Daily Archives: 20 June 2011

A Power Forgotten: Nullification; Yesterday, Today, and Tomorrow

Posted on by akoehlinger
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A Michigan circuit court recently penned an opinion on the Michigan Medical Marijuana Act. The opinion bases its reasoning in the Constitution’s Supremacy Clause, which binds all courts to uphold Federal law. While the opinion is logically sound in the instance it addresses, it fails to consider a critical constitutional check on federal authority: state nullification.

Article 6 of the U.S. Constitution states that “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; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

At first glance it appears that states and judges are bound in all instances by federal law. But further examination reveals an important distinction. Article 6 explicitly states that only federal laws made “in pursuance” of the Constitution may receive supremacy. The supremacy clause only holds in situations when federal law is constitutional. The 10th Amendment gives further credence to this distinction: “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.” Any and all actions outside the federal government’s constitutional jurisdiction are reserved to the states and the people.

These two constitutional provisions establish a necessary check (nullification) on federal power. The federal government is a binding collection of states which are themselves a collection of individuals. Thus, the federal government derives its power from the states and the consent of the governed, which can and must use this power to hold the federal government accountable. The 1798 Kentucky Resolution states “that the several states composing the United States of America are not united on the principle of unlimited submission to their general government . . . and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 1799 Virginia Resolution adds “that it views the powers of the federal government as resulting from the compact to which the states are parties . . . and that, in case of . . . dangerous exercise of other powers, not granted by the said compact, the states . .  have the right . . . to interpose . . for maintaining . . . the authorities, rights and liberties, appertaining to them.” The federal government resulted from a compact of the member states. They lend the federal government its powers and are the ultimate judge of the use of those powers. To give the federal government universal authority to judge the legality of its own laws is illogical and dangerous.

While much of current judicial opinion sides against state nullification, the movement is still afoot. After the Institute for Justice lost its case in Kelo v. City of New London, it turned to state courts and legislatures; a majority of which – including Michigan - took steps to amend their own eminent domain laws, nullifying the Supreme Court ruling. And if the Supreme Court upholds the constitutionality of the Patient Protection and Affordable Care Act, a similar movement is sure to begin.

Nullification is a necessary constitutional check on federal power. The states, not the federal government, are the final arbiters of federal power.

Capitalism, Compassion and Ayn Rand

Posted on by sjcammenga
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Say the word “capitalism” in some groups and people will instantly assume that you promote dog-eat-dog greed, corrupt business practices and can’t be bothered to care about the poor.

It is not difficult to figure out why people who do not understand the whole system would think this. Capitalism does have an individualistic focus, but that does not mean that there is no room for giving. One of the most memorable quotes from “Atlas Shrugged” summed up much of Ayn Rand’s philosophy; “I swear by my life and my love of it, that I will never live for the sake of another man, nor ask another man to live for mine.”

Rand was self-focused and did not condone making sacrifices with no benefit. This does not mean, however, that there was no love, compassion or special giving in the world she advocated. Her idealistic characters in “Atlas Shrugged” made a daring raid to secure the safety of a friend, risking their own lives in the process. Although the act appears selfless, these individuals benefited from saving the friend and not needing to suffer the grief of losing him to the looters. Rand takes great pains to show that the individual achievements that her characters profit from also have a positive effect on others. Acting in self interest and making money does not mean that the gains are hoarded. As the business owners became richer, they hired many people to keep the company running at capacity, and invested money into developing newer, better and cheaper products for the consumers. When their businesses were flourishing, everybody won.

To conclude in Rand’s own words, showing that individuals know how to create prosperity better than the government: “America’s abundance was created not by public sacrifices to “the common good,” but by the productive genius of free men who pursued their own personal interests and the making of their own private fortunes. They did not starve the people to pay for America’s industrialization. They gave the people better jobs, higher wages and cheaper goods with each new machine they invented, with every scientific discovery or technological advance – and thus the whole country was moving forward and profiting, not suffering, every step of the way.”