(6) No order of judgment, writ or levy of execution shall issue or otherwise be enforced upon any property or against any person in the state of Idaho to collect any amounts adjudged due or assessed against the state of Idaho or its residents for failure to comply with any provision of the PPACA.

(7) Any aggrieved person shall have a right to injunctive relief against any person violating the provisions of this section, with an award of attorney fees and costs to the prevailing party.

Ohio has three bills in committee, all of them much weaker than Idaho's. They are summarized here, along with The Ohio Project's Constitutional amendment.

You don't have to be right-wing to favor nullification

In fact, being a "progressive" can be an advantage, as Michael Boldin of the Tenth Amendment Center writes for the Los Angeles Daily News:

While the rhetoric coming from many on the right these days includes words like "nullification," and "state sovereignty," it has been the left, not the right, which has been successful in putting these ideas into practice. And, California has been at the forefront since the beginning.

When Californians voted to approve Proposition 215 to allow medical marijuana, the word "nullification" was not part of the argument, but it most certainly was the result. Opponents often cited the Constitution's "supremacy clause," saying the state had no authority to violate federal marijuana laws. But, Californians voted to violate those laws by the millions. And, when the Supreme Court ruled in the 2005 Gonzales v. Raich case that state-level medical marijuana laws were, in essence, illegal, dispensaries around the state didn't start closing shop. 

In fact, by 2005, there were nine other states that had joined California in passing medical marijuana laws. After the supremes told the country that such laws were a big no-no, how many were repealed? Zero. And since then, another five states - most recently, Arizona - have joined up. 

Freedom is for everyone, not just the so-called "wingnuts" on the right. Nullification is the way to protect that freedom within the system when conventional political processes fail.  

A survey of Ohio's nullification efforts

The Tenth Amendment Center has published a piece of mine that summarizes the Ohio Project and the three proposals before the Ohio General Assembly to nullify federal health care. I invite you to read it on their site.

The legality of nullification

A frequent commenter to this blog, Robert Barga, brings up an interesting objection to nullification in his comment on "Health Care Ruling, Victory or Trojan Horse?" (Feb. 1). Mr. Barga, who is an Ohio resident studying law in Connecticut, writes:

Here's the thing, I think that the court will find that this is an allowed action on Congress. If growing your own wheat for your own use is interstate commerce, then healthcare clearly is (right or wrong, this is how i see the court ruling)

Furthermore, I don't really see how nulification could work. While an argument over the right of it is interesting, the court has made it clear that the state's dont have the right to do that (see several cases prior to the 1860s, most after are clear cause of that war thingy).

Here is my response:

You are looking at nullification from the perspective of the American legal system and normal legal procedure. From that perspective, you are correct; and there are many reasons why a court, especially a federal court, would not want to uphold the right of nullification.

Nullification respects the rule of law, but is an extraordinary legal procedure. The Constitutional Convention itself is an example of a situation which respected the rule of law, but which was outside the legal system as it was understood at the time. You will recall from history that the legal process in 1787 would only admit of amendments to the Articles of Confederation.

I suggest that there is a continuum: Normal legal process on one end, followed by nullification and secession, with the right of revolution on the other end. Nullification is a state's recourse when the court system has persistently failed to consider the state's Constitutional rights. If nullification persistently fails, then the state may proceed to declare its independence. And God help us all if we have to resort to the right of revolution (as witnessed by recent events in Tunisia and Egypt). Nullification and secession respect the rule of law, by following accepted legislative and electoral procedures. Revolution is completely outside the law, and should only be resorted to in the most desperate circumstances.

To completely reject nullification and secession as acceptable options is to say that the states, as states, have no rights not granted to them by the federal government. This is completely contrary to what the Founding Fathers intended.

I wish we could turn this thing around by electing a more libertarian Congress and President, who would appoint more libertarian judges. But the experience of the last 80 years has shown that our political system is so corrupted that we cannot depend on the normal legal process to make the necessary changes.

Nullification and secession are safety valves that in this country should ensure that revolution will not be necessary. 

I might add, in response to his comment about "the war thingy," that war itself is outside the rule of law, so I cannot understand why anyone would use it as a legal precedent; even though many writers do exactly that with the War of 1861.

Cutting off the money supply

Last year, we discussed with Ohio legislators an idea for the State of Ohio to intercept federal tax money pending a determination of the constitutionality of its purpose. After considerable research and discussion, we were unable to find a feasible way to carry this out (but please feel free to e-mail me or comment if you have any ideas!)

Tom Mullen is looking at a different approach to the same end. Simply block enforcement of the tax laws until the feds balance their budget. Other legislation has been suggested to block federal enforcement of Obamacare, firearms law, and medical marijuana -- why not this? Writing for LewRockwell.com, Mr. Mullen suggests:

This would be accomplished in the same way as several other recent nullification/interposition efforts. The state legislatures would pass a law indicating that no person or business in their state could be prosecuted or fined by the federal government for failing to file an income tax return or failing to pay their quarterly payroll tax deposits, so long as said filings and payments were made within sixty days of the Congress passing a balanced federal budget. For those who still trust the people less than they do the government, a stipulation could be added that the funds go into escrow and be audited by the states, if necessary.

This would accomplish two things. First, it would reestablish exactly who works for who in this relationship. Obviously, elections have failed to do that. More importantly, it would work. The blind fear that would grip our legislators when they realize that the party is really over would at least scare them sober enough to balance what would still be an over $2 trillion budget. While it wouldn’t solve our long-term problems, that truly would be a start.

Bloated governments are imploding all over the world and ours is poised to do likewise for all of the same reasons. Now that we have seen what “extremism” really looks like in Greece, Egypt, and Tunisia, this proposal should strike any rational person as reasonable and moderate. We do not need a rebellion or violence to balance the federal budget – just a little adult supervision.

I especially like the part about adult supervision. The children are in Washington, the adults are in the states. We the grown-ups need to get back into control.

Déjà vu all over again...

J. D. Longstreet, writing for the Freedom Fighter's Journal, points out that there is a very close parallel between the times in which we are currently living, and the years immediately preceding Mr. Lincoln's War. Both then and now, states are passing nullification resolutions to prevent the enforcement of harmful and misguided federal laws. Both then and now, the people bucked a smug media that insisted that this could not be done. Both then and in the near future (if nothing changes) the people will resort to secession -- even if it means war -- to reclaim their freedom:

Look. This is serious business. I have read “smirking” reports in the mainstream media concerning the states and nullification. I expect you have seen them and heard them, as well. Here’s the truth about that: Those same kinds of reports by the press were made in the mid 1800’s and we all know what happened in April of 1861.

I don’t think the folks in the mainstream media, living their sheltered lives in the metropolitan areas on the east coast and the west coast, have any real idea of the American rage sweeping the nation between their respective coasts. They certainly give no evidence of it, if they do.

I am not beating a drum for the break-up of the United States. I am trying to make the point that if the people of America are not allowed to live and breathe free, that break-up will happen whether anyone beats a drum for it, or not! Fanning the flames of a prairie fire is not required for a little grass fire to become a huge firestorm. It requires only a spark – and sparks are flying all across this land.

Media folk may snicker at the folks in the aforementioned states if they choose. But remember, it has happened before on this very soil.

Mr. Longstreet's article shows a deep understanding of both the current issues and the history of the pre-1861 era. It is well worth reading.

As Nike says, "Just DO it!"

Update Jan. 26: My good friend Teri Owens advises me that the same bill has been introduced in Texas (HB297), Montana (SB161), Indiana (SB505), Oregon (SB498), Maine (LD58), Wyoming (HB0035), and Oklahoma (HB1276). Now it's our turn.

The Hill reports that Nebraska, with some prodding from that state's Campaign for Liberty, has introduced in its State Senate* LB 515, a bill to nullify Obamacare simply and completely. Section 3 of the bill reads:

Sec. 3. (1) The Legislature declares that the federal Patient Protection and Affordable Care Act is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the founders and ratifiers and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

Part (3) of Sec. 3 is even more interesting:

(3) Any official, agent, or employee of the United States or any employee of a corporation providing services to the United States that enforces or attempts to enforce a federal act, order, law, statute, rule, or regulation of the United States government in violation of the Federal Health Care Nullification Act is guilty of a Class IV felony.

State officials who enable the enforcement of Obamacare will be guilty of a Class I misdemeanor.

Some members of Ohio's liberty movement have expressed the concern that our HB 11 is more of an end run around nullification by implying that parts of the Patient Protection and Affordable Care Act are constitutional. At the same time, The Ohio Project's amendment only addresses mandatory health care. What we really need is a complete and blanket nullification of the law all in one place, as Nebraska has proposed.

* Nebraska has a one-house (unicameral) state legislature, which is known as the Senate.

Montana legislator wants to add teeth to state's firearms nullification bill

In April 2009, the Montana legislature passed a bill that exempted from federal law all firearms both manufactured and sold within the state, which is not interstate commerce within the meaning of the U.S. Constitution, Article I, Section 8.

Now, Bob Unruh at WorldNet Daily reports that State Sen. Greg W. Hinkle (R-Thompson Falls) has introduced SB 114, which would require federal employees to obtain the county sheriff's permission to  make arrests, searches, and seizures. With some exceptions, federal officials violating this act would be subject to prosecution. The act specifically states that federal employees do not have the authority of a county sheriff within Montana. The act applies to all federal law enforcement activities within the State of Montana, except on federal lands. It is not limited to firearms enforcement. If a county sheriff is under investigation, the federal official must obtain permission from the state attorney general.

Mr. Unruh notes that this is an example of a "sheriffs first" bill, which is being talked about in several states.

This bill is downright gutsy. It will be interesting to see how the legislative process plays out on this bill. Stay tuned.

(Because of the time required to maintain a status report of legislation in other states, I will not be keeping a spreadsheet of state sovereignty and nullification resolutions this year. Readers desiring this information should check the Tenth Amendment Center site).

The 2011 Legislative Program

Last year, we set five goals for the 128^th General Assembly:

1.  Gradually repeal the Ohio income tax (HB 400).
2.  Redirect federal tax funds to the Ohio Department of Taxation (on the drawing board, details).
3. Enact an Honest Money initiative (on the drawing board).
4. Enact a Constitutional amendment to nullify mandatory participation in a federal health care program (HJR 3, SJR 7, HB 489, SB 244).
5. Nullify federal law for weapons manufactured in Ohio (HB 315).

The partisan division of the General Assembly between a Democratic House and a Republican Senate resulted in the smallest legislative output in many years. In addition, legislative research on the second goal has failed so far to produce a practical solution to the problem.

We are no longer advocating the state sovereignty resolutions. They were valuable two years ago as educational tools to help the legislators and the people understand the concept of state sovereignty; but they were symbolic in character. Largely spurred by the Tea Parties and the federal health care initiative, we have moved on to asserting that sovereignty through nullification bills.

Here are the goals we recommend for the 129^th General Assembly:

     

1. Gradually repeal the Ohio income tax.
2. Enact an Honest Money act to facilitate the use of gold and silver in payment of taxes, thus encouraging their use in everyday transactions.
3. Enact a Constitutional amendment to nullify mandatory participation in a federal health care program, which would accomplish the objective of the Ohio Project’s petition campaign.
4. Nullify federal law for weapons manufactured in Ohio.
5. Rebuild the organized state militia, to protect Ohioans from illegal immigration, terrorism, and egregious military actions against the people of Ohio by the federal government.

Items 1 and 3 will strengthen our state’s economy. The other items are necessary to protect the rights of our people, and are critical elements to making good a declaration of independence, if all else fails.

Additional information on pending liberty-related legislation is available in the Ohio Liberty Council site.

On revolution

The Ohio Republic has repeatedly written on the possibility of revolution. I have thought for some time that a revolution is in the air in this country; even though I think Glenn Beck’s assertion that it has already begun is premature. However, given the rate at which the degradation of our liberties is taking place, as evidenced by the TSA scanners, the Food Safety Act, and (possibly) the proposed rules on “Net neutrality,” I can see the revolution beginning in 2011, instead of 2012 as I had originally thought.

Every revolution is unique, and each affects its society in a unique way. Each is the explosion that follows when pressure builds up beyond the ability of a society’s institutions to contain it. Since the pressure builds up gradually, it is impossible to predict when the explosion will take place – but those who are watching can see the pressure building, and know that one is imminent.

How a revolution ends depends on whether the instigators prevail, as they did in Russia in 1917; and how prepared they are to govern, as the French were not in 1792. It also depends on how the people react to the revolution. Do we surrender to what appears to be an unstoppable force, or do we try to stop the revolution, as the French did in 1968? History shows that revolutions hardly ever end in exactly the way the instigators expect. Hegel’s dialectic is true, albeit not in the way Karl Marx anticipated: the thesis (revolution) is always met by an antithesis (reaction), resulting in a synthesis (society following the revolution). If revolutions do not always end as expected, its ideas (or its scars) will nevertheless continue to influence the society.

Glenn Beck is correct on this point: revolutions begin by creating chaos. No one (including Mr. Beck, if he is honest with himself) can know right now whether his particular recipe is accurate. His theory is that the revolution will involve a bottom-up approach (by union thugs and “progressive” activists on the street), coupled with a top-down one (by officials in the Obama Administration and rich and influential people like George Soros). There certainly is evidence that the radical left will try to pin the chaos on tea party activists and “right-wing extremists.”

We may not be able to avert a revolution, but we can prevent the left from imposing its dictatorship of the proletariat on our country. The left has an Achilles heel: its intellectual arrogance. Every statement they publish, every plan they make, reeks of contempt for the intelligence of the American people and their willingness to act. They think that we will fall for every trap they lay, that we will immerse ourselves in football and Desperate Housewives on the tube until it is too late. They think that those of us who do resist, will do so violently. After all, what other reason can there be for asserting our right to bear arms? The rest of us, they think, will engage in a feckless quest to use our corrupted institutions to reverse decades of policies that they have developed in preparation for this day. The key to stopping the left, then, is to act in ways they do not anticipate.

However, to act in ways they do not anticipate, we need to develop some new ways of thinking. Once the revolution begins, the United States of America-as-we-know-it will cease to exist. Not may, will. All of us who treasure our history and our institutions will experience the stages of grief: denial, anger, loss and, acceptance.

In the war of ideas, the Eastern Establishment must be countered by a libertarian intelligentsia; which, fortunately we do have. We have the Mises and Cato Institutes, Walter Williams, and Chuck Baldwin. In Ohio, we have the 1851 Center for Constitutional Law and the Buckeye Institute for Public Policy Solutions. Ohio has another asset, not evident in very many other states: a cohesive liberty movement. That movement made a mistake in this election by trusting too much in the Republican Party; but it will soon realize that it was a mistake. In our state history, we have protected civil liberties much more effectively than most other states. The reason for this has been the fidelity of our courts to the Bill of Rights in our 159-year-old Ohio Constitution. Obviously, we’re not perfect (as Manna Storehouse and the Constitution Day kerfuffle in Andover attest), but we can be proud of our overall record.

With one exception, we have everything we need to protect our freedom. We have the brains, the movement, and the laws behind us. What we need, and this does not come naturally to Ohioans, is the willingness to use them in creative ways.

In revolutionary times, we must think of ourselves as Ohioans first and Americans second. While the nation remains in some semblance of domestic peace, we must continue to use our existing institutions to resist tyranny; for example, by using our new Republican General Assembly and Governor to nullify unconstitutional federal laws in Ohio. We must uphold the rule of law as long as we can.

But when that peace ends, the rule of law at the federal level will go with it. In preparation for that day, we have three very high priorities: we need to strengthen our organized state militia to augment the National Guard to protect us from externally-generated violence; we need to establish a mechanism for using silver in everyday transactions (honest money); and we need for all of us to start thinking, buying, and as practicable, manufacturing locally. And we need to start on all three priorities now. As I wrote earlier, we cannot predict the day the revolution will begin, but we can sense that it will begin very soon. It could be today – it could be a year from now; but we need to prepare now.

In so doing, we will do one of two things, both protecting our liberties. If the rest of the United States proves to be of the same mind as we are, we will all defeat the “progressives” and save the union. Otherwise, we will be prepared to declare and sustain our independence.

"The Constitution will never enforce itself"

In this speech, posted at the Tenth Amendment Center, Geoff Broughton, Colorado state coordinator for the Tenth Amendment Center explains why nullification is not only legal, but very necessary, if the Constitution is to be enforced against an out-of-control federal government.

Nullification is necessary, he writes, because power is a finite resource. The federal government can only increase its power by taking it away from the states and the people. For this reason, while we should be opposing acts in Congress like Obamacare and cap-and-trade, opposing it there is not enough. We must use our state legislatures to stand up to the feds when they exceed their Constitutional limits.

Mr. Broughton then raises an objection that I have often read in discussions on this subject: What about the Supremacy Clause? This is what he writes:

1997 “Mack/Printz vs. the US” Where two County Sheriffs sued the Federal Government over the Brady Bill. This was a law that forced county Sheriffs to run background check on their citizens who bought handguns at the expense of the county, and any sheriff who did not comply with this law would be subject to arrest. These sheriffs argued that this law violated the tenth amendment. This case was heard and ultimately won before the Supreme Court.

Justice Scalia writes for the majority, “…the Constitution’s conferral upon Congress of not all governmental powers, but only discreet, enumerated ones.” And in a direct challenge to this interpretation of the Supremacy clause, he writes, “It is incontestable that the Constitution established a system of dual sovereignty” he also states “This separation of the two spheres is one of the constitution’s structural protections of liberty. Just as the separation and independence of the coordinate branches of the federal government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

But there is really a supremacy clause, and it states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” This clearly states the Constitution and laws that carry out, follow and continue the Constitution are the Supreme Law of the land. [Emphasis here and in the passage below is Mr. Broughton's]

General welfare clause? The centralizers love this one, too; but they ignore James Madison in the process:

The general welfare clause has been interpreted by those favoring a strong central government to mean that as long as the law was meant to be in the “general welfare” of the union, congress has the authority to pass it. The argument against this is the Virginia plan, which was introduced by Madison at the Constitutional Convention. This plan would have created a National Government that gave the central government the authority to do anything it wanted. It is important to remember this plan was rejected by the delegation, and more importantly, it was never ratified by “we the people”.

James Madison, considered the ‘father of the Constitution’ and the author of the defeated Virginia plan, stated the following about this interpretation of the “general welfare clause”.

“Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.” Think on that a second. Now let me give you one of my favorite quotes from James Madison. “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”

While my posts stress the need to prepare ourselves for independence, I have also stated that independence is the last resort. The first resort is to use nullification to strengthen the United States Constitution against those who are establishing a tyranny in the District of Columbia. The success of nullification will make independence unnecessary.

But at all times, we must remember that government is instituted to protect the liberties of the people. First. Last. And all the time.

Legislative Agenda for 2011

Earlier this year, I created a page to suggest a legislative agenda for Ohio this year. Because our House Speaker was "gutless wonder" Armond Budish, we were not able to achieve any of it. With both Houses in Republican control, we should be able to achieve at least some of our agenda next year.

The Tenth Amendment Center has provided a resource for model nullification legislation on a host of topics from intrastate commerce to firearms to Constitutional tender (what we have been calling "honest money"). I encourage all our readers, especially those who will be serving in the 129th General Assembly, to review the suggestions, and to consider what we should be doing come January.

What nullification legislation do we need next year? Or do you think that nullification is a waste of time and we should go straight to secession* ?

Write a comment with your suggestions.

* This is more extreme than I am willing to advocate right now -- but there is a possibility that future federal actions will push me to that point.

NULLIFY full-body scanning!

Following up on yesterday's post:

The new Ohio General Assembly has an opportunity to spare our citizens the indignity of the TSA full-body scanners. Pass an act declaring that the full-body scanner is illegal in Ohio, and that any TSA agent who uses one (or anyone who attempts to install a new one) in an Ohio airport will be subject to arrest by the county sheriff and prosecution in the Ohio courts.

While one may reasonably argue that civil aviation is appropriately a federal responsibility by citing its right to regulate interstate commerce (U.S. Constitution, Article I, Section 8)*, the federal government is not responsible for passenger safety on the airlines. The airlines themselves have invested billions of dollars in aircraft, personnel training, and infrastructure. In most other businesses, security is the responsibility of the company. Why should airlines get a free ride and allow government to interfere with its operations in this way?

As I pointed out yesterday, full-body scans and groin checks are (in more ways than one) a gross violation of the Fourth Amendment. If security were left to the airlines, they would find techniques that are convenient and protect the dignity of their passengers -- otherwise, they will lose business to their competition.

What about the terrorists in our midst? The airlines and their insurance companies don't want their planes destroyed. No one wants the lawsuits that would follow from a terrorist attack. The airlines have the knowledge and the resources to come up with better solutions.

But the feds could do one thing that would eliminate the threat entirely. Get out of the Middle East and Afghanistan. Completely. I will explain how this enhances our national security in a future post.

So, newly-elected Ohio legislators, are you up to the challenge?


* Readers who object to my citations of the Constitution in the face of my recent "the Constitution is dead" arguments (here and here) are reminded that, under the rule of law, the Constitution remains the "supreme law of the land" until that unhappy day when it is repealed. The question we must ask ourselves when we face a violation is, do we live under the rule of law or the rule of men? Or stated more bluntly, will we live in freedom or in tyranny?

Inspired by a post by Andy Myers in Facebook, and by Sirius/XM radio commentator Mike Church.

Here's evidence that Ohio is opening its mind to secession

About a month ago, The Ohio Republic got picked up by several secessionist blogs when I made the following statement about my home state:

Ohio historically has been one of the most pro-Lincoln unionist of states, but my personal encounters with people suggest a rapidly growing acceptance of secession (especially if attempted gradually after a few nullifications of federal law). Ohioans today are less likely to be hostile to secession in principle than convinced that it will not work, or that it will result in an extremely violent federal backlash. If a poll were taken today, I think 20-25% of Ohioans would be open to secession, nearly double what I estimated from a Zogby poll two years ago.

Here is some additional evidence of that shift, coming from my friend Joe Bozzi, executive director of the Ohio Freedom Alliance, who posted this on their website today. Being quite brief, I will quote it in full:

Those who support concepts such as nullification and secession have often been accused of being un-American. However, that statement begs the question: what exactly does it mean to be American? America was founded on a tradition of self-government and local control which made us strong.

Unfortunately, in this century we have drifted more and more towards a centralized form of government. While more power, money, and decision-making has gravitated towards the central bureaucracy in Washington, it is not a coincidence that we have seen our standard of living start to flatten out and decline in this country. It is clear that we have been paying the price for moving away from an American form of governance and towards something more akin to a Soviet model of governance.

Nullification is an important way for states to opt out of unjust and illegal actions on the part of the federal government (individuals may also take recourse against injustice by opting out through jury nullification). Opting out of tyrannical and unjust laws will not result in the loss of the American ideal, quite to the contrary, it will only make it stronger. After all, what is America? Is it really the politicians and bureaucrats that claim to represent us in Washington? Or is it the the unique character and spirit of the people here in the villages, towns and cities across Ohio and this country? [Emphasis added].

Those who embrace nullification and secession are seeking a return to government by the people, which first requires that the system of government be on a human scale -- that is, one that the population can understand and relate to, and that those they elect can effectively manage.

I am not trying to kid anyone, including myself, that Ohio is anywhere near ready to secede. Ohio's readiness to embrace nullification is a question that won't be resolved until next year, when the health care amendment to the Ohio Constitution gets on the fall ballot, and a General Assembly elected this year will hopefully be more receptive to acts of nullification.