Nullification and the Myths | Eastern North Carolina Now

    The essential goal behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government were to be permitted the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow - regardless of elections, the separation of powers, and other much-touted limits on government power. A constitution is, after all, only a piece of paper. It cannot enforce itself. Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people. Recall how Congress worked with President Obama to push the healthcare reform bill, knowing full well it was an abuse of the Commerce Clause power.

    [It should be noted that the Supreme Court continued unabated on its course to consolidate great power in the US Congress. Even after Jefferson's attempts to hold the Supreme Court to a strict construction of the Constitution, in 1819 in the landmark case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Court supported a liberal reading of one of its critical clauses. That case involved a Maryland law that taxed all banks in the state. The government had chartered a National Bank, which had a branch in Baltimore. Maryland taxed the Bank but the government refused to accept the tax, claiming it was exempt and that Maryland was interfering with the legitimate function of the government. Maryland challenged the legitimacy of the Bank claiming that the government had no power to create one. Chief Justice John Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the National Bank, the "Necessary and Proper" Clause should be read broadly enough to provide the basis for Congress's action. In that decision, the high Court ignored the meaning and intent of the "Necessary and Proper" Clause as explained by James Madison, the author and drafter of the Constitution and instead chose to accept the view of Alexander Hamilton, who exposed a very broad reading of the clause. Hamilton, a monarchist, was roundly rejected in his political views at the Constitutional Convention because the prevailing view in fact was that of the Federalists who stood for limited powers].

    So what did the NC Institute have to say about Nullification?

    The NC Institute for Constitutional Law (NCICL) on Nullification --

    The NCICL began its article with these words: "Recently, some groups have attempted to revive the doctrine of nullification, which holds that a state can invalidate what it believes are unconstitutional federal laws based on states' rights under the Tenth Amendment to the U.S. Constitution. Nullification is not a new idea, having come to life in the Kentucky and Virginia Resolutions of 1798 and again at various points in U.S. history. However, nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution. [U.S. Constitution, Article VI, Clause 2 (ie, the Supremacy Clause) and Marbury v. Madison]. It should be no surprise, then, that nullification has never been widely accepted as a solution to alleged unconstitutional federal actions, and it has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958). Though nullification may be an attractive option for those who feel the federal government has encroached too far on the powers of the states and the rights of citizens, it is not a constitutional remedy."

    The NCICL then gave a short review of the history of Nullification, claiming it is a "checkered past." What the NCICL failed to do, however, was to clarify that the "checkered past" is mostly the result of state action cited by history incorrectly as "nullification." For example, the article notes: "In the mid-1900s segregationists in southern states used nullification to rationalize opposition to desegregation. For instance, in order to prevent federally mandated integration, Arkansas passed an amendment to its state constitution to prohibit desegregation." Nullification stands for the principle that any law passed without a valid grant of power is null and void from its inception and is therefore unenforceable. A law that is legitimate and pursuant to a legitimate grant of power cannot be subject to nullification. A state or local government that refuses to enforce a valid exercise of legislative power is merely violating federal law. It is not nullifying it. The federal government can theoretically send in Federal Marshals to arrest the governor and the state legislature or local officials, whatever the case may be. It can bring suit in federal court to force it to comply. Desegregation was the federally-mandated remedy in accordance with certain valid decisions by the Supreme Court, such as Brown v. Board of Education. The amendment to the Arkansas state constitution was in violation of the Supremacy Clause. It cannot, in literal terms, be considered a nullification action.

    Opponents of nullification like to discredit it by associating it with secession. They claim it was used as a prelude to the Civil War. Furthermore, they claim it was used to as the vehicle to intentionally perpetuate slavery. The NCICL hasn't done this, thank goodness. But many state representatives, in an effort to obscure the real intention behind nullification, have eagerly made that connect. Nullification is the proper remedy to curb the constitutional abuses of the federal government. That is it. Secession is an entirely different remedy, and is often used for different circumstances, such as when the government itself is simply not working out. Nullification, when used properly to fight government tyranny, is an effective means to prevent secession. What do I mean used "properly"? If a state legitimately believes the government has overstepped its bounds under the Constitution and can justify that interpretation in light of the federal compact, then the government itself has the obligation to respect that decision by the state. Government is bound by the Constitution. After all, it is a document used to enforce limits on the government, not people. Furthermore, all officials are bound by oath to support and defend the Constitution. ["I, [name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."]. The government must respect limits on its power, including when those limits are forced by the states, pursuant to legal and constitutional authority. So the power to prevent secession actually lies within the government's power and discretion.

    The NCICL continued to discredit nullification by alleging that James Madison only half-heartedly supported nullification/interposition and in fact, never supported it after 1800. The staff writer noted: "During the Nullification Crisis of the 1820's and 30's, John C. Calhoun and other South Carolinians claimed to take up Madison and Jefferson's mantle as they pushed for nullification of federal tariffs on imported goods. James Madison, who was still living, disputed their claims. Madison intensely criticized and rejected Calhoun's theory of nullification, saying that allowing a single state to nullify a federal law 'would 'altogether distract the Govt. of the Union and speedily put an end to the Union itself.' According to Madison, it was not the goal of the Resolutions to 'assert a right in the parties to the Constitution of the United States individually to annul within themselves acts of the Federal Government, or to withdraw from the Union.'" The writer never once entertained the possibility (indeed, likelihood) that Madison didn't support Calhoun's use of nullification because he believed the tariff to be a valid exercise of Congress' constitutional authority. Furthermore, the text of the Virginia Resolutions clearly indicates that each state "has a duty to watch over and oppose every infraction" of the Constitution, and each state is "duty bound" to maintain its constitutional liberties within its "respective" territory. Hence, Madison did indeed contemplate nullification by a single state (rather than by all the states jointly).

    The paper was not completely misleading though. For example, it stated: "The Kentucky and Virginia Resolutions earned only negative response from the North and gained no traction in the South. In fact, the Resolutions were never endorsed by another state, and were affirmatively rejected by ten states. During the Nullification Crisis in South Carolina, Madison went to great lengths to distance himself from the nullifiers. The South Carolina movement failed to gain support from any other state." This is all true. But just because nullification was not roundly endorsed by a majority of states, or even by many states (only 2 endorsed it), doesn't mean the remedy is not a rightful and legal remedy. It doesn't mean it is not still available to them. It merely means the states weren't ready to stand up to the federal government at the particular point in time. Perhaps Madison tried to distance himself because he felt the high tariffs which gave rise to South Carolina's Ordinance of Nullification weren't worth the likely escalation towards secession. The key to nullification/interposition is in the language of the Virginia Resolves of 1798. Madison wrote that such a remedy should only be used in "case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the compact, in order to arrest the progress of the evil..."

    For many years, the individual states have been timid about asserting their rights under the Tenth Amendment. But that doesn't mean they can't exercise the full extent of their sovereignty. It doesn't mean the Tenth Amendment has been eroded or marginalized in any way. In fact, we are seeing a resurgence in state sovereignty. A number of states have introduced Sovereignty Resolutions in their state legislatures. Some of them have included particular acts of the federal government which would be considered so egregious as to cause a fatal breach of the compact holding the state in the Union. One such act is any attempt on the part of the federal government to re-interpret the Second Amendment to deny individuals the right to own and possess firearms (for self-protection and to protect against government). Likewise, we are seeing a resurgence of the doctrine of nullification among states.

    You can't cherry-pick when it comes to the Constitution (although many love to do just that). Either you agree to be bound by the entire document or it means nothing. The same Supremacy Clause that protects the federal government's authority under the Constitution and all laws and treaties made in furtherance thereof also implies that laws not made in furtherance of the Constitution are not considered 'supreme law.' Hence the Supremacy Clause directly supports the very premise of Nullification.

    The article then went on to sound downright ridiculous. It claimed that there is no support for nullification in the US Constitution - either in the Tenth Amendment or the Supremacy Clause. Wow, I had to scratch my head at that point. Could it be that the organization consulted a different constitution than the one we all know and love? The article asserted: "The Tenth Amendment does not authorize nullification. It states: '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 Supremacy Clause declares that federal laws are 'the supreme Law of the Land...anything in the Constitution or Laws or any State to the Contrary notwithstanding.' Moreover, the Supremacy Clause declares that "the Judges in every State shall be bound thereby.' "

    Furthermore, the Raleigh-based organization claimed that nullification lacks legitimacy because it has been rejected by none other than the Supreme Court. First it asserted that "the legal community and courts thoroughly repudiated the doctrine." Then it stated: "The unanimous Court in Cooper quoted former Chief Justice Marshall who, speaking for a previous unanimous Court, said: 'If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery . . . .' [Cooper v. Aaron, 358 U.S. at 18 (quoting United States v. Peters, 5 Cranch 115, 136 (1809)]. In other words, states cannot nullify federal laws."

    Finally, the article concluded with these words: "While many Americans justifiably feel that the federal government has overstepped its constitutional bounds in recent years, the doctrine of nullification is not the answer. Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court. Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification."

    The article cites law review articles, the US Constitution, and Supreme Court decisions (Marbury v. Madison and Cooper v. Aaron). It never once addressed the Kentucky Resolutions or the Virginia Resolutions. It never consulted the men who wrote the Constitution or the Federalist Papers in order to find out the intent behind the document, including the Tenth Amendment and even the very Supremacy Clause on which it relies so heavily to repudiate the remedy of Nullification.

    A Rebuttal --

    As I stated at the beginning, I am terribly disappointed in the position that the NC Institute for Constitutional Law decided to take on nullification in their article. Unfortunately, some of our NC state legislators also share a similar position on the subject. But a great many States' Rights and other constitutional organizations happen to believe as I do - that the NCICL got it completely wrong. They misinterpreted the Constitution, as well relied on misplaced legal authority. I'd like to point out the flaws in the article regarding the constitutional analysis, as I understand them. I'd also like to emphasize that my position is taken from the Founders themselves and in fact, I will state that position using their words and not mine.
   
    1). Where the Authority Comes From. First, the NCICL states that "Nullification holds that a state can invalidate what it believes are unconstitutional federal laws based on states' rights under the Tenth Amendment to the U.S. Constitution." Well, that is not entirely correct.

    Nullification begins with the central premise that a federal law that exceeds the power granted in the Constitution violates the Constitution and is therefore no law at all. It is void and has no effect. It has no force of law. It is unenforceable. That is because it is based on invalid constitutional authority. This is precisely what is enshrined in the Supremacy Clause. That clause states: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." The Constitution created a government of LIMITED POWERS. Only laws made in pursuance of those limited and defined powers are to be considered "supreme law." In other words, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally mandated powers. Laws made outside of those powers or in abuse of those powers are not supreme and therefore states are free to regulate.

    The next step in Nullification is the principle which allows states to stand up to the federal government and to declare that said law is unconstitutional and will not be enforced in the particular state. And that is where the NCICL is correct. It is the Tenth Amendment which stands for that proposition. This principal of dual sovereignty is America's most important contribution to political science and the last in our series of checks and balances on government power (not to mention the election process). Thomas Jefferson expressed the importance of having a separation of powers: "To preserve the republican form and principles of our Constitution and cleave to the salutary distribution of powers which that has established. These are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering." (in a Letter to Justice William Johnson, June 12, 1823)

    Finally, the legal authority comes from the nature of the Constitution itself, which is a compact (or contract). Since it was the several states which formed that instrument (which thus created the federal government), they best understand the nature and extent of the powers that they agreed to delegate and as Jefferson explained, "they being sovereign and independent, have the unquestionable right to judge of its infraction." As parties to the federal compact, Jefferson explained that the states must be forever vigilante and must step up, in a constitutional manner, to oppose every attempt, by any branch, to violate that compact.

    Thomas Jefferson wrote: "Every State has a natural right in cases not within the compact (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits. Without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them." (draft of the Kentucky Resolves of 1798). Every state at the time of ratification understood that the ratification of the Constitution and their joining the Union was dictated by the law of compact.

    2). The Supremacy Clause. The NCICL claims that nullification lacks any basis in the Constitution. The article states: "Nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution." It then cites the Supremacy Clause. (U.S. Constitution, Article VI, Clause 2).

    Despite what position the NCICL might take, the Supremacy Clause of the US Constitution in fact expressly embodies the core principle of nullification. It does so clearly on its face. It has been explained as such by our Founding Fathers and the very framers of our Constitution. The Supremacy Clause does not say and does not mean that ALL laws passed by the Federal Government are the supreme law of the land. It only refers to "This Constitution, and the Laws of the United States which shall be made in pursuance thereof..." Only laws passed pursuant to delegated powers are supreme. Laws passed outside the scope of such powers are null and void and can be disregarded. When you consider and acknowledge what the Constitution stands for, then this becomes as clear as the nose on one's face. The Constitution is a document that was written and ratified to enforce law on government. It was written to limit the conduct of government to specific grants of responsibility. It is not a carte blanche provision.

    The concept of federal supremacy was articulated by Chief Justice John Marshall, who led the Supreme Court from 1801 to 1835. In 1819, he wrote: "The government of the Union, although limited in its power, is supreme within its sphere of action."

    The undisciplined view that the government is protected in all that it does by the Supremacy Clause is one of the biggest obstacles to nullification. We have to help root out this ignorance. It is a mindset that will help the government on its way to tyranny. States aren't supposed to be complicit in federal tyranny but rather are supposed to oppose every instance of it.

    We also must root out the mindset that states have lost their footing vis-a-vis the federal government ever since the surrender was made at Appomattox to end the Civil War, and thus the Supremacy Clause has somehow been indirectly enlarged. Just because a handful of states chose to exert their sovereign right to change their form of government - a right that is enshrined in the Declaration of Independence and not denied in the Constitution - but were subdued and defeated by the Army of the federal government in the Civil War does not mean that the states have surrendered any of their reserved powers to the government. The stigma of the Civil War cannot be used to propagate false constructions of the Constitution. The protection of liberty depends on the States acting in full exercise of their sovereignty (minus the limited powers delegated to the federal government) but also being mindful that they should do what they can to ensure the survival and integrity of the Union. States should not be legally bound to SERVE the federal government through such false constructions of the Constitution, which essentially is the position that the NCICL takes. Our government design was intended to be the other way around - the federal government was to serve the states. Per our charter of freedom, Jefferson's Declaration of Independence , Liberty comes first. And the magical formula originally enshrined in the Constitution by our Founding Fathers was this: Limited Government = Maximum Liberty.

    And we also have to root out the mindset that states must surrender their sovereignty to the gradual and strained constructions of the Constitution which have happened over the years by liberal Supreme Court justices who have shown no conservative restraint in their interpretation of the Constitution. A contract, once signed, cannot be changed in material terms. And the material term at issue is the limited nature of federal power.

    But you don't have to take my word for this interpretation. Just look at what our Founders wrote at the time the Constitution was drafted:

    - "But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed." (Alexander Hamilton, Federalist Papers No. 33)

    - "There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid." (Alexander Hamilton, Federalist Papers No. 78)

    -- "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 of any definition.'" (Jefferson wrote this in an opinion he wrote concerning a National Bank, at the request of President George Washington)

    -- "The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights." (Jefferson's Notes on Virginia, 1782)

    3). The Tenth Amendment. In its introduction, the NCICL claimed that nullification is based on the Tenth Amendment yet later in the article, it stated that "the Tenth Amendment does not authorize nullification." I addressed the issue of authority above. It comes from the federal compact itself, founded on the law of compact.

    The principle of Federalism - or separation of powers -- was incorporated into the Constitution through the Tenth Amendment. "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 Tenth Amendment is what makes the distinction between states' rights and federal powers. With respect to the limited, enumerated powers that are granted to the federal government in the Constitution, the federal government is supreme (hence, it is sovereign). In all other areas of government, the States are considered supreme (they are sovereign). Hence, the concept of DUAL and COMPETING sovereigns. It is this division of power which keeps power centered where our Founders intended it to be... at least, that was the idea. Federalism is widely regarded as one of America's most valuable contributions to political science. It is the constitutional division of powers between the national and state governments - one which provides the most powerful of all checks and balances on the government of the people. It is the foundation upon which our individual rights remain most firmly secured. The implication, of course, is that the States have to be vigilante and guard their sovereign rights and powers from a central government that will always seek to invade the domain of states' rights in order to enlarge and concentrate its own powers. As history has always shown, governments have goals and objectives of their own, often in conflict with the rights of the States (and of the individual as well). To take it one step further, which both Thomas Jefferson and James Madison advocated, the states have an obligation - a duty - to stand up to any conduct on the part of the government which exceeds powers granted to it under the Constitution.