Thursday, 17 April 2014 10:43
At
its convention on May 2-4, the Wisconsin state Republican Party will vote on a
resolution claiming that it “supports legislation that upholds Wisconsin's
right, under extreme circumstances, to secede.”
A
story published April 14 in the Milwaukee Journal Sentinel online
reports that the “state sovereignty” resolution was approved in March by a
regional Republican caucus as a method of showing support for state power as
protected by the Tenth Amendment. As an expression of state sovereignty, the
proposal recommends the nullification of all federal mandates that exceed “the
scope of the constitutionally delegated powers of the federal government.”
The
Journal Sentinel reports that at a press conference, Wisconsin’s
Republican governor, Scott Walker, expressed disagreement with the resolution.
"I
don't think that one aligns with where most Republican officials are in the
state of Wisconsin — certainly not with me," Walker reportedly said at
Friday’s press event.
In
a statement published in the Journal Sentinel on April 4, Joe Fadness,
the executive director of the state Republican Party, said the Wisconsin GOP
“does not support secession.”
Secession
is an extreme response, however, to the repeated federal abuses of power
correctly identified and opposed by some Republicans in Wisconsin.
The
most effective weapon in the war against federal overreach is nullification.
Nullification recognizes that states (or counties, cities, or other local
entities) possess the right to invalidate any federal measure that exceeds the
few and defined powers allowed the federal government as enumerated in the U.S.
Constitution.
States
(and their legal subdivisions) retain the right to act as arbiters of the
constitutionality of federal acts because they formed the union, and as
creators of the compact, they hold ultimate authority as to the limits of the
power of the central government to enact laws that are applicable to the states
and the citizens thereof.
Despite
criticism by those who advocate for a more powerful federal government,
nullification would not lead to anarchy, as it is only unconstitutional federal
acts that will be subject to state invalidation.
Contract
Law Applied to the Constitution
The
relationship between nullification and secession can be better illustrated by
analogy from contract law.
First,
it is a well settled principle of Anglo-American law that parties to a contract
may rightfully seek remedies if another party is in breach of the agreed-upon
terms. One such remedy available to an aggrieved party is to require that the
party in breach amend his behavior to conform to the terms of the contract. The
aggrieved party may point to the violated provisions of the contract and remind
the offending party of the obligations undertaken in the contract.
This
reasonable approach is analogous to nullification. As the aggrieved parties,
the states (or a single state) may remind the federal government of its
repeated violations of key terms of the original agreement and demand that it
cease such excesses and that it restrain itself according to the mutually
approved contractual rights and responsibilities.
Despite
the reasonableness of this recourse, states have been reluctant to take this
intermediate step toward forcing the feds back within the proper boundaries of
their power.
There
is, of course, another more aggressive contractual remedy available in the body
of contract law. If one party to the contract suffers consistent breaches of a
contract, he may seek rescission of the entire agreement.
Rescission
is defined as the cancellation of a contract and is typically followed by
restitution. Restitution is the return of the parties to their pre-contractual
position — the position they were in prior to entering into the contract
relationship.
Whereas
the first remedy is analogous to nullification, rescission is comparable to
secession. States, as aggrieved parties, are safely within their
long-established rights in common law to abandon the union and reassume the
full panoply of powers and privileges they earlier ceded to the general
government in the contract (the Constitution).
The
newly-separated states would be once again free to remain independent republics
or to enter into another contractual relationship (confederacy) with one or
more states similarly separated from the union they once formed a part of.
While
this path is open to the states, as evidenced by the resolution recently passed
by a committee of the Wisconsin Republican Party, it isn’t always necessary.
Truthfully, no one who has witnessed the repeated violations of the original
compact by the federal government would blame the states for severing the ties
that bind them to federal tyrant. That said, there are yet millions of
Americans who recognize the genius of the Constitution and earnestly want it to
succeed, not only just for the sake of political stability, but for the sake of
demonstrating the deference to the founding generation who took the time to
distill the wisdom of ages into that unique document.
To
sum up, should a state or states decide not to continue silently suffering
constant breaches of that agreement by one of the other parties or by the
agents of the general government created by it, they may lawfully demand a halt
to the offending behavior and a performance by the breaching party of its
contractual obligations.
If
the breaches are significant enough, however, the states may demand rescission
of the entire contract and return to their pre-contractual position. And
remember, there is no requirement that the states expressly retain this right
of rescission in the agreement; it is available as an independent operation of
law.
James
Madison was no lawyer, but he knew and understood this legal principle. In
fact, he summed it up perfectly in a speech he made at the Philadelphia
convention:
Clearly,
according to the expositors of the law of nations, that a breach of any one
article, by any one party, leaves all other parties at liberty to consider the
whole convention to be dissolved, unless they choose rather to compel the
delinquent party to repair the breach.
Congress
is full of lawyers. Many presidents are lawyers. All federal judges are
lawyers. Yet somehow when it comes to the relationship between the federal
government and the states, they conveniently forget the basic principles of
contract and agency law that are understood by second-year law students.
Nullification
or Secession?
You
don’t need a law degree, however, to understand that if the basic principles of
the laws of contract and agency are applied to the relationship between states
and general government as created in the Constitution, the states’ right of
nullification becomes laughably simple and, to borrow a phrase from Thomas
Jefferson, “self evident.”
So,
the states created the contract, the operation of which was the formation of a
federal government. The federal government ignores that fact and acts under the
assumption that citizens will do likewise. And so far, they’ve been right.
There
are those in the Wisconsin Republican Party — and in other states — that are
not content to continue with the contractual status quo.
Despite
the frequent violations of the terms of the contract by the federal government,
states are not left with only the option of voiding the contract. In fact,
those state lawmakers and governors committed to forcing the federal beast back
into its constitutional cage are better served by simply nullifying each and
every congressional act or presidential decree that violates the agreed-upon
terms in the Constitution.
There
are several benefits of this attitude: It preserves the union, and demonstrates
state allegiance to the principles of freedom that undergird the Constitution,
and by extension, to our Founders.
Nullification
is also preferable because it is less final than secession. It is a flexible
approach that solves the sovereignty issue without dissolving the union. It is
a surgical, sparing way to remove malignant tumors of tyranny. Secession, on
the other hand, is like a chainsaw brutally butchering healthy and diseased
tissue indiscriminately.
At
the Wisconsin Republican Party Convention coming up in a few weeks, it is
unlikely that the body of the state GOP will approve a resolution that even
mentions secession, but the fact that such a statement has been approved by a
committee speaks loudly about the growing feeling of being fed up with federal
oppression.
Joe
A. Wolverton, II, J.D. is a correspondent for The
New American and travels nationwide speaking on nullification, the Second
Amendment, the surveillance state, and other constitutional issues. Follow him
on Twitter @TNAJoeWolverton and he can be reached at jwolverton@thenewamerican.com
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