Nullification - Its Early History
Thomas Jefferson wondered how the country would respond in the case its government passed a law that was clearly unconstitutional. As Secretary of State under our first president, George Washington, he already witnessed the wheels of government try to enlarge provisions in the Constitution to give the administration unchecked powers to tax and spend. Washington would establish the first National Bank. Jefferson knew the trend would continue. And it did. Our second president, John Adams, signed the Alien & Sedition Acts into law, which were laws addressing the Quasi War (undeclared) with France at the time. The French Revolution just killed off the monarch and his family and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants and Americans were split in their support of the old French system or the new republic. Although the Alien Acts (3 of them) were offensive, it was the Sedition Act that was most glaringly so. The Sedition Act made it a crime (fines and jail sentences) should any person
"write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States...." The Constitutional red flags went up at once. The immediate violations jumped out to men like Jefferson and Madison, and many others. While the Alien Acts violated the 10th Amendment and the Due Process clause of the 5th Amendment, the Sedition Act was a blatant violation of the 1st Amendment and its guarantee of Free Speech (most importantly, political speech!) John Adams, a Federalist, saw nothing wrong with any of the laws. Neither did his Federalist co-members of government or his Federalist judges. Thomas Jefferson, the Vice President at the time (since he got the second highest votes in the election of 1796) wasn't a Federalist. He was a Republican-Democrat (a party he founded). [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!]. The Checks and Balances didn't work. Political power was more important than the rights the government was created to protect!
And so, convictions quickly followed. Journalists, publishers, and even congressmen were fined and jailed. Not a single person targeted was a Federalist. The only ones targeted were Republicans. The men who wrote our founding documents - Jefferson and Madison - began a series of correspondences to discuss what should be done to prevent such unconstitutional laws from being enforced on people who had a rightful expectation of exercising the liberties promised in the Declaration and in the Bill of Rights. (And of course they had to be very careful lest they be convicted under the law!) Jefferson saw that there are 3 possible remedies when a government tries to enforce unconstitutional laws.. (1) Seek an opinion from the Judiciary; (2) Secession; or (3) Nullification. Jefferson advised against the first two remedies. He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the President were not required to abide by its ruling. Furthermore, the courts were all Federalists at the time and were part of the problem!. Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but said it was far too extreme and every effort should be made to keep the union together in a workable fashion. The third option, he said, was
"the rightful remedy." Nullification, he said, was the remedy inherent in the states' ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union. Madison agreed.
Nullification is the doctrine which states that any law that is made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials - federal and state. When the government passes a law pursuant to its powers, it is supreme and binding. Every level of enforcement recognizes the law. States are obligated to uphold it and help enforce it. An example are the federal immigration laws. When the government passes a law that it has no authority to make - such as the Sedition Act, which offends the 1st Amendment which is a strict prohibition on the government with respect to individual speech (political speech) - then in terms of legality, the law is null and void. For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws). Since the law is null and void, no enforcement agency should force the law on the people. Government will never admit its law is unconstitutional or unenforceable and so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced. The states are the rightful parties to stand up for the people against a tyrannical act of government. When the government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People (see the 10th and the 9th Amendments). Every party must always jealously guard its sphere of government; it's bundle of rights. States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.
Well, immediately, Jefferson and Madison got out their pens and drafted the Kentucky Resolutions of 1798 and of 1799 (Jefferson, for the Kentucky state legislature) and the Virginia Resolutions of 1798 (Madison, for the Virginia state legislature). Both states passed them, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states. The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.
In the Kentucky Resolutions of 1798, Jefferson wrote:
Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes - delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
In the Kentucky Resolutions of 1799, he wrote:
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy......
In the Virginia Resolutions of 1798, James Madison wrote:
RESOLVED....... 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.
Nullification is a founding principle. And it will continue to be such. Just because certain people claim it is not a legitimate principle and not a legitimate remedy does NOT make it so. They simply wish it weren't the
"rightful remedy."
The Legal & Doctrinal Basis for Nullification
The doctrine of Nullification is extra-constitutional, which means since it is not addressed in the Constitution, it is a supreme fundamental principle; it supersedes the Constitution. Its basis is found in various laws and legal foundations:
- Federalism
- Basic legal theory
- The Tenth Amendment
- The Declaration of Independence
- The Constitution - and the Supremacy Clause (Article VI)
- Compact Theory
- Agency Theory
- The Kentucky Resolutions and the Virginia Resolutions
1. Federalism. Federalism is simply the government structure that pits Sovereign against sovereign; rather, it divides power between the sovereign States and the sovereign federal government (each are sovereign in their respective spheres of authority). The government's powers are expressly delegated in the US Constitution. All other areas of authority are reserved to the States. Federalist No, 45 goes into detail about the general character of this separation of sovereign power. The belief was that each sovereign would forever jealously guard its sphere of authority. Federalism is the last and most critical in our government's system and series of Checks and Balances.
In
Federalist No. 45, James Madison explained in clear terms the intended division of power:
"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States."
2. Basic Legal Theory: A body can only make laws where there is proper legal authority to make such laws. If there is no legal authority, the law is null and void from the start. This is Natural Law. Governing power arises from somewhere. The Declaration tells us that it derives from the Individual, endowed from God. When individuals organize into societies, they delegate some of their power to a common government, for the benefit of all living in that society.
Laws are enforceable when they are passed by an authorized legislature and signed by an executive. (They must be vetted by the checks and balances system). Furthermore, the legislature must be vested with the proper jurisdiction (authority) to make the particular law (That is, it must be able to legislate in the particular area in the first place). Authority is granted by a constitution or other governing document, stating exactly what the governing body can do.
QUESTION: Can the school system get permission from my neighbor to have my child treated by a doctor? Can the state of Virginia make a law lowering the speed limit on NC highways?
I'm the mother of 4 children. I have the legal right to determine and direct the upbringing, education, and care of my children. When my son has a form sent home from school asking for permission to go on a trip that might expose him to harm, it is I who has the legal authority to give that permission. Not the school, not the principal, not a neighbor. The reason I can give permission and the reason it is understood as valid is because I have the legal authority to make the decision on behalf of my son. If someone else gives permission or signs the form... You know what happens. The school would not honor it. Legally, it cannot honor it. [This is nullification. Any act of a governing body or individual outside delegated authority is null from the start].
A policeman can't make laws about who should be detained or arrested or have property seized. He can only execute and enforce laws that have been approved by the legislature - a law-making body, vested with law-making powers. If that policemen should try to make law, that law would be unenforceable on citizens. [Again, this is nullification. A law without a legal basis is void and unenforceable].
