Nullification In One Lesson
Note: If you do not find the title of this article presumptuous, it is probably because you are unfamiliar with Henry Hazlitt’s classic: Economics in One Lesson. My intention was not to be presumptuous, but rather tongue-in-cheek. However, I want to bring to your attention a book coming out this June, that in all seriousness could have been given the same title as my article. New York Times bestselling author, Thomas E. Woods, Jr., is working on his latest book, the title of which will be: Nullification. I can’t wait!
The True Nature of the Union:
Some of today’s most brilliant patriots may be mistaken when they assert that the states created the federal government. However, it all depends on what they mean by “the states”. If they are using the word “states” as shorthand for the people of the several states, as opposed to the American people in aggregate, then they are correct. If by the term “the states” they mean the legislatures of the several states, then they are incorrect.
“It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations.” –Thomas Jefferson to Spencer Roane, 1821.”
A New Form of Government: Federalism
Acting in their highest capacity, as sovereign political societies, the people of the several states ratified the US Constitution and gave life to the newly created federal government. The people of the several states, NOT the American people as a whole, acted by, with and through the special ratifying conventions, which they convened in their separate states. In these special conventions, which deliberately bypassed their state legislatures, they delegated a few, carefully defined powers to the federal government. These powers were enumerated in the US Constitution.
They had already delegated numerous and indefinite powers to their state governments, which were enumerated in their respective state constitutions. The majority of powers, however, they retained for themselves, reaffirming the hallowed American tradition of self-government. Although these principles were already contained in the structure of the original Constitution itself, the 9th and 10th Amendments of the Bill of Rights expanded upon and clarified them beyond any reasonable doubt.
In summary, both state and federal governments derive their powers directly from the people of the several states. In ratifying the Constitution, then, they established a system of dual-sovereignty, in which the state governments and federal government are co-equal.
Even before the Constitution was ratified, James Madison reassured the anti-federalist skeptics that this system of dual sovereignty would protect their rights. He wrote:
“Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” (The Federalist # 51)
We must never forget that our state governments are charged with the duty of controlling the federal government. To do so would be to ignore “one of the Constitution’s structural protections of liberty.”
The 10th Amendment:
Thomas Jefferson considered the 10th Amendment to be the cornerstone of the Constitution. He wrote:
“I consider the foundation of the Constitution as laid on this ground:
That ‘all powers not delegated to the United States, by the Constitution,
nor prohibited by it to the States, are reserved to the States or to the
people’ [10th Amendment]. To take a single step beyond the boundaries
thus specifically drawn around the powers of Congress, is to take
possession of a boundless field of power, no longer susceptible to any
“The true barriers of our liberty in this country are our State governments; and the wisest conservative power ever contrived by man is that of which our Revolution and present government found us possessed.”
Usurpation: When the line is crossed
“I have always thought that where the line of demarcation between the powers of the General and the State governments was doubtfully or indistinctly drawn it would be prudent and praiseworthy in both parties never to approach it but under the most urgent necessity.” –Thomas Jefferson
When the federal government steps beyond the boundaries that are specifically drawn around it by the Constitution and the Bill of Rights, it isn’t abusing powers that it DOES have, it’s usurping powers that it DOESN’T have. What should our reaction be to federal usurpation?
Vote the Bums out?
If a branch of the federal government abuses a power clearly delegated to it by the Constitution, that is, one which can be found among the enumerated powers listed in the articles of the Constitution, then there is a clear remedy:
Change the people who make up the federal government at the time of the next election.
However, if one or more branches of the federal government USURPS a power not delegated to it, that is another situation altogether! If the federal government usurps one of the powers retained by the states or the people (violates the 10th Amendment), then this calls for much more swift and resolute action on the part of the states! In such cases, we must NOT exercise patience and wait to “Vote the bums out” in 2012 or even 2010!
Submission, Revolution, Secession or Nullification?
When Congress or the President usurps — that is to say, when either or both of them exercise a power NOT delegated to the federal government by the Constitution, the people of the several states and their representatives in state government have four choices:
1. They can submit to the act of federal usurpation for the time being and wait until the next election, with the hope that they may elect new people to federal government who will discredit and repeal the act of usurpation.
2. They can exercise their right of revolution and and alter or abolish the federal government.
3. They can peacefully withdraw from the Union — which was created after all, by the people of the several states.
4. Or, they can demand that their state government arrest the progress of federal usurpation by an act of nullification.
“The several states composing the United States of America are not united on the principle of unlimited submission to their general government”
“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
Nullification is a state’s decision to render a particular federal law that it deems unconstitutional void and inoperative, or non-effective, within the boundaries of that state.
Weighing the Options:
Advantage: Requires no courage or sacrifice; Avoids confrontation; Ensures federal funding will continue to flow.
Disadvantage: Invites more usurpation; Incremental loss of liberty and state sovereignty; Higher taxes in most cases; Federal funding may become unreliable; Even if we were able to “clean house” and clear Congress of every bad incumbent (unlikely), the new representitives may not keep their promises or might be unable to implement real reform — Remember the Republican “Contract with America”? Remember Scott Brown’s campaign promises? How that working out for you?
Conclusion: Unacceptable option.
Advantage: Overturns usurpation and discourages future acts of usurpation.
Disadvantage: Dangerous because it risks more social chaos and economic hardship than minor acts of federal usurpation themselves create; Revolution risks life, property, prosperity and the stability of the social order.
Conclusion: Drastic, irresponsible option for all but the most intolerable acts of usurpation and tyranny.
Advantage: Defensive; May avoid violent confrontation with the federal government; Prevents future acts of federal usurpation and tyranny; May unleash greater liberty and prosperity; Frees the state from burdensome obligations and dangerous risks tied to the old regime.
Disadvantage: Avoids, or “runs away from” the problem; Too rash a solution for most acts of federal usurpation; Temporary social and economic disruption.
Conclusion: Unwise, rash option for most acts of federal usurpation.
Advantage: Avoids all the disadvantages of the other three options; Confronts the federal government in a moderate but firm manner; Enlightens and educates the people of the several states; Preserves the Union AND federalism.
Disadvantage: Requires state legislators who understand federalism and the original meaning of the Constitution.
Conclusion: Nullification is the moderate, constitutional remedy for unconstitutional federal behavior.
What if the federal government tries to overrule a state’s act of nullification?
The two most recent cases of successful nullification involve resistance to the federal REAL ID Act and federal prohibition of medical marijuana. Space does not permit a lengthy treatment of all the states that have nullified federal REAL ID and federal marijuana laws. But whatever your opinion is about these issues, two things should be clear: Nowhere in the Constitution is the federal government authorized to regulate plants that remain within the boundaries of a state or demand that state drivers licenses conform to federal specifications. These are state issues, period.
So to make a long story short, in both cases, the federal government has backed off. When state governments refuse to cooperate, the feds recognize that they simply do not have the resources or man power to enforce their unconstitutional laws.
But what if the feds don’t back off when states use nullification to neutralize other unconstitutional federal laws, such as intrastate firearms regulation, federally mandated health insurance or Cap and Trade?
Here’s what Michael Boldin, the founder and director of the Tenth Amendment Center, has to say:
“Ultimately, however, nullification is much more than mere rhetoric. To nullify a federal law in practice may require active resistance on the part of the people and their state government.
In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:
‘That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.’
Here Madison asserts what is implied in nullification laws – that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are ‘duty bound to interpose’ or stand between the federal government and the people of the state.”
In the unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defiance of unconstitutional federal laws, will that state’s government have the courage to hamper or even neutralize such extra-legal measures?
There are a whole host of peaceful actions that a state government can adopt if that day comes or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s Department of Revenue.
The sheriffs in this country are indeed the ultimate law enforcement authority in their respective jurisdictions. The sheriff has the power and responsibility to defend his citizens against all enemies – foreign and domestic. Former two term county sheriff Richard Mack has pointed out many times that the sheriff may be America’s last hope.
Doesn’t Federal Law Trump State Law?
Yes, but only when the federal law in question is pursuant to one of the federal government’s enumerated powers. A federal law or other measure that exceeds the limited powers delegated to the federal government by the Constitution is simply an act of usurpation. In short, it’s not a law at all.
The principles first articulated by Jefferson and Madison in the Kentucky and Virginia Resolutions came to be known over time as “The Principles of ’98”. They were invoked by many states, north and south, for a variety of issues, all throughout the nineteenth century. These issues involved everything from states’ claims of unconstitutional embargoes (1807-1809), conscription for The War of 1812, the Second Bank of the United States (1825), and the Fugitive Slave Act of 1850.
Today, the Principles of ’98 have been rediscovered and are again being invoked to confront everything from Congressional “Commerce Clause” abuse (CCCA) to Cap and Trade and unconstitutional Legal Tender Laws.
Here’s to the republic, the rights of man and the Principles of ’98!
Copyright © 2010 by Derek J. Sheriff