ESSAY: State Legislatures Have the Power to Resist Federal Tyranny
America’s Founders fought a bloody revolution in order to escape the “absolute despotism” to which they had been reduced under the hereditary monarchy of the British government, a system that Thomas Paine said “laid the world in blood and ashes.” After that revolution was won, the Founders’ singular focus was to create a republic that would safeguard individual freedom and state sovereignty by vesting only limited, specifically enumerated powers in a federal government. The Constitution’s first ten amendments (the Bill of Rights), Article I, Section 8 of the Constitution, as well as the Ninth and Tenth Amendments establish clear limitations on the power of the federal government and make clear that all power not specifically delegated to the federal government remains with the people, and the individual states.
Under our constitutional system, federal power is the exception, not the rule. As James Madison, the “Father of the Constitution”, wrote in Federalist Number 45, “The powers delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” An observer of the massive, often unchallenged federal overreach occurring in 2023 America who knew nothing about our Constitution or history would be surprised to learn this fact.
Our Founders were jealous guardians of state sovereignty and individual freedom, because they knew too well the dangers of an unrestrained government. The Constitution, the writings of the Founders, and the notes from the ratification conventions establish that every State that ratified the Constitution knew it was doing so with the assurance that it was retaining the vast bulk of its sovereignty, with full authority to nullify any federal law the State believed was outside the scope of its delegated authority. Without this assurance, the Constitution would never have been ratified.
In arguing for ratification of the Constitution, Alexander Hamilton wrote in Federalist Number 33 that any law passed by Congress that was not enacted “pursuant to its constituted powers, will be merely acts of usurpation and will deserve to be treated as such.” (Emphasis mine). Thomas Jefferson wrote in 1791 that “A nullification is the rightful remedy whenever the government violates the Constitution.”
Importantly, sovereign states have both the constitutional right and duty to determine for themselves whether any federal action exceeds its constitutional authority. As Jefferson said in the Kentucky Resolutions which nullified the federal Alien and Sedition Acts, “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”(Emphasis mine).
Our Founders knew that the federal government is never going to voluntarily limit its own power, and it was up to vigilant state governments and active citizens to do so. Beginning with the Virginia and Kentucky Resolutions in 1798, and for 100 years thereafter, States did
just that, routinely rejecting unlawful federal encroachment through formal nullification resolutions and citizen resistance. More recently, through a practice called anti-commandeering, state governments have simply refused to assist the federal government in the administration or enforcement of disfavored federal programs or regulatory schemes within their borders. From the Fugitive Slave Act to the Alien and Sedition Acts to alcohol prohibition to marijuana laws to Real ID, states have effectively nullified federal intrusion in practice and effect either through formal nullification or by simply refusing to cooperate by way of the anti-commandeering doctrine.
The US Supreme Court has repeatedly affirmed the anti-commandeering doctrine as a legitimate expression of State sovereignty, holding that the federal government may not compel states to act in such cases, even when the federal action itself is constitutional. In Federalist Number 46, Madison calls this perfectly legal practice the “refusal to cooperate with officers of the Union.” Equally important, the Court has held that the federal government may not condition substantial federal funding on a State’s non-participation in such programs or schemes.
State Legislatures across the Country have all the power they need to protect citizens from federal usurpation of their sovereignty that has become the rule rather than the exception to the rule. They are, in fact, the last line of defense against it. It is high time for decisive legislative action that puts the liberty of the people before personal or political self-interest. With the encouragement of active citizens, the Louisiana legislature must give the back of its hand to the federal government, and to any international organization with which it may be colluding, the next time it pokes its heavy, bloated head inside our sovereign tent. The days of reflexive compliance with federal tyranny must end. We will be watching closely, and reporting broadly, by name.
J. Christopher Alexander is from the Louisiana Citizen Advocacy Group
