For the first time in 144 years State interposition (Madison) and State nullification and secession (Jefferson) have entered public discourse as remedies to usurpations by the central government of rights reserved to the sovereign people of the States by the Constitution. Since Americans are not in the habit of exercising these policy options, it is worthwhile to ask just what State legislators and governors can do to protect their citizens from usurpations by the central government.

First, they can begin by passing resolutions (as a number have done), declaring in no uncertain terms that all powers not delegated to the central government nor prohibited to the States by the Constitution are reserved by them; and that the States themselves have the authority to judge what is reserved and what is delegated  Supreme Court case law notwithstanding.

To deny this is to say that the central government can define the limits of its own power which flatly contradicts the Constitutions language of State delegated and reserved powers.

Second, the States can insist that an office be set up in Congress to receive and respond to these resolutions. Resolutions are words. They cost little to produce, but words have power. As the Scottish philosopher David Hume observed, political authority is based primarily on opinion not force. It is not merely iron bars that confine you to prison, it is also the guards opinion not to let you out. If you could change his mind, the bars could not restrain you.

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A continuous flood of resolutions from the States about the constitutionality of this or that issue (and widely publicized), would serve to educate the public (and their rulers) about constitutional limits and alter the mind-set of politics in a decentralist direction.

Further, State legislators and governors should revive, where appropriate, the Jeffersonian discourse of State interposition, nullification, and secession as policy options. To deny this is to say that an American State is not a genuine political society at all, but a mere aggregate of individuals under control of a central government that alone can define the limits of its powers.

To hear such discourse in public speech can strengthen civic virtue and revive the long slumbering disposition of self-government that has been suppressed by a century of runaway centralization.

Lincoln understood the power of words, and advanced the cause of centralization by refusing to describe the States as sovereign political societies. He described them as mere counties authorized by central authority. He asked incredulously: What is this particular sacredness of a State? If a State, in one instance, and a county in another should be equal in extent of territory, and equal in number of people, wherein is that State any better than a county?

Lincoln was not describing the federative America that Jefferson and Madison founded, but an imagined and wished for centralized, unitary American state. It is time that the Lincolnian inversion of political discourse be inverted.

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Third, In addition to changing the terms of discourse, State legislators and governors should engage in 10th amendment acts of recovering usurped authority. The least controversial of these acts would be simply to not accept federal money for projects that are judged unconstitutional, such as federal involvement in education. Refuse the money, and begin restoring state and local control over education or whatever the issue might be.

Fourth, in order to restore usurped constitutional authority, a State must be prepared, at some point, to resist federal intrusion. There is a long history of States doing just that. Georgia nullified the Supreme Courts ruling in Chisholm vs. Georgia (1793); New England States nullified fugitive slave laws; and earlier New England townships nullified Jeffersons embargo and the war of 1812 declared under Madisons administration. Jefferson said he felt the foundations of the government shaken under my feet by the New England townships. Wisconsin was nullifying what it declared to be usurpations by the Supreme Court into the 1850s. There was a time when the States kept the central government under control.

Can this be done today? Before it is attempted a clarification is necessary. We must understand that any such constitutional challenge is a political one based on the States sovereign authority and not a matter justiciable by the courts. Genuine federalism in America can be recovered only by political action in the name of the States own authority and not by Supreme Court legalism.

Indeed, legalism only affirms that the Court has the final say over what powers the States have. When States interposed to block the Supreme Courts orders to desegregate public schools in the South on the ground that such orders were unconstitutional, the move failed but only because racial segregation was not a popular issue.

Many scholars then and now thought that Brown v. Board of Education was bad constitutional law, i.e., that the court had abandoned its proper role of policing the Constitution in favor of social engineering. Most, however, approved of the engineering, and paid little regard to the constitutional cost.

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August 29, 2009