This article comes from the Tenth Amendment Center.
A good place to start in determining how to enforce the Constitution is with the guy who’s commonly referred to as the “Father of the Constitution.” While there’s some debate that James Wilson was actually far more fitting of that title, Madison was obviously quite influential.
The essential question: When the federal government violates the constitution, what do you do about it?
Here’s what Madison had to say in Federalist #46. The Influence of the State and Federal Governments Compared:
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Let me translate. Madison said that when the federal government passes an unconstitutional measure there are powerful methods to oppose it – amongst the people and in the states. He also pointed out that those methods were available even for warrantable, that is constitutional, measures.
Madison told us of four things that should be done to resist federal powers, whether merely unpopular, or unconstitutional.
1. Disquietude of the people – Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That leads to the next step.
2. Refusal to co-operate with the officers of the Union – Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
3, The frowns of the executive magistracy of the State – Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action.
4. Legislative devices, which would often be added on such occasions – Madison keeps this open-ended, and in the years soon after, which I’ll cover shortly, we learn how both he and Thomas Jefferson applied this step.
Madison also told us that if several adjoining States would do the same it would be an effective tool to stop federal acts. To repeat, he said that doing this “would present obstructions which the federal government would hardly be willing to encounter.”
Judge Andrew Napolitano agreed recently and said that people need to stop enforcing unconstitutional federal laws. He also said that if you could get an entire state doing this, it would make federal laws “nearly impossible to enforce.”
What’s important to note here, are some glaring omissions. The powerful means that Madison told us would be used to oppose federal power successfully did NOT include federal lawsuits in federal courts. He also did NOT include “voting the bums out” as a strategy, either.
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