The Path to Saving the Republic: Just Say 'No'

Our nation is in crisis. The Obama administration is centralizing power at a level unmatched in American history with grave consequences for our future liberty and freedom. Of that there is not much debate among conservatives. Conservatives, however, are always waiting for the next Ronald Reagan, wondering if Marco Rubio, Paul Ryan or someone will win in 2016 and save the country from Obama. This is a fool's errand. Rubio and Ryan are fine men, good leaders and very important for our cause. But they can't save our Republic. There is no "one" and we need to stop looking to the next federal election to solve our problems.

So, is there a way to restore the Republic? There is good news; the first salvos have already been fired in the battle to save America. And no, they weren't fired from anywhere in Washington D.C., from members of Congress or from Republican Party headquarters.

The shots being fired, the first movements in a war to save our republican form of government are coming from the most unheralded of places. What is happening in Topeka, Austin, Ogden, Billings, Richmond and many other locales is just the beginning of a movement that will sweep this nation in the next four years. The people, in the form of their respective States and their State legislatures, are learning and relearning the lessons that Jefferson and Madison taught us over 200 years ago.

The lesson resides in one word: Just say "No."

When the Democratic Governor of Montana claims that any Federal government ban on the right to bear arms will not take hold in his State or when the Republican Governor of Texas says that there are sections of the Obamacare law that will not hit the ground in his State, they are not espousing a new, radical and revolutionary theory of American self-governance. They are speaking from an over 200 year history that traces its roots back to the Founding of our great nation and codified by the pens of none other than Thomas Jefferson and James Madison. They are the kernels of the coming restoration of America.

The Kentucky and Virginia Resolutions of 1798 were a protest against the Alien and Sedition Acts. It is hard to find a scholar alive that will find the Acts constitutional. In these resolutions, the authors, Thomas Jefferson and James Madison, argued that "the states" have the right to interpret the Constitution and can declare federal laws unconstitutional when the federal government exceeds its delegated powers. Thus, we have the theories of nullification and interposition. Of this, there is little historical debate, but the rest has been left to the time of history, to Court challenges, the Civil War, and varying interpretations of what was meant, what was the impact and relevance of these theories espoused in 1798.

The obstacles come not just from the Left on this issue. The vast majority of constitutional scholars, on the left and right, are dead set opposed to the theory of nullification. The scholars say that not only is the theory wrong, dead and long since decided, but even a discussion of the theory is verboten. Raise the issue and you are guaranteed of one thing: you will be called some version of a "pro-slavery, neo-confederate, Jim Crow loving racist." And that is if they are feeling charitable. The bottom line for legal scholars is that the debate over nullification ended in 1865.

The Civil War settled one thing for certain; that the attempt on the part of Southern States to secede from the rest of the United States failed. Everything that flowed from that, the freeing of the slaves, reconstruction and the future of the South, the centralization of power in the Federal Government etc., were consequences of the war. Why is that important in this debate? Because the theory of nullification, the discussion of the theory, the ideas of Jefferson and Madison, again, did not die at Appomattox, Virginia in 1865. If you are going to be honest, the theory of secession didn't die in 1865 either, just the attempt at it did. Remember, secession was never put on trial to be decided in a constitutional court.

Further, to answer the critics, the theory of nullification was not created or used in defense of slavery; in fact it had been used by the anti-slavery cause. The great Nullification debate of 1832 in South Carolina was over the issue of tariffs. The most well-known Supreme Court case on the issue of nullification was Ableman v. Booth, the Wisconsin case that was notable for the State of Wisconsin's resistance to the decision make in Dred Scott, the pro-slavery Supreme Court case of 1857. We are not arguing the legitimacy here, the Carolinians certainly seemed to overstep in saying that the passage of a tariff act violates the Constitution. But it is critical to restate this, nullification was not about slavery.

Granted, the legal arguments against nullification are long; the Supreme Court has repeatedly come down against the theory in numerous cases. Kentucky and Virginia were alone in their resolutions, no other States have ever signed up so explicitly as those two. Recent history, scholars, politicians and parties are all stacked against this theory.

But our history has often been moved by the people, not solely by scholars, political parties and their leaders. The purpose here is to simply open the debate. If one feels that our nation is facing a critical crossroads, that our very liberty is threatened and under attack, then don't we owe ourselves to look at ideas from our Founders?

The historical interpretation of the American Founding has gone down two tracks. The Left, of course, couldn't care less about the Founders; the Constitution is a dead letter that needs to be scrapped and made anew. This new "living" Constitution gives us one assurance; that we are being led down a path of tyranny and oppression. The American experiment is over.

But from the Right, when we speak of the Constitution and the Founding, we trap ourselves in a box. We won't allow discussion of the theories behind the Constitution, we no longer listen to the fears that many had in the enacting of our Constitution and therefore the safeguards that were put in place. Lost in history are other theories, such as those espoused in the Kentucky and Virginia resolutions that may offer a way to fight the growing federal unconstitutional tyranny that is taking shape.

It is ironic, but we, and rightly so, call out the Left for its manner of shutting out debate through name calling. You raise an issue and you are a bigot, racist, homophobe, Islamophobe, you name it. But the Right, in discussing this issue does the same, hence the ridiculous "neo-confederate" charge over the issue of nullification. With all due respect to the great legal scholars on the right today, I won't turn a deaf ear to the words and writings of Jefferson and Madison. Not under our present conditions.

Consider this hypothetical: what if five years for now, we are in either a third term of Obama (don't discount it) or the first term of say, Hillary. Scalia and Thomas are long gone from the Court; we are dealing with seven Sotomayors against two of our holdouts. A case comes before the Court on the 2ndAmendment. The Court decides that the Amendment pertains, not to an individual right, but only to state regulated militias, and not even states in our federal sense, but the State, the national government. What do we do?

The law is clearly unconstitutional, no matter what the Court says. Do we have a redress? Do we take the streets and revolt? Maybe eventually, but our founding fathers gave us another way. It is not the clearest way, not every Founder believed in it, the history is sketchy. Scholars are lined against it. But there can be no doubt what Thomas Jefferson and James Madison meant when they penned the Kentucky and Virginia Resolutions. The States, therein the people, can, and must, say one word to the Federal government in this, and other, unconstitutional instances:


Michael Finch is the Chief Operating Officer at the David Horowitz Freedom Center.