Pass the smelling salts: the progressives smell federalism in the air and are swooning faint. Every major intellectual on the left is suffering asphyxiation at the idea people may think someone other than their favorite “expert” in Washington can solve every problem in America – and they just cannot stop writing about it in a pandemic of total panic.

The most recent fainting spell hit The Washington Post’s resident fussbudget Dana Milbank. Those crazy rightwingers of the Tea Party movement actually want to restore the 10^th Amendment to the Constitution. Horrors! From his cozy manse on the Outer Banks seashore, he mused sardonically about “how different things will be here when the South secedes from the Union.”

He expressed concern about a statement from former Congressman Zach Wamp that he hoped voters would send a message in the next election “so that the states are not forced to consider separation from this government.” Somehow the highly-paid journalist could not understand the word “not.”  Texas Governor Rick Perry, former Rep. Tom Delay, Congressman Ron Paul and Rep. Steve King likewise caused the timid soul to fall into vapors by mentioning separation, although none actually endorsed such a proposition.

After initially frightening his fellow D.C. high pooh-bah vacationers to get their attention, Milbank conceded the “Tenthers” actual agenda was “succession’s cousin, nullification.” He was terrorized that a Missouri ballot resolution had passed the previous week by a 71 percent margin, declaring the OmamaCare provision requiring that all citizens purchase government-approved health insurance invalid, and a threat to Missouri citizens’ rights. Milbank took hope that such nullification was tried once before and failed, when South Carolina was forced to retreat before the threatening President Andrew Jackson in 1832.

Milbank claimed that to nullify ObamaCare is to void Article VI: “This Constitution and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.” If people think a law is unconstitutional intoned the Grand High progressive scribbler, all they need to do “is challenge the law in court,” by which he, of course, meant a Federal not a state court, referring to Virginia’s recent case against mandatory health purchases. He did not mention that Virginia had won standing that same week, perhaps missing it far away in the sands of North Carolina. Otherwise, he said, go elect a new president and Congress or pass an amendment to the Constitution.

The good Post journalist did not notice that ObamaCare and all laws must be “in pursuance” of the Constitution and, if not, they are not the law of the land. If ObamaCare or another law is, in fact, not a legitimate power of the Federal government, the 10^th Amendment says, “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.” The issue is not supremacy but legitimacy. Who decides? Amendments do but they are supposed to require three-fourths of the states to agree. Courts? Ask the same President Jackson: he told the Supreme Court: you have made your decision, now try to enforce it.

Who decides? The Constitution does and the Constitution is the separation of powers, not merely the courts. Article III lets Congress limit all appellate jurisdiction of the court and presidents can and do turn a blind eye toward enforcing laws they consider unconstitutional, as did most early presidents against returning slaves and most modern ones on ignoring anti-racial preference decisions. Congress can nullify courts as it did “reversing” the Grove City discrimination case. As the great Yale University political scientist Robert Dahl proved, Congress has in effect over-ridden Supreme Court decisions throughout history. The informal powers are in fact more important than the literal ones.

The states are likewise part of the Constitutional separation of powers no matter how much progressives hate to face that fact. Most Federal programs are in fact administered by the states. Progressives please sit down and take a deep breath. The enforcement of these laws differs greatly by state depending on how important or Constitutional the local officials think they are. Likewise, most Federal court orders are referred back to state courts to enforce and the locals have great discretion in how they respond.  Sometime they delay until things become moot, sometime nullification is more subtle. Wise state officials do not directly confront presidents or courts, no more than Congress does, but what they in fact do both with their own and Federal laws is decisive.

Congress, presidents, judges and all state and local officials take a solemn oath to defend the Constitution but oaths necessarily mean, how those who take them interpret the Constitution, not what someone else tells them it means. This is how the checks and balances actually work. As the Constitution’s “father” James Madison put it “ambition must be made to counteract ambition.” The controlling mechanism was not a single entity such as a court but all institutions checking each other. Sometimes, courts are on top as now, sometimes presidents as in wartime or emergencies, sometimes Congress as in the post Civil War and post Depression periods, and sometimes states—as in the Civil War itself, which in fact was fought between states and the northern ones prevailed.

States are coming back in favor because the national government has failed so miserably. Every progressive remedy has been adopted during the present economic crisis and the unemployment rate stays near ten percent, actually much higher as people despair of even seeking work. Entitlements are exploding and national elites fear even to mention the fact they will bankrupt the nation if some radical changes are not made. Anyone who offers a solution is silenced or ignored or a called Tenther or secessionist. Still, a recent Rasmussen poll found that 59 percent of likely voters say states should have the right to opt out of Federal programs, with a mere 25 percent disagreeing.

State Attorneys General are suing the Feds for ignoring the 10^th Amendment at a rate previously unknown. There is even a movement to repeal the 17^th Amendment. A Firearms Freedom Act has passed seven states and is under consideration in 20 more. Outright nullification measures against the Real ID Act were passed by several legislatures in at least four states. ObamaCare has already provoked seven state sovereignty resolutions. Medical marijuana laws to preempt Federal laws passed in 14 states and, although overruled in California by the U.S. Supreme Court in 2005, Federal drug laws in those states were not greatly enforced during the Bush Administration and have been de facto nullified by the Obama Administration.

From the Virginia and Kentucky resolutions offered by Madison and Thomas Jefferson in 1798, to the New England revolt against the Embargo Act of 1807, to Wisconsin, Kentucky, Massachusetts and others’ de facto nullification of the Fugitive Slave Act of 1850, to the Obama nullification of Gonzales v Raich and the rise of the Tea Party and Tenthers today, nullification is as American as apple pie.

And please do pass the salts again to poor Mr. Milbank.

Donald Devine, the editor of ConservativeBattleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 under Ronald Reagan and is Senior Scholar at Bellevue University’s Center for American Vision and Values.