NULLIFICATION: The Rightful Remedy Whose Time Has Finally Come | Eastern North Carolina Now

    3. The Tenth Amendment: The Tenth Amendment reads: "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."

• It expresses the principle of federalism, which strictly supports the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the people.
• In insisting this amendment be added, the States intended it as a reaffirmation of the nature of the federal system of freedom

    THE DECLARATION OF INDEPENDENCE: The Declaration of Independence reads, in the second paragraph:

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.


    Notice that the Declaration of Independence talks about Individual Liberty; Individual Rights..... Rights that are supreme over any government. They transcend government. The Declaration explains why Men are free and the How they will remain free in America. Because government's sole purpose is to this end. Governments are instituted for this goal. You will notice that Individual Liberty is protected; it must be preserved. The two highlighted sections emphasize that there is no right for government to be preserved. In fact, it should be altered and changed, as the people notice their liberties weakened. Nullification is based on the notion that when government oversteps its powers, it necessarily usurps them from another rightful source. The Declaration talks about the necessity of government remaining subservient to the liberty of the people.

    4. The US Constitution: The US Constitution is one of limited and express powers transferred (temporarily) from the States to the federal government.

    (i) The government is a "creature" of the States; it is meant to serve the States

    (ii) Its authorized powers are listed clearly in Article I thru Article III

    (iii) Again, see Federalist No. 45 (James Madison) for the powers intended for the federal government and those that were to remain reserved to the States

    (iv) The States, when they deem it necessary, can re-assume those powers.

    Constitutions are important because they set boundaries. Reliable boundaries. Most importantly, they set boundaries on government. That's what they are supposed to do. Constitutions are critical because they protect certain rights and freedoms that people can take comfort and protection in. Thomas Jefferson explained: "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."

    You'll notice that Jefferson defined or explained Nullification. As mentioned earlier, Jefferson's definition references basic legal theory. Again, government needs a source of authority in order to make laws and enforce them. If it doesn't have authority, then the laws have no legitimate basis and are nullities. In this statement,

    Jefferson was talking about a magical line - a boundary. The government must not transcend this boundary for to do so would be an infraction of the rights of the People (either to govern themselves or to be governed by their State which can address their issues and concerns most directly and favorably). Jefferson was explaining that this is precisely what a constitution does - provides an exact boundary for government so that it remains at a fixed distance in peoples' lives.

    5. The Supremacy Clause: Article VI Section 2 of the US Constitution is known as the Supremacy Clause. It reads: "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 key phrase, of course, is "which shall be made in pursuance thereof..."

    The argument that the federal government can do anything it wants under the Supremacy Clause is a big pile of bullshit but it's one of the biggest arguments of the anti-nullifiers. But, by its very language, the Supremacy Clause supports Nullification. When the government acts outside the Constitution, its laws and actions are not supreme and therefore the States have the right not to recognize them. Only laws made "in pursuance" of the US Constitution are to be considered supreme.

    6. Compact Theory: The Constitution implicates Compact Theory, or Social Compact Theory. A Compact is an agreement among members to unite for a common goal. According to our Founding Fathers and Ratifying Conventions viewed the Constitution as a compact. They viewed it as a deliberate and voluntary act by the States (the members) to create a government for their common good. The government was to serve them. The States, as a result, hold the higher authority. As such, they - as the parties to the compact - have the right to say when the Constitution has been misinterpreted and/or exceeded

    The government, as merely a "creature" and not a signer or member, has no authority to alter or change the meaning of any the terms of the compact

    The meaning and intent of the Constitution comes from the understanding of the signing parties (States). Consequently, the State Ratifying Conventions are most valuable. (Supreme Court rarely cites them or the Federalist Papers)

    Compacts have the character of a contract. They are considered contracts because of the manner in which they are created. In the case of the Constitution, there was an offer (an offer to join together with fellow states for mutual benefit) and an option to accept or not. The States accepted, in their conventions, after considerable debate and discussion. The significance of each Convention is how that state understood the meaning and intent of the Constitution. In contract law, it is the understanding of the parties at the time of the making of the agreement that governs its meaning and execution. The Compact - the Constitution - enabled the states - in their sovereign capacity - to act jointly and collectively, each suffering a burden (a surrender of some of its sovereign power) in order to enjoy a benefit (regular commerce and collective safety and security). Burdens and benefits are a characteristic of contracts. As you all know, the government is not a party to the compact, but merely a creature. As such, it has no independent power or right to alter any term of the compact.


    7. Agency Theory: The Constitution also implicates Agency law or Agency theory. Under this view, the federal government is an agent - an agent of the States. The law of agency, at its most basic level, recognizes that an agent can act only pursuant to the consent and control of the Principal (the Partners) to whom the agent owes a duty. It's a fiduciary duty - one of particular stringency and loyalty. Just as partners in a business firm decide what authority to give their agent - such as the authority to enter into contracts on their behalf - so the parties to the Constitution - the States - decided the powers of the national government. Actions outside the scope of the agency are not legal. And actions taken by the agent must SERVE the interests of the partners.

    Taking these two areas of law together - Compact Theory and Agency Theory - we can see why Jefferson and Madison understood that each state, as a party to the compact and as a partner over the agent, has an equal right to judge for itself whether the government has overstepped its delegated powers.

    8. The Kentucky Resolves and the Virginia Resolves. These resolutions (written by Jefferson and Madison, respectively) specifically articulate the doctrines of Nullification and Interposition, as the terms were coined by these great men. - These remedies (actually, they should be used together to be most effective) are explained to be the "Rightful Remedies" against federal tyranny.

    The terms Nullification and Interposition were articulated in 1798, following the enactment of the Alien and Sedition Acts during John Adams' administration. But the doctrines were nothing new. Jefferson and Madison merely explained them best and explained how they should be used to limit government over-reach. But prior to that time, the doctrine was something our Founders were very familiar with. First of all, we know this from the Philadelphia Convention. Our Founders referred to the doctrine by using the term "negative." To nullify a piece of legislation was to veto it or "negate" it. Furthermore, one only needs to read Federalist No. 78 to understand with complete clarity that any law passed by the government that is not pursuant to delegated powers is and should be considered null and void.

    On the fourth day of the Convention in Philadelphia in 1787, Virginia's Governor, Edmund Randolph presented the Virginia Plan, which was written by James Madison. Randolph, a polished politician, seemed the better choice to sell the plan than tiny, meek, mild-mannered Madison. Madison's idea was to recreate or re-form the Union under an entirely different form of government - a republican model. As we all know, in a republic, the people are the ultimate power, and the people transfer that power to representatives, who must act within certain guidelines. Yes, the plan was to form an entirely different form of government and not merely to amend the Articles of Confederation. Madison believed that the Confederation was giving too much emphasis to state sovereignty and not enough to the national objectives that were deemed necessary enough to establish the national body, the Confederation Congress, in the first place. For example, the states were under no obligation to pay their fair share of the national budget and they regularly failed to send funds; they violated international treaties, they violated each other's rights, and in general, they ignored the authority of the Congress. And so, Madison originally (because he was a Nationalist at the time - and not a Federalist) sought to establish a dominant national government, while curbing the power of the states. To that end, his Virginia Plan included these main features:

• A bicameral legislature (two houses) - with membership for each to be determined proportionally
• The lower house would be elected by the people
• The upper house would be elected by the lower house
• The legislature would be very powerful
• There would be an executive, and his position would be enforcement of the laws only. He was to ensure the will of the legislative branch. And in fact, he would be chosen by the legislature.
• There would be a judiciary, with justices allowed to serve for life
• The judiciary would have the power to veto legislation, but it would not have the power to be the final voice. It would be subject to an over-ride.
• And finally, the Virginia Plan provided that the federal government would have a NEGATIVE over any act of the states that interferes with the design of the federal Congress. As Madison's plan provided: "whenever the harmony of the United States may be interrupted by any law by an individual state legislature such that the law contravenes the opinion of the federal legislature, the federal legislature has the power to negative that state law." A "negative" is a nullification - negating that law or declaring it to be null and void.

    There were some delegates at the Convention who responded it was the states who should have the power to negate the acts of the federal legislature and not vice versa.

    So you see that the doctrine, as applied to government, was something very familiar to our Founders. In other words, it is a founding principle of government.


    As we should all know, the purpose of the Federalist Papers, written by James Madison, Alexander Hamilton, and John Jay, was to explain the Constitution - to guarantee its meaning - to the States so that they could make an informed decision in their Conventions. Anti-Federalist sentiment was strong at the time and the states were distrustful of the Constitution drafted in Philadelphia. As the author of Federalist No. 78, Alexander Hamilton wrote: "The authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, the foundation on which it rests should be discussed......