Nullification: The Rightful Remedy to Curb Federal Tyranny - Part I | Eastern North Carolina Now

   Publisher's note: This is the first part of a two part series on the Nullification process of a tyrannical government. Parts II of this series will be coming forthwith.

   The second part of this two part series was published on June 10, 2012.

Part I of the Two Part Series

    "He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people... "

    "He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation."

    "For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments."

    "For depriving us in many cases, of the benefits of Trial by Jury."

    "For transporting us beyond Seas to be tried for pretended offences."

    "He has abdicated Government here, by declaring us out of his Protection and waging War against us."

    "He has excited domestic insurrections amongst us...."

    No, the charges above are not directed at President Obama, but rather are some of the grievances that our founding patriots had against King George II. These grievances were listed in the Declaration of Independence, as written by Thomas Jefferson, as examples of the "repeated injuries and usurpations" levied against the colonists at the hands of the King, "all having in direct object the establishment of an absolute Tyranny over these States." These grievances were listed as proper justification for the separation (indeed, the 'secession') from England. "When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

    Our early settlers left their homes, braved treacherous seas, and came to America's wilderness shores as proud English subjects in search of a life with greater freedom of religion. The blood surging in their veins was the same blood that surged through the veins of hundreds of years of English subjects, all focused on one goal - restoring Saxon common law, limiting the power of the King, acknowledging the fundamental civil rights of all individual rights, and instituting a recognized national charter establishing proper boundaries of government with respect to those rights. Their grand notions of liberty came from the Magna Carta (1215) and the great constitutional documents of the 17th century [the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the English Bill of Rights of 1689], as well as from the Bible and the works of such Enlightenment philosophers as John Locke ("the Philosopher of Freedom"). Their experiment in colonizing a new world, governing themselves, and exercising the liberties they carried with them from England for their most useful and productive purposes emphasized to them that Man is a sovereign being, endowed by the Creator with certain unalienable rights, that among them are Life, Liberty and the pursuit of Happiness, and that to secure those rights, governments must derive their just powers from the consent of the governed. And that whenever any form of government becomes destructive of those ends, it is the right of the people, as sovereign beings who are never naturally divested of their inherent natural and fundamental rights, to alter or to abolish it, and to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness. The history of the English people, indeed most of the world, has shown that when the government becomes despotic and evinces a design to reduce them to a role of oppressive subservience, the people fight back in order to regain the freedom they were born with.

    Our Founders made sure they provided for the proper avenues to counter a government that evinces such a design and even provided for the right to abolish that government. The proper avenue, as discussed in this article, is Nullification (and/or Interposition), and the rights are that of self-defense, self-determination, and self-preservation, all based on free will. The right of free will, indeed the very basis of human life and the foundation of almost all religions, is a HUMAN right and not a government entitlement. Governments are defined and guided by written charters.

    Nullification --

"Nullify" - to make legally null and void; to invalidate (Webster's Dictionary)

    Nullification is a term introduced by Thomas Jefferson in 1798 when he drafted the Kentucky Resolves to articulate the reason for the state to oppose an unconstitutional federal law - the Alien and Sedition Acts. Nullification begins with the central premise that a federal law that violates the Constitution is no law at all. It is void and has no effect. It has no force of law. It is unenforceable. But it goes one step further. If a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact (see later), to declare it so and thus refuse to enforce it. It would be foolish to wait for the federal government, or a branch thereof, to condemn its own law or censure its own conduct. Nullification provides the necessary "shield" between the people of a state and an unconstitutional law or policy (even judicial decision) from the federal government.

    Our Founders labored and debated extensively over how to establish a nation governed by limited federal government. But one question remained: What can be done if the government violates the very Constitution which defines it? What protections are available for the people? In fact, that question became very urgent in 1798 when the government enacted the Alien and Sedition Acts and attempted to quash free speech.

    Thomas Jefferson articulated the most effective option - Nullification, or as he called it, "the Rightful Remedy." James Madison articulated a very similar option, which he termed "interposition."
Thomas Jefferson: Above.
    When John Adams was elected president in 1796, tensions were very strained between the United States and France. It quickly escalated to the Quasi War (as it was called; an undeclared war) which would last until 1800. During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. [The Naturalization Act, the Alien Friends Act, the Alien Enemies Act, and the Sedition Act]. It was the Sedition Act which caused the greatest concern to the Republicans of the day and they challenged it on constitutional grounds. The Act established fines and jail time for "any person who shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly 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, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of any of them, the hatred of the good people of the United States, or to stir up sedition within the United States."

    Convictions began to follow. Many honorable men were silenced under the Sedition Act, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers, whose livelihoods were built on the critical analyses of government. As one convicted writer, Thomas Cooper, wrote about the impact of the convictions and subsequent trials: Americans "may learn some useful lessons... they will hold their tongues and restrain their pens on the subject of politics."

    The Sedition Act immediately sent up constitutional red flags to many of our Founders, although it appeared to be partisan in nature. Congress, dominated by Federalists, pointed to the "General Welfare" and "Necessary and Proper" clauses of the US Constitution for justification to pass these pieces of legislation. The President, John Adams, was a Federalist, and seemed to have no problem with the law. The Vice President, Thomas Jefferson, was a Republican, and he had a big problem with it. Even though the Act did not protect him (it protected the President and members of Congress only), it was his opinion that the protections of free speech apply most aggressively for political speech. He believed that when one enters politics, he should expect public criticism.

    Jefferson pondered what remedies could be taken against this overtly unconstitutional act, including judicial review, nullification (he called the Sedition Act "a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image"), and secession (which he believed was a state's inherent and natural right, stemming from the principles of self-government and self-determination). He felt secession was extreme and judicial review untrustworthy. The Supreme Court at the time was packed with Federalists and already Jefferson was suspicious of its ability to correctly interpret the Constitution of our Founders. The Court was already looking to the elastic clauses as sources of extra federal power instead of the qualifiers that they were intended to be. Jefferson was sure it would uphold the constitutionality of the Alien and Sedition Acts. But more importantly, Jefferson saw the Supreme Court as part of the problem. For one, it was itself a branch of the federal government and thus not an impartial arbiter. As he 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."

    Thomas Jefferson and James Madison then began a series of correspondence throughout 1798 over their joint concern over the Alien and Sedition Acts, their discussions over the proper state response, and for the future of the constitutional republic. Jefferson drafted a series of resolutions that addressed several things, including the following: (1) it described the nature of the federal union; (2) it condemned the Alien and Sedition Acts as gross violations of the Constitution; and (3) it considered the proper response to be taken by the states. In fact, both man drafted separate resolutions.

    Jefferson's resolutions articulated his entire theory of the federal union and therefore explain the nature of our newly-established independent nation. "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," he wrote. He gave a copy of his resolutions to his friend and neighbor, Wilson Cary Nicholas, who was a member of the Virginia Senate, who also shared them with John Breckinridge, a member of the Kentucky legislature and who just happened to be passing through Virginia at the time. These resolutions, with some modifications, would become the Kentucky Resolves of 1798 and would articulate and memorialize the Jeffersonian view of the nature of the United States. The Kentucky Resolves stated, in part:

    1. Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] 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 specific 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 November 1799, the Kentucky legislature approved follow-up resolutions to those of the previous year, for the purpose of addressing the comments of those states who had not received Jefferson's resolutions favorably. It was in the Kentucky Resolutions of 1799 that the word "Nullification" was used for the first time in an official document to describe Jefferson's states' rights' remedy:

    "Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, 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, agreeably 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 the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by 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 color of that instrument, is the RIGHTFUL REMEDY: That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST."

    Likewise, the resolutions that James Madison would become the Virginia Resolves of 1798. In part, it read:

    "Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers)...

    The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness...

    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 (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are 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...

    That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy....."

    The "certain general phrases" that Madison was referring to are the elastic clauses of the Constitution - the "Necessary & Proper" clause and the "General Welfare" clause. I don't believe they attempted to enlarge the "Commerce" clause at that time.

    The principle of Nullification is a States' Rights Remedy (termed the "Rightful Remedy") inherent in the states' reserved powers under the Tenth Amendment and founded in the Compact Theory of Federalism to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution. The principle also underlies the message of Article VI, section 2 (The Supremacy Clause), which states that the Constitution and all laws made in furtherance of, .... are to be considered the supreme law of the land. This principle affirms that the states, the parties to the compact which created and gave breath to the federal government with specificity, have the right - even the duty - to declare when federal laws and other official acts exceed the powers delegated to the federal government in the Constitution.

    In summary, the principle of "nullification" is based on the convergence of pre-Republic and constitutional duties and the text of the Constitution which is consistent with pre-constitutional concepts related to a state's organic documents in general. A clear understanding of the requirements and basis of these duties and legal principles is necessary for a usable and defendable position in support of "nullification."