ECO 481: Public Choice Theory Week 14: Nullification Dr. Dennis Foster

Constitutionalism Government’s authority derives from the people. Limits to government are implicit or spelled out in a constitutional document. U.S. government one of “limited and enumerated powers.” "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent . . . that principle is now universally admitted."

Article 1, Section 8 Congress shall have the power to . . . Collect taxes. Provide for the common Defence. Regulate commerce. Coin money Establish Post Offices. Declare War.

Nullification - Basic Issues Do politicians even accept the idea of a limited government? Electoral approach to limiting government has been a failure. Can we trust the federal courts in this matter? Should the federal government have a monopoly on deciding constitutional questions? Are you serious? Are you serious? I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens. In questions of … power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Nullification - Marijuana Gonzales v. Raich; ruling of 9th Circuit Court: “Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.” Spillover effects? --Alabama/Mississippi/LA Supreme Court & Thomas dissent.

Nullification: What the Constitution Says In its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in Congress. General welfare clause What’s the point of listing powers? [Madison] Does Congress promote “general” welfare? Commerce clause Making commerce “regular.” Contortions on gun-free school zones. Necessary and proper clause To build the buildings, need to order lumber.

Nullification: What the Constitution Says 10th Amendment as a reinforcement of federal limits. Why was that necessary? 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.

Nullification: What the Constitution Says 10th Amendment as a reinforcement of federal limits. Why was that necessary? A “living” constitution is not a constitution. How can it “shackle” politicians? The Jeffersonian “rightful remedy” of state nullification or “interposition.” It is the duty of the state!

Nullification - History Historical uses: --Alien & Sedition Acts --Embargoes --”Tariff of Abominations” --Conscription --Enlistment of minors --Internal improvements --Fugitive Slave Act --Use of state militia --Second Bank of the U.S.

Nullification: Running out of remedies “National” vs. “compact” theory of Union. How does the U.S. get bigger? What does “more perfect union” refer to? The degeneration into the “modern state.” The 17th Amendment as a crucial blow.

Article I, Section 3: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” 17th Amendment: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”

Nullification: Running out of remedies “National” vs. “compact” theory of Union. How does the U.S. get bigger? What does “more perfect union” refer to? The degeneration into the “modern state.” The 17th Amendment as a crucial blow. Is constitutional change really possible?

ECO 481: Public Choice Theory Week 14: Nullification Dr. Dennis Foster