James Madison - ThisIsCommonSense.org

Madison on Perpetual War

“Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.”

—James Madison, Political Observations, Apr. 20, 1795 in: Letters and Other Writings of James Madison, vol. 4, p. 491 (1865)

As the federal government lurches further out of control, wildly grasping to increase control over our lives, an old and controversial method of reining in our central government gains popularity: State nullification of federal law.

A recent Rasmussen survey asked whether “states have the right to block any federal laws they disagree with on legal grounds,” and 38 percent of likely voters surveyed said “Yes.”

Cutting to the quick of the Commerce Clause, a new Kansas law — Senate Bill 102, the Second Amendment Protection Act, signed by Governor Sam Brownback last month — states that firearms manufactured and owned in Kansas that do not cross state lines are not subject to federal law.

Of course, the Supreme Court thinks otherwise. In Wickard v. Filburn, the Court allowed the federal government to regulate darn near anything on the grounds that any conceivable act of consumption affects demand, and thus “commerce.” Goofy ruling? Yes. But by tradition it’s the Supreme Court justices who get the final word.

Yet even that has been denied by many constitutional theorists, including Thomas Jefferson and James Madison — “Mr. Constitution” himself — both of whom supported nullification, as recently explained by historian Tom Woods. No compact joined into by multiple parties may only be interpreted by one of the parties alone, unless specified to that effect. The Constitution doesn’t even mention judicial review, so the tradition of the Supreme Court’s final word is itself a matter of dispute.

Standing up for the status quo, Attorney General Eric Holder has written to Brownback against the new Kansas law, citing the Supremacy Clause. Problematic? Yes. But not easily dismissed.

Brownback has volleyed back.

At least we can expect the old issues of constitutional law to gain a new and lively hearing.

This is Common Sense. I’m Paul Jacob.