Priority of the Supremacy Clause
Article VI clause 2 (The Supremacy Clause) establishes that the only unqualified "supreme Law of the Land" is the Constitution itself. No "law" is above it, not federal enactments, not treaties, not international law.
Federal enactments only rise to the level of "supreme Law" if the enactment is made "in Pursuance" of the Constitution. In "Pursuance" means the enactment, if a bill, satisfies the procedural requirements of the Constitution i.e., both houses of Congress pass the bill before it goes to the President and appropriation bills start in the House. And, the bill satisfies the substantive requirements of the Constitution. This means a bill relates to and is within the scope of one of the enumerated powers of the general government.
No Unconstitutional "Laws" only Null Enactments
If the procedural or substantive Constitutional prerequisites are not met, then the federal bill does not become part of the "Supreme Law of the Land." This principle was espoused in 1803 by the U.S. Supreme Court in Marbury v. Madison. In fact, the Marbury Court tells us this is a rule of Constitutional law which predates our Constitution and the colonies.
The courts, including the Supreme Court, have issued scores of decisions on this issue. These decisions tell us such an unconstitutional "enactment" never becomes law and it is void "from its inception" such that it never becomes "law".” Such unconstitutional "enactments" never establish any right, convey any privilege, and are never enforceable.
Note, that there is no such thing as an unconstitutional law. The phrase "unconstitutional law" is an oxymoron. "Law" is a term of art which presumes that an "enactment" is constitutional and therefore enforceable. But, no "enactment" can become "law" unless it is first and foremostly constitutional.
We can say that an unconstitutional "enactment" has the "color of law" but we cannot say it is "a law" or "the law" because that is a legal impossibility under principles of constitutional law, which is also noted in Article VI, clause 2 of our Constitution. "Color of law" means something that has the outward appearance of legal authority when in fact it has no legal authority. One cannot "nullify" an unconditional "enactment" because it is automatically "nullified" under Article VI clause 2.
A State and State Officers' Response to Unconstitutional Enactments
So, what can or should or must a state do about an unconstitutional enactment? The answer comes from two sources. The first source is the Constitution and the other is the, ancient, inherent principle of sovereignty which applies to all the states.
Oath to Support the Constitution
First, under Article VI, clause 3 every judicial, legislative and executive officer (except the U.S. President) is required to take an oath to "support" the Constitution. The President's oath says he/she must "preserve, protect and defend" the Constitution. (Art. II §1 clause 8).
The terms "preserve", protect" "defend" and support" are all synonymous terms. There is no difference in the duty of the President and other governmental officers, state or general. (The general government is that which operates out Washington D.C. The states are part of the "federal "government", as is the general government, but the general government is not part of the state governments.)
Officers Required to have Working Knowledge of the Constitution
Implicit in this constitutionally mandated oath to "support" the Constitution is that the oath taker should have a working knowledge of the Constitution. If one does not understand the Constitution and the principles of federalism under which our Republic was founded they cannot effectively "preserve", protect" "defend" and "support" the Constitution.
Nature of the Oath to Support
This oath is affirmative, active, personal, and perpetual. This means one, under the oath, cannot defer to someone else's judgment or put off making a determination as to whether an "enactment", is, or proposed "enactment", would be, unconstitutional. It also means they may not propose, sponsor, support, vote for, or enforce any unconstitutional enactments.
In fact, because the oath is active and affirmative, they are duty bound to resist any effort by others to propose, sponsor, support, vote for or enforce an unconstitutional enactment. The failure of, such, an oath taker to act to resist an unconstitutional proposal or enactment is as much of a violation of their duty as would be an affirmative act to promote or enforce an unconstitutional enactment. This oath is not limited by political or geographic boundaries. This is part of federalism.
Allegiance and Protection
Secondly, under the sovereign principle of "Allegiance and Protection", the state sovereigns have an absolute, unqualified duty to protect the fundamental rights of their citizens from infringement. Under the American system of government another way to say this is that the states have a duty to ensure the continuity of the people’s sovereignty. This means protection from any infringement from any source, including the general government. This also means that, if an infringement is occurring or is imminent, the state must stop the infringement and/or interpose between the potential infringer and its citizens.
The enforcement of an unconstitutional enactment would be such an infringement.
Interposing is not "nullification" and it is not constitutionally based.
"State Nullification" is at State Discretion, Duty to Interpose is Not
Besides "state nullification" being a legal impossibility, there is another problem with those who seek to apply this myth. "State nullification", under this theory, is at the discretion of the state. This means if "We the People" want the state to "nullify" an unconstitutional enactment (which presupposes it is a "law" and enforceable) we are suppose to talk or coerce our state officers into passing laws "nullifying" the offending enactment.
Under "Constitutional nullification," the nullification is automatic, which means the state officers have no option; they are duty bound to resist such unconstitutional enactments whether the officers or the citizens want to resist them or not. Likewise, under the principle of "Allegiance and Protection" state officers are duty bound to interpose to protect us from unlawful activity such as an attempt to enforce an unconstitutional enactment. This requires them to resist, violently, when necessary, to stop the infringement.
Case Study on State Nullification
Let's look at a real life scenario to see how the above plays out, in actuality.
Kansas Second Amendment Preservation Act
The, recently, passed Kansas Second Amendment Preservation Act (KSAPA) wrongfully, but implicitly, recognizes the general government's authority to regulate firearms that have entered the stream of interstate commerce, either before or after, they are sold at retail. This Act seeks to "nullify" some unconstitutional federal regulations by asserting that the Federal government's unconstitutional application of such unconstitutional Federal regulations doesn't apply to firearms that are made in Kansas and never leave Kansas i.e., does not apply to "non-Kansas" firearms.
This Act, also, wrongfully recognizes that the general government has the constitutional authority to regulate our personal interstate travel if we are carrying a firearm. To my knowledge the general government has never asserted such authority. This is, simply, a bonus the State of Kansas attempted to give the general government.
The reality is that the general government has, absolutely, no authority to regulate firearms [ARMS] at all. Therefore, KSAPA is unconstitutional in that it is promoting a concept that is unconstitutional (i.e., the general government has the constitutional authority to regulate the people’s access and bearing of firearms, at least, in some situations).
Supporting KSAPA was a Violation of the Oath to Support
Every state legislator that proposed, supported, or voted for the KSAPA violated their constitutional oath to support/protect the Constitution, as did the Governor for signing it. The fact that some of them may have done this out of ignorance is no excuse. Remember, they have a duty to have a working knowledge of the Constitution under their oath to support/protect the Constitution.
Some attempted to justify this on incrementalism (i.e., the argument is even though they violated the Constitution, they gained something). First, those of us under the oath to support are not given discretion to violate the oath or the Constitution when in our opinion it gives us a "gain." That leaves the Constitution open to the whims of men, not the rule of law.
That is what our public servants are doing now - violating the Constitution when in their opinion it serves our "collective" best interests. If all had stood on their oath we would not be in this situation. If all would stand on their oath, our troubles would soon be over.
Incrementalism is like negotiating with cannibals about how much of you they will eat for dinner. No matter how the negotiations go, you lose and once it is gone it is gone for good.
Supporting KSAPA was a Violation of Allegiance and Protection
In addition, the KSAPA violated the principle of "Allegiance and Protection" by prohibiting the state officers, including law enforcement, from interposing themselves between you and the general government in the event the general government sent agents into the state to unconstitutionally arrest you or take your firearms. This duty is absolute! Every legislator that voted for this act, also, violated their sovereign principle.
What's in a Word? - Everything!
I have been told "...the Constitution does not limit firearms in any manner." It is more correct to say, and more to the point to say, it prohibits the general government from regulating "Arms" (not just firearms), in any manner. The Constitution does not give us any rights nor does it restrict our rights.
In fact, the concept of restricting rights is an oxymoron. We must learn to be more careful with language and concepts. It is in large part through chicanery that our rights have been infringed.
Protect Persons vs. Securing Rights
I was recently at a Boy Scout merit badge class. The instructor told the scouts that the first priority of a government is to protect its people. This is absolutely false under the Founders' system of government. "...[G]overnments are instituted among men..." "... to secure [the people's fundamental] rights..."
There is a subtle difference between protecting a person and securing one's rights but it is a distinction of immense importance. The NSA is violating every Americans' liberty [unconstitutionally] by spying on every American to "protect" them. In fact, it is very hard to protect anyone without limiting their Liberty, which is one reason why the founders wrote the 2nd Amendment to make clear the general government has no authority over the people’s ability to "keep and bear Arms..."
The government protects people by taking away their Liberty to choose if they will eat salt, buy bigger than 16oz soda pops, eat trans-fats, use an incandescent light bulb, wear a seatbelt, or use a helmet when riding a motorcycle. It also seeks to protect us by taking way our right to "keep and bear Arms" and regulating our property to the extent our "ownership" interest is a hollow shell. Taxes on real estate are no more or less than feudal rent.
In fact, the Supreme Court has ruled that the government has no duty to protect our person. That means a police officer has no duty to you to protect you. If a police officer refuses to respond to your call for help you cannot sue him nor can be criminally prosecuted…of course, he may be fired but is not, legally, required to protect you.
Kansas' History in Arms Regulation
Kansas has a long history of being antagonistic to the people's fundamental right to "keep and bear Arms". Remember Huelskamp's Constitutional amendment to clarify the right to "keep and bear" was not a collective right for purposes of the militia. Very good man!
Kansas recently expanded the people’s privilege to be armed with a knife. Yet, the State still considers such to be a privilege, rather than a right, that Kansans have the liberty to freely exercise. By doing so, it may have done more damage to our right in the long run. Licensing of firearms is the recognition of a "privilege", not a "right", as is providing a privilege to carry a knife.
Presidential Executive Orders
What about presidential executive orders (PEO)?
NO LAW IS ABOVE THE CONSTITUTION!
Article VI, clause 2 applies to PEOs as well. As long as EO’s are used to administrate the executive department they are lawful. But, if they start creating "laws" including to modify laws, they violate at least Article I §1, §7 clause 2, Article II §1 clause 8 and Article VI clause 2. If they are being used to not enforce laws they violate Article II §1 clause 8 and Article VI clause 2. Any such PEO is, automatically, nullified under Article VI clause 2.
Anyone that carries out such a PEO is in violation of their oath to protect the Constitution. Their oath is to God and their duty is to the American people, it is not to the President. We learned, at Nuremberg, that the excuse "I was just following orders" does not fly. That rule is alive and well in America, if we would only enforce it.
Incompetent Public Servants and Popular Myths
The issue of "nullification" is so fundamental to our Constitution it is unbelievable that so many politicians (and patriots) do not understand it. When politicians vote in support for such things as the KSAPA they are in violation of their oath to protect the Constitution. Such shows they do not have a working knowledge of the Constitution.
Most believe that the "Supremacy Clause" means all federal enactments override state law and all federal enactments are "law" until a federal court or even the Supreme Court says otherwise. Both of these beliefs are absolutely false and inconsistent with federalism.
Only the Supreme Court has jurisdiction over the states. This is recognition of the states’ sovereignty. (See Article III, § 2, clause 2) When our Attorney General joined the Obama Care lawsuit in Florida he violated his oath to support the Constitution and diminished Kansas' sovereignty. He told me, he knew he could go to the Supreme Court but felt that it would be too costly. This was incorrect.
Most do not understand that the States can never be required to enact particular legislation by the general government nor to participate or administrate in any federal program. If we are in bed with the general government, it is because our elected state officials voluntarily put us there, at some point. A better analogy is that our state officials are in bed with the general government, in part, for access to "federal" dollars they can use to buy the favor of corporate cronies. This spawns neo-fascism.
Who is to Blame?
These issues all relate to foundational and fundamental principles of the Republic. Public servants cannot begin to uphold their oath to protect the Constitution unless, and until, they understand these principles.
Still the ultimate fault for the demise of the Republic is on "We the People" for not holding our public servants accountable. Collective guilt is no guilt and a collective responsibly is no responsibility. We are, individually, to blame.
Our patriotic duty and moral duty to the Republic (and each other) is a personal responsibility. We do not get credit for what someone else does, nor do we get demerits for their bad actions or inaction. Our duty is not diminished because no one else is doing their duty nor because we don't think we can make a difference. This is when faith and courage come in. Americans used to have faith and courage. Now they just hope for change.
Fallacy of an Article V Convention
This is why an article V amendment convention won't work. It will not cause those who are violating their oath to stop violating their oath and it will not cause Americans to fulfill their individual duty. In fact, it will do quite the opposite by perpetuating the citizens' ignorance and lack of involvement. That, my friends, is a very dangerous thing.
Until the majority of citizens commit to being November Patriots, who vote, not for a party, but in support of the Constitution and our Liberty, nothing will ever change. Voting for the lesser of two evils which, certainly, is not a Christian principle and supporting "incremental" improvements, which violate the Constitution, have caused us to detour from the road God put us on, onto the road to perdition. It will take courage and faith to get us back on the right road – Your faith and Your courage...
Richard D. Fry
Co-founder - Defend Not Amend