20 March 2009
 
(Aint’t No) Nullifying Spring

(Refuge Farm's first flowers of 2010)

I went down to the farm on Friday afternoon. I normally like to head down Saturday morning, when the traffic is a little less obnoxious, but I have obligations downtown tonight and needed to talk to Heckle the feral Cat.
 
I looked at the Bluesmobile, the Crown Victoria-based police cruiser that is the manifestation of police presence. Then I looked at the Hubrismobile, dusty and unused since the snows came. The Mercedes is the epitome of grace and severe German engineering. And the top comes down. On this spectacular almost-Spring day, the choice was plain.
 
Top down.


(Hubrismobile in Culeper County Spring)

There were some complications, of course. The battery was dead as a door-nail, discharged over months of inactivity. The silvery depth of its flanks was covered in a film of brown-gray dust. It was barely possible to see through the windshield or out the rear window.
 
Tony gave me a jump off his Cadillac, conveniently parked next to the expired German. The massive V-8 coughed once and then thrummed into life. The washer fluid reservoir was full, and the powerful wipers swept the glass clear. The top operated with its elegant ballet, and the world was clear.
 
My God, what a thing to drive on a day with the sun beating warm for the first time on my skin, the wheel connecting my brain directly to the wide tires, the engine connected direct to my nervous system.
 
I listened with mild disbelief to the nonsense that came out of the sixteen speakers. The Democratic leadership appears determined to work through the weekend and pass the healthcare bill. Speaker Pelosi had a sound-byte expressing boundless confidence that the remaining issues would be resolved, and she “will have a significant victory for the American people.”
 
I suppose that may be possible. If I have a vague opinion on the matter, it is that there should be some single-payer system that eliminates the wild variation of coverage that this bill will not address.
 
Of course that is going to mean that some will lose benefits or pay more in taxes in order to give a new entitlement to others.
 
Of course it means that paying doctors less to contain costs will have the practical effect of rationing care.
 
Of course it means the Federal Government is going to get bigger, and assume more direct control of 17% of the nation’s economic activity.
 
Some are happy to accept those simple truths in the interest of the greater good, as some see it, and others do not.
 
It is hard to figure out exactly what we are going to get. In order to get it passed, the legislation is larded with a bewildering assortment of special interest provisions. In addition to the direct bribes to Louisiana and Nebraska that are contained in the Senate version, it includes the student loan program, home mortgage schemes and immigration law.
 
I think. I am not sure exactly what is in it, any more than the Members do. There is something about abortion- no one appears sure- and the “final” version is going to be available for only 72 hours before the House seems likely to “deem” the bill to be passed.

It seems likely to happen regardless of what is actually in it, and that is what has got people so irritated.
 
The Tea Party movement came from all this. Some dismiss the movement as loons from the right, but look at what has come from the Congress in the last year. It makes you wonder.
 
Because some state governors postured that they might not accept the Stimulus money, Congress added a unique provision, common in passing Appropriations bills over the objections of Authorization Committees. It is a marvelous bit of work that appears never to have been applied to the states before.
 
Subsection 1607(b) of the American Recovery and Reinvestment Act of 2009 states: “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.”

This is not dissimilar to the “deeming” provision that is likely to pass the Health Care act, and amounts to the Federal Government changing state constitutions. Where did this unique power come from?
 
The three branches of the Federal Government has have interpreted (and re-interpreted) the Commerce Clause, the general Welfare Clause and Necessary and Proper Clause of the Constitution in ways that do not appear to have been intended by the Founders so as to justify the exercise of such a power.
 
The framers did not view the Constitution as being elastic. IN addition to specific mention in the Bill of Rights to speech and gun-ownership, the Tenth Amendment is explicit: “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.”
 
I won’t re-do the Federalist papers for you here. Suffice it to say that James “Father of the Constitution” Madison said in Federalist, No. 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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

There is some intent for you, and it is unambiguous. I tend to go with the intent of the basic contract between us and the government, though I will acknowledge that the Founders did not have iPods or the ability to manipulate their own genes. We need to be adaptive and not shackled to immutable tradition. But some things, like liberty, are not mutable.
 
The response to the startling centralization of power in the Congress features the Tea Party folks, but also the State Legislatures.
 
The concept of nullification has a long history in America, and a recent one, too. Ask the O.J. Simpson jury about it. And the lawmakers in a bunch of states.
 
Florida is the 37th state where bills amounting to “nullification” of federal law have been considered. So far, seven states have had both houses of their legislature approve a sovereignty resolution, while three states have rejected them.

(Political Cartoon Depicting President Jackson in the Great Tariff Nullification Crisis)

We have been down this road before, of course. James Louis Petigru once famously observed that “South Carolina was too small to be a nation and too large to be a lunatic asylum.” Some residents there are proud that they live in the only state to have seceded from the Union twice. We know about the second time, and the issue at stake.
 
The first time was the “nullification crisis” during Andrew Jackson’s presidency, when South Carolina attempted to void, within the state, federally mandated tariffs. That battle ended in a compromise, which in a peculiar way, validated nullification as a viable tactic against Washington.
 
You would have thought that the Civil War would have put an end to the concept, but the 10th Amendment was never repealed and there it is, even as the Feds as usurped more and more authority.
 
The Segregationists improperly adopted the “States Rights” movement to repress basic Constitutional rights of some of their citizens. That was properly put down with legislation that ensured equal access to the polls and other public accommodations.
 
But the argument over the 10th Amendment is back, big time.
 
It is pretty crazy out there in the real America. Under the rubric of the “10th Amendment Movement: There are current efforts to nullify Federal laws on firearms, the REAL ID mandate to standardize state driver’s licenses, use of National Guard units in Federal service, Health Care and Medical Marijuana.
 
The other deal is the fact that the States are broke. The economic crisis has gutted revenues even as need has expanded. We in Virginia facing a $4 billion dollar shortfall in the Budget; California and Arizona are effectively bankrupt.
 
For the Feds to step in and fill the gap, either taxes have to go up dramatically or the deficit will to continue to balloon. There is a limit there, as the Chinese are well aware. At that point the matter will have everyone’s full attention, since there are not enough rich to be soaked to pay the common bill.
 
The Legislature of Oklahoma is on record as saying that it is not interested in subsidizing Senator Nelson’s constituents in Nebraska for trips to the doctor, and hence, the Federal health Care Act will be null and void within its boarders.
 
It is only a matter of time before some desperate legislature will decide to legalize marijuana, not for medical purposes, but to tax it.
 
So we are in for some interesting times, aren’t we?
 
Walking in through the gate at the Farm, I saw Heckle waiting on the porch for her entitlement of tuna, and looking down I saw the first flowers of Spring at my feet. I had to stop and take a picture of them, they were so pristine and lovely.
 
We will do what we must. With so much uncertainty, it is good to know that there is no nullifying the imperative of the soil.
 
Copyright 2010 Vic Socotra
www.vicsocotra.com
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