State Nullification and the Tenther Movement: Fight the Fed

state nullification jefferson

State nullification is the only way to tame the Leviathan! http://logisticsmonster.com/

State nullification is a term you will be hearing more and more often in the coming years.  It is taking place all across the nation as states fight to take back power from the Leviathan-like federal government of the United States.

Simply put, a vast majority of Americans believe the federal government is out of control. Activities like NSA spying, the use of drones, the passing of the NDAA, illegal search and seizures, and overall flagrant disregard for the rights and will of the people have forced the hand of individuals and states. The people are taking a stand, and state nullification appears to be the key to success.

Over the years the Fed has been placing greater emphasis on its own will rather than the will of the people. The Fed has actually gone so far as to throw away the writ of habeaus corpus whenever it sees fit under the Patriot Act and NDAA. There are various solutions to the power struggle that individuals and groups have experimented with.  Some people choose to protest, some revolt, while others choose to cast their vote and hope for the best. All of these methods have wildly mixed results.

State nullification, however, is an historically effective tool used by of one of the fastest growing movements in America.  This movement has been wining major battles with the Fed for years, and there is no sign that state nullification will stop working as a viable solution in the near future. The movement I’m referring to is the Tenther Movement.

 

The Tenther Movement

tenther movement state nullification

Proponents of state nullification are part of the Tenther Movement. sodahead.com

The Tenther Movement, also called the State Sovereignty Movement or Tenth Amendment movement, is spreading like wildfire. It is founded on a political ideology which posits that the federal government is acting unconstitutionally, and that it is the states’ obligation to stand against an unconstitutional federal government.  It is a state-wide refusal of what is considered flagrant disregard for constitutional law on the part of the federal government. Most importantly, refusal is taken a step further with federal laws overturned through state nullification.

According to the supremacy clause of the Constitution no state is allowed to create a law that is in direct conflict with a federal law. Incredibly, despite the legal reality of the supremacy clause, state nullification has worked in the past, and continues to work today. The numbers are staggering, with some reports showing that 80% of states have at least one law in direct opposition to a federal law.

The Tenther movement was inaccurately named after the tenth amendment to the Constitution, which states:

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.

This is a misnomer however since the implied validity of state nullification goes beyond just the wordage of the Constitution to the very words spoken during various constitutional conventions.  In fact, supporters of state nullification have attempted to shed the name “Tenther” because it was created as a pejorative by those opposing their ideals. The name, however, has stuck.

If state nullification is so popular, why have you never heard of it? Actually, you have heard of it, you probably just didn’t realize it was a collective movement. In truth, any state victory against the Fed is associated with the Tenther Movement in some way. Check out this list of instances where state nullification is either being considered, currently being passed, or has already been used to trump federal law in a wide array of states:

As you can see, there is a great deal of successful, and ongoing state nullification taking place in the United States.  Taken as a single instance state nullification may not mean much. Taken collectively, however, state nullification represents a powerful, growing trend in practicing state sovereignty. Every time a state stands up to what it perceives as the Fed overstepping its boundaries all other states benefit. State victories set national precedents. Consider, it wasn’t until cannabis was recreationally legalized in Washington and Colorado that hemp became legal at the federal level for 10 different states that are ready to grow it.

How are states getting away with this, and do their actions stand a fighting chance in a court of law?

Related Article: The Drones Are Coming!

 

Is State Nullification Constitutional?

According to legal scholars, the Constitution, along with various court rulings, make it clear that the federal government reigns supreme. If a state’s activities or laws impede the federal government in any way, the state is legally bound to change in accordance with the federal government. The supremacy clause is clear about one thing: the game is rigged. No matter what, the Fed wins.

state nullification federal law

State nullification? According to the current Fed, keep dreaming… http://www.federalcriminallawyer.us/

Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law explains that,

the law is clear — the supremacy clause says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws.

As we learned above though, the world of law and the real world are very different places. Somehow, the Fed is losing. Its prohibitions and decrees are being overturned by states all across the country.

One of the most outspoken voices supporting state nullification is a man named Tom Woods. Woods is being featured in the mainstream media and invited to legal seminars across the nation. Everyone wants to know the same thing: What makes proponents of state nullification think they have a leg to stand on in a court of law?

Let’s take a look at the wording of the supremacy clause . It reads:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

According to Woods and other state nullification supporters, the key to their movement is the bolded text, “which shall be made in Pursuance thereof.” According to Brion McClanahan, Ph.D. in American History from the University of South Carolina and a faculty member at Tom Woods’ Liberty Classroom,

All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

state nullification tom woods

This is Tom Woods book which outlines the legality and necessity of state nullification. http://www.libertyclassroom.com

Thus, anything not clearly outlined in the Constitution does not fall under the supremacy clause. There is nothing about healthcare, cannabis, or the NSA in the Constitution, thus, according to state nullification supporters, these issues fall under the tenth amendment: state enumeration.

Concerns regarding the federal power granted by the supremacy clause are nothing new. Debates over the clause date back to the Constitutional Convention held on May 31, 1787, when Edmund Randolph presented the Virginia Plan. The plan granted the federal government the power to “negative,” or shred any extant state law if it deemed a state was “incompetent.” Pierce Butler along with other representatives from South Carolina stressed that this plan was too vague and stripped the states of too much power. In the end, the idea of a federal “negative” power was voted down.

In subsequent Constitutional and ratifying conventions the supremacy clause was continuously debated. In response to attacks made on the supremacy clause, William Davie, a delegate to the Constitutional Convention from North Carolina and supporter of the Constitution explained to those against the supremacy clause that,

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.

In plain English, the supremacy clause ONLY pertains to those powers clearly granted by the Constitution. Furthermore, Supreme Court justice James Iredell of North Carolina argued that the supremacy clause,

is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles. If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution.

According to Tenthers the words of both the supremacy clause as well as those of our founding fathers make it clear that federal power is limited to those powers outlined in the Constitution only.  State nullification likely wouldn’t hold up in a contemporary court of law, yet it appears to be completely in accordance with the words of the Constitution.

Related Article:  ObamaCare and the 49-Employee Company

 

Tenther Philosophy: Argument for State Nullification 

What we have here is a clash of semantics and philosophy dating back centuries. The founding fathers, as well as contemporary interpretations of the Constitution, are all locked in a Locke vs. Hobbes fight:  John Locke’s idea of a fully self-governed society vs. Thomas Hobbes idea of an all-powerful leviathan government.  Has the Fed turned into Hobbe’s Leviathan? According to Tenthers, absolutely.

state nullification thomas jefferson

Thomas Jefferson prescribed state nullification as the necessary cure to tyranny. http://northcarolina.tenthamendmentcenter.com/

Woods reminds us that both Thomas Jefferson and James Madison warned of an out of control central government, and prescribed state nullification as the proper weapon to fight against a leviathan government. Woods explains why we need state nullification:

As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.

Woods sums up the basis of Tenther philosophy using the following three points:

1. The states preceded the union. The Declaration of Independence speaks of free and independent states. The ratification of the Constitution was accomplished not by a single national vote, but by the individual ratification of various states.

2. The American system appoints no government as sovereign. The people of each state are sovereigns, and they apportion power between themselves, their state governments, and the federal government. This apportioning is a sovereign exercise, not an impairment to sovereignty.

3. Since the people of each state are sovereign, they themselves are the proper disputants when the federal government acts unconstitutionally. The people of the state are responsible for reviewing whether their agent (the federal government) was intended to exercise such powers in question. The sovereigns must retain the power to restrain the agent they themselves created. 

If the sovereign power of the people cannot be retained, a leviathan inevitably grows, resulting in the loss of civil liberties and rights. This is precisely the reason the government is allowed to continue violating the rights of the American people on a daily basis.

Related Article: A Case Against Gun Control

 

What if State Nullification Passes Segregation or Slave Laws?

This is the most common issue raised by scholars when discussing the validity and constitutional safety of state nullification.  For obvious reasons, it is an extremely valid point.

Woods uses history as his defense. According to Woods, state nullification has never been used in support of slavery. State nullification was instead used against slavery. Wisconsin nullified the Fugitive Slave Act of 1850 and safely transported a runaway slave to Canada.  While the Wisconsin nullification is true, the full breadth of Woods assertion is not.

state nullification brown v board of education

Brown V. Board of Education shook up the nation. Those that attempted state nullification got shut down. http://www.thelostyear.com/

When Brown V. Board of Education passed in 1954, several states attempted to use state nullification to claim that the supreme court decision held no legal ground in defiance of state laws. All nine justices signed an opinion stating that the states were the ones in defiance of constitutional law.

In the 1958 case of Cooper V. Aaron, in response to Arkansas attempting to keep schools segregated using state nullification, the Supreme Court stated that the Brown V. Board of Education decision,

can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously’.

The supreme court put a seeming halt to the state nullification debate when it stated in the case of Bush V. Orleans Parish School Board that,

The conclusion is clear that [nullification] is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, ‘it amounted to no more than a protest, an escape valve through which the legislators blew off steam to relieve their tensions.’ . . . However solemn or spirited, [nullification] resolutions have no legal efficacy.

In the end, this point stands as a valid argument against state nullification. History however stands to show that state nullification has only been successful in defiance of slavery, not in defense.

The Supreme Court explains clearly that state nullification is a bunch of baloney, but according to the Constitution, state nullification is perfectly valid.  The Supreme Court claims that the federal government is the supreme law of the land in all matters it deems constitutional, but the Constitution limits the Feds power to only that which is outlined in the Constitution. What’s going on here?

 

Nobody’s Right, and Everyone’s Wrong

The Supreme Court doesn’t believe that state nullification holds any legal backing. The words of America’s founding fathers, specific words used in the supremacy clause, and the sovereignty of the individual claim otherwise. Who’s right? I don’t know that there is a clear answer.

state nullification map country

In reality, the country looks more like this. regansravings.blogspot.com

The point is that the Tenther Movement, whether good or bad, is proof that states have the power, if not the right, to self govern themselves. For whatever reason, state nullification is working, and is proving to be an effective method in creating change in the current “Leviathan” federal government.

Did all hell break loose in Colorado when cannabis was recreationally legalized? No, because everyone who is getting high now was already getting high before pot was legalized. The only visible difference this act of state nullification has made is the amount of money and business flowing into each state. Colorado and Washington hit the jackpot. Another great upside to the current state nullification craze is lower suicide rates in states that have legalized medical marijuana. If this movement is saving lives, maybe it’s worth a look?

Even though the Tenther Movement is taking place on a state level, it is people like you who ensure the snowball of change begins rolling at the local level. If the Tenther Movement has shown us anything it is that we the people are not powerless. If the federal government is out of control, it is the peoples’ duty to ensure that reasonable order is restored. Alone we can do nothing, but together, we the people have power.

Head to the Tenth Amendment Center to get up to date information about state nullification taking place in each state. The site also offers resources to help you get started on leading your own state in the process of state nullification.

“Be the change that you wish to see in the world.” – Mahatma Gandhi

 

Sources:

http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html

https://www.aclu.org/blog/tag/ndaa

http://www.huffingtonpost.com/tag/illegal-search-and-seizure

http://www.globalresearch.ca/the-suspension-of-habeas-corpus-in-america/5311701

http://tenthamendmentcenter.com/?doing_wp_cron=1392051648.6796290874481201171875

http://www.thenewamerican.com/usnews/constitution/item/7701-state-vs-federal-the-nullification-movement

http://www.annenbergclassroom.org/speakouts.aspx?name=what-happens-when-states-enact-legislation-that-contradicts-federal-laws-&AspxAutoDetectCookieSupport=1

http://www.law.cornell.edu/constitution/tenth_amendment

http://reason.com/blog/2009/09/21/the-tenther-smear

http://tracking.tenthamendmentcenter.com/?doing_wp_cron=1392252846.9485108852386474609375

http://online.wsj.com/article/PR-CO-20140210-906077.html

http://definitions.uslegal.com/s/supremacy-clause/

http://www.libertyclassroom.com/nullification/

http://www.ourdocuments.gov/doc.php?flash=true&doc=7

http://avalon.law.yale.edu/18th_century/debates_531.asp

http://press-pubs.uchicago.edu/founders/print_documents/a6_2s19.html

http://jim.com/hobbes.htm

http://www.washingtonsblog.com/2013/02/constitution.html

http://www.wisconsinhistory.org/dictionary/index.asp?action=view&term_id=2485&keyword=booth

https://supreme.justia.com/cases/federal/us/358/1/case.html

http://www.leagle.com/decision/19601104188FSupp916_1899

http://ideas.repec.org/p/iza/izadps/dp6280.html

http://grassroots.tenthamendmentcenter.com/?doing_wp_cron=1392303861.0843660831451416015625

Private Prison Sues State for Not Having Enough Prisoners

A private prison in Arizona recently sued the state for having a lack of prisoners. For the sake of saving over $16 million in back pay, the state settled by paying the private prison $3 million.  Arizona essentially payed a company $3 million because not enough people are committing crimes.

To be fair, it’s a bit more complex than that. In July, 2010 three violent inmates escaped from an Arizona private prison, which prompted officials to stop sending new inmates to the facility. I say good job to the officials for demanding better performance from Management & Training Corp., the company that runs the prison. Unfortunately, a line in the company’s contract with the state guarantees that the prison is at least 97% full at all times.  They sued on grounds that the breach of contract caused a dramatic loss in revenue.

Surprisingly, this type of contractual agreement is the norm. A review from In the Public Interest revealed that out of 60 analyzed contracts between state/local governments and private prisons, 65% contained language mentioning prisoner quotas. This means that state officials have absolutely guaranteed private prisons a profit. And who finances that guarantee? The taxpayers, of course! 

The prison bed guarantees range between minimums of 70 percent occupancy in a California prison to 100 percent occupancy requirements at some Arizona prisons. Most of the contracts had language mandating that at least 90 percent of prison beds be filled.

Did you catch that? Some private prisons are guaranteed 100% occupancy, and if they don’t get 100% of the beds filled they still receive a grand payday via our collective paychecks.

Related Article: Brazilian Prisoners Read Their Way to Freedom

In an interview in 2010, former Arizona Attorney General Terry Goddard pointed out a crucial issue regarding private prisons, saying

I believe a big part of our problem is that the very violent inmates, like the three that escaped, ended up getting reclassified [as a lower risk] quickly and sent to private prisons that were just not up to the job.

This is incredibly irresponsible and dangerous behavior, especially since many private prisons are under-equipped and poorly run.  They contain

inadequate patrols and prisoner movement, excessive false alarms, a lax culture, and inconsistencies in visitor screening procedures.

According to Michele Deitch, a senior lecturer and criminal justice expert at the University of Texas School of Public Affairs,

It’s really shortsighted public policy to do anything that ties the hands of the state. If there are these incentives to keep the private prisons full, then it is reducing the likelihood that states will adopt strategies to reduce prison costs by keeping more people out. When the beds are there, you don’t want to leave them empty.

Related Article: Write a Prisoner

In summation, we are putting unnecessary contractual agreements with a private corporation above the safety and well being of citizens. A 2011 report by the American Civil Liberties Union pointed out that

private prisons are more costly, more violent and less accountable than public prisons, and are actually a major contributor to increased mass incarceration.

This is most apparent in Louisiana, which is the prison capitol of the world and houses a large amount of its prisoners in private prisons.  So, why do we have private prisons anyway?

Why Do We Use Private Prisons?

private prison crowded

Prison is so much fun! Just like a sleepover. http://www.latimes.com/

The initial use of private prisons is directly linked to the utter failure that is the War on Drugs. In 1970 Nixon began, and all subsequent presidents continued, to became intensely serious about the war on drugs and started punishing non-violent, hard working Americans for ingesting substances responsibly and safely. From 1960 to 1980 the number of total arrests nationwide rose by 28% while the number of drug related offenses rose by more than 127%, with the number continuing to rise exponentially.

(Nearly 40% of all federal and state inmates are non-violent drug offenders. Moreover, more than half of all drug-related arrests are entirely cannabis related.)

Related Article: Another Casualty of the Paramilitary State

These dramatic rises in arrests left state and local governments scrambling.  Hiring a private company to handle the hard work was the obvious answer.

With a burgeoning prison population resulting from the “war on drugs” and increased use of incarceration, prison overcrowding and rising costs became increasingly problematic for local, state, and federal governments. In response to this expanding criminal justice system, private business interests saw an opportunity for expansion, and consequently, private-sector involvement in prisons moved from the simple contracting of services to contracting for the complete management and operation of entire prisons.

The first time a private company was given the job of warden was in 1984, in Hamilton County, Tennessee.

private prison board member

Makes sense… predatorhaven.blogspot.com

It is clear that the mere presence of private prisons has severely hampered any type of progress in reducing the amount of people behind bars. This should be a top priority for the country, since the US has the highest rate of incarceration in the entire world, with more than 1% of the entire population currently behind bars, and an additional 2% of the population on supervision, probation, or parole. That accounts for about 3% of the US population under correctional supervision.

Related Article: Cannabis Cures Cancer and More

By a large margin, the US has the largest percentage of prisoners based on population in the world. The International Centre for Prison Studies at King’s College in London lists some startling statistics:

More than 9.8 million people are held in penal institutions throughout the world, mostly as pre-trial detainees (remand prisoners) or as sentenced prisoners. Almost half of these are in the United States (2.29m), Russia (0.89m) or China (1.57m sentenced prisoners).

This level of imprisonment is a staggering waste of financial resources.

Taxpayers spent about $68.7 billion in 2008 to feed, clothe, and provide medical care to prisoners in county jails, state and federal prisons and facilities housing legal and illegal aliens facing possible deportation. From 1982 to 2002, state and federal spending on corrections, not adjusted for inflation, rose by 423%, from $40 to $209 per U.S. resident. Corrections spending, as a share of state budgets, rose faster than health care, education, and natural resources spending from 1986 to 2001. The average cost of housing a prisoner for a year was about $24,000 in 2005, though rates vary from state to state.

Related Article: War on Drugs Farce Continues Unabated

That gives us some information on the prison system as a whole, but surely private prisons are saving us money. Not at all. In fact, private prisons and jails are  a total loss of revenue.

… the benefit to counties where private prisons are built and operated can be quite scant — some receive less than $2 per prisoner per day from the private prison operator…the federal government agreed to pay CCA [one of the largest private prison firms] almost $90 per day for each detained immigrant at a San Diego facility.

Today, private companies imprison roughly 130,000 prisoners and, according to one group, 16,000 civil immigration detainees in the United States at any given time. As states send more and more people to prison, they funnel ever greater amounts of taxpayer money to private prison operators. By 2010, annual revenues of the two top private prison companies alone stood at nearly $3 billion.

Private prisons are a total loss of revenue, profit from crime while encouraging higher incarceration rates, have no incentive to rehabilitate or reform prisoners, and have no responsibility to the well being of the American people. Maybe it’s time to re-think the privatization of prisons and America’s prison-industrial complex as a whole.

private prison number

Yes, you are just a number, a number that begins with ‘$’. http://www.usprisonculture.com

 

Sources:

http://www.huffingtonpost.com/2013/09/19/private-prison-quotas_n_3953483.html

http://www.huffingtonpost.com/2010/07/31/arizona-prison-break-murd_n_666311.html

http://www.inthepublicinterest.org/sites/default/files/Criminal%20Lockup%20Quota%20Report.pdf

http://thinkprogress.org/justice/2013/09/20/2658701/private-prison-firms-quotas-cells-coffers/

http://money.cnn.com/2010/08/17/news/economy/private_prisons_economic_impact.fortune/

http://reason.org/files/corrections_annual_privatization_report_2010.pdf

https://www.aclu.org/files/assets/bankingonbondage_20111102.pdf

http://www.nola.com/crime/index.ssf/2012/05/louisiana_is_the_worlds_prison.html

http://www.goodjobsfirst.org/sites/default/files/docs/pdf/jailbreaks.pdf

http://www.sentencingproject.org/doc/publications/inc_prisonprivatization.pdf

https://wondergressive.com/news/the-history-and-legality-of-cannabis-use/

https://wondergressive.com/news/war-on-drugs-farce-continues-unabated/

http://www.presidency.ucsb.edu/ws/?pid=2767