Nullification and the Myths | Eastern North Carolina Now

    Nullification, as explained above, is based primarily on the Supremacy Clause, but also on the Tenth Amendment. And yes, the Tenth Amendment does provide the basis for asserting a power that resides in the State and therefore not available for the federal government. If the power is therefore not available to the federal government, any law attempted to be passed pursuant to that power would be invalid, null, and void. Under the law of compact, the states would have the authority to call the federal government out on conduct that exceeds the authority granted in the compact document - the Constitution. Nullification would therefore be the proper remedy.

    As mentioned earlier, James Madison explained the constitutional division of powers in Federalist Papers No. 45: "The powers delegated 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, such as war, peace, negotiation, and foreign commerce.. 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." Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not "subordinate" to the national government, but rather the two are "coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government."

    4). The Supreme Court. The final claim the NC Institute for Constitutional Law makes is that nullification lacks legitimacy because it has been rejected by the Supreme Court.

    First of all, would there even be any doubt that any branch of government would like to disavow nullification. It is a direct threat to their power and their authority. Hasn't the Supreme Court become far more powerful than any of our Founders could have imagined?

    The position of our Founders can be summarized by two schools of thought. On one hand, Thomas Jefferson never trusted the federal courts, especially the Supreme Court. He never saw the wisdom in trusting six individuals (the make-up of the Court at the time). On the other hand, the drafters of the Constitution envisioned the judiciary as the weakest branch, not capable of much more than offering an opinion as to the constitutionality of the actions of the other branches.

    Thomas Jefferson, a Founding Father and drafter of our founding documents, saw the Supreme Court as part of the problem. Remember how the Court, almost from the beginning, tried to give the government powers the states never intended it to have (that's why it was the states which were challenging the government on the power grabs !!) For one, it was itself a branch of the federal government and thus not an impartial arbiter. How could it be expected to be a fair umpire for the States? As Jefferson reasoned, the Supreme Court was a branch of the institution which engaged in a power struggle with the states. Secondly, it was comprised of human beings, who like the rest of mankind, are subject to passions, ambitions, allegiances, whims, and depravities. As he wrote:

    "To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps - and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal. I know no safe depository of the ultimate powers of society but the people themselves."

    In a letter to a friend in 1821, Jefferson wrote: "The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." (Letter to Spencer Roane, 1821)

    In a letter that same year to another friend, he wrote: "It has long, however, been my opinion, and I have never shrunk from its expression, (although I do not choose to put it into a newspaper, nor, like a Priam in armor, offer myself its champion,) the germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." (Letter to Charles Hammond, August 18, 1821)

    And in a letter penned 1823, he wrote: "At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the Constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." (Letter to Monsieur A. Coray, October 31, 1823).

    As to the weight to be given the judiciary in the scheme of checks and balances, Alexander Hamilton gave this explanation in Federalist No. 78:

    "Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

    This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

    William Jasper, editor of The New American, an affiliate of the John Birch Society, wrote: "Clearly, a federal law which is contrary to the Constitution is no law at all; it is null, void, invalid. And a Supreme Court decision, which is not a 'law,' has no 'supremacy,' even if it is faithfully interpreting the Constitution. So it is the height of absurdity to claim that a Supreme Court decision that manifestly violates the Constitution is the 'supreme law of the land.'"

    Jeannette Doran, of the NCICL, was asked to join a forum including strict constitutionalists to debate Jefferson's remedy of nullification. She declined. When asked why she didn't want to participate, she simply responded: "I simply do not believe a debate is necessary. As NCICL's paper makes clear, nullification efforts lack legitimacy."

    Conclusion --

    The NC Institute for Constitutional Law claims that "Nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy..." It claims that the Supremacy Clause settles the issue of nullification. This is simply a misguided interpretation and analysis of nullification. The NCICL might be apologists for the federal government or they might be supporters of the "Living Document" approach to constitutional interpretation so that they personally want to illegitimize this re-emerging remedy, but they simply cannot disregard nullification on the bases they provided.

    There should be no need for someone like me to articulate why nullification is indeed a legitimate concept and a legitimate exercise of state power to resist federal tyranny, or for anyone else for that matter. Our Founders did a far better job of that than I ever could. They did a better job than any of us could. Alexander Hamilton did a good job of it in the Federalist Papers. Thomas Jefferson did an excellent job in the Kentucky Resolves of 1798 and 1799. James Madison did a superb job in the Virginia Resolves of 1798. And John Calhoun did an outstanding job in his Fort Hill Address. Any of our Founders and any of these primary documents can be used to argue successfully against the NCICL's position.

    I don't know about anyone else, but when it comes to what our Constitution means and what our legal remedies are, I take my cue from Thomas Jefferson and James Madison and Alexander Hamilton, and not from a modern-day Supreme Court or self-serving branch of the federal government, or even a constitutional organization like the NCICL. The history of the federal government - all 3 branches - is a history of repeated attempts to enlarge and concentrate its power. Anybody who fundamentally understands the purpose and goals of the Constitution - to establish a LIMITED government of defined responsibilities that serves and unites the states but respects the bounds of sovereignty - knows that the Supremacy Clause does NOT give protection to EVERY action/law/policy of the federal government. Rather, the Supremacy Clause affirms the very nature of the Constitution - that when laws are made in pursuance of legitimate grants of power, they are supreme and to be treated as such by courts throughout the country. The reverse is therefore true. When laws are not made in pursuance of legitimate grants of power and are instead an exercise in abuse of power, then they are illegitimate and are null and void.

    I suppose the next article to come from the NCICL will assert that the Founders aren't the real authorities to consult any longer for the meaning of the Constitution.

    While groups like the NCICL and even elected state officials denounce nullification as an illegitimate exercise of state power, you have to ask yourself one question: If this remedy is off the table, what are the meaningful options left to states who are frustrated in their attempts to stand up to growing federal tyranny? Do they take their chances with a rogue Supreme Court? Is that what our Founders had in mind by a "limited" government that "serves" the states and respects their sovereignty and sovereign concerns? I don't think so.

    The government can push its position that nullification lacks legitimacy because the Supreme Court says so (or alludes to it). Supporters of big government can continue to associate nullification wrongly and deceptively with slavery and the perpetration of Jim Crow. And state representatives can refuse to support it, thereby killing the spirit that once refused to ratify the Constitution until it incorporated the Tenth Amendment so that states' rights would remain strong and relevant.

    But what if Nullification is the best shot we have of restoring our republic? Would we be willing to take another look at this remedy that Thomas Jefferson articulate for us? After all, our distinct group of Founders, so educated in government theory and so inspired to secure the liberty won by the states in the Revolutionary War, would have left us a way to preserve that liberty so that the combined history of England and America in advancing the rights of men with respect to government would not be sacrificed. That safeguard is the combination of federalism and nullification.

    There will be opponents that will never see the wisdom in this most important of checks and balances. But that's because so far we've been insulated from the kind of evil that the rest of the world has suffered. Imagine that sometime in the near future, because the world has become an ever-increasing scary place, on the verge of war and great economy stress, and because Americans want security more than freedom, we happen to elect a charismatic president who makes a lot of promises. That President is Adolf Hitler. What would you hope would happen in this country. How would you hope your system of government would operate? Would you hope that the states blindly follow whatever policies this President Hitler puts in place? What if he did here what he did in Germany and passed the Enabling Act, which suspended the peoples' rights of speech, press, and assembly? What if he nationalized the church? What if he enacted a policy of stripping certain citizens of their property and citizenship? And what if he then proceeded to round us up and put us in detention or death camps.... because after all, at that point we wouldn't be entitled to any rights that the laws protect. Would you want your state officials to say: "It's not our job to second guess President Hitler and the federal government?" Or would you hope and pray that your state would stand up, assert its sovereignty, protect you and fellow citizens from harm, and refuse to enforce Hitler's policies in your state? That's the worst-case scenario, I know. But it makes you think about the importance of all the checks and balances that we have in our American system. Let's not take any for granted, and especially let's not call into question the legitimacy of a safeguard like Nullification/Interposition by placing more emphasis on the federal government's position over the Founders'.

    I suppose this leaves us with the question: "Is it possible for us today to reclaim Jefferson's legacy?"

    Our greatest Founding Father left us with this advice: "The ground of liberty is to be gained by inches; we must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get." No matter how much liberty we have lost, no matter how serious our constitutional crisis is, or how oppressive government has become, it is still possible to "press forward." But we need his remedies. If lovers of liberty are persistent enough, Jefferson's principles will prevail and we will once again have the freedom which he helped our ancestors to secure.


    References:

    Nullification: An Unconstitutional Remedy," NC Institute for Constitutional Law, August 23, 2012. Referenced at: http://ncicl.org/article/776

    Clarence B. Carson, "Judicial Monopoly Over the Constitution: Jefferson's View," The Freeman, October 1983, Volume 33, Issue 10. Referenced at: http://www.thefreemanonline.org/columns/judicial-monopoly-over-the-constitution-jeffersons-view/

    Federalist Papers (a list of all, with titles) - http://thomas.loc.gov/home/histdox/fedpapers.html

    Federalist No. 78 - http://thomas.loc.gov/home/histdox/fed_78.html

    Jeffrey Barrett, "Madison Revived," American Thinker, July 8, 2012. Referenced at: http://www.americanthinker.com/2012/07/madison_revived.html

    The Kentucky Resolves of 1798 - http://www.princeton.edu/~tjpapers/kyres/kyednote.html

    The Kentucky Resolves of 1799 - http://www.constitution.org/cons/kent1799.htm

    The Virginia Resolves of 1798 - http://www.constitution.org/cons/virg1798.htm

    Virginia Report of 1799 (report to the House of Delegates, regarding the Alien & Sedition Acts) - http://www.constitution.org/rf/vr_1799.htm

    Thomas Jefferson, on the topic of Republican Government (letter to Joseph C. Cabell, February 2, 1816) - http://press-pubs.uchicago.edu/founders/documents/v1ch4s34.html

    Thomas Woods, Nullification: How to Resist Federal Tyranny in the 21st Century; Regnery Publishers, 2010.

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.