Nullification and the Myths | Eastern North Carolina Now

    Publisher's note: Diane Rufino began her well crafted discussion on Nullification sometime ago with the latest instalment, Nullify Now.

    The NC Institute for Constitutional Law (NCICL) recently published an article about nullification, asserting that it not a legitimate constitutional remedy. In a state where support is growing for nullification, it was quite disheartening to read the intellectually-deficient position the NCICL took on this basic constitutional remedy articulated by our greatest Founding Father, Thomas Jefferson. In this paper, I will examine the arguments in that article and explain why, in fact, nullification is more legitimate than ever.

    Before discussing nullification, let's first get to know this great man, Thomas Jefferson, who contributed so much to our great American experiment. He authored the Declaration of Independence, is the father of our religious liberty, and to a great extent, provided the blueprint for our Bill of Rights. He gave us a unique system of government centered on the inalienable rights of the individual and not the divine right of kings. The power of government would derive from the people, who were sovereign over their humanity. As sovereigns, individuals would have the right to alter or abolish governments that were destructive of their rights. Never before had a nation placed such importance on the People, as individuals and not in the collective. In the early days of the republic, he fought for the strict interpretation of the Constitution against the Federalists (the party of Alexander Hamilton and his supporters) who sought to broaden the scope of Congress' powers by claiming implied powers. Jefferson is widely considered the most brilliant and well-read of our Founders. And for all his contributions to the design of our government, we often say that it is based on Jeffersonian principles.

    Jefferson emphasized the need for a republican form of government. He believed it was the only form of government not at war with the fundamental rights of mankind. He summed up the design of an effective, "safe" republican form of government this way: "The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to. Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best." (letter from Thomas Jefferson to Joseph C. Cabell, 1816).

    Compare what Jefferson wrote in that letter to Joseph Cabell to the explanation James Madison provided in Federalist No 45 as to the federal nature of our government.

    "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."

    In his description of a "good and safe government," Jefferson seemed to affirm the brilliance of the federal system that our founders designed for us in 1787.

    The task for our Founders in Philadelphia in 1787, of course, was to design an effective government to serve the interests of the several states and bind them in a Union based upon common goals yet honor the charter of freedom that Jefferson wrote to define the character of our nation. Once the delegates decided on the nature of the government - a federal government of limited powers - the next step was to determine how to keep the government limited to its expressly-enumerated powers, and how to prevent it from encroaching on the rights of the States and the Individual.

    The primary political philosopher of the Constitution, James Madison, brilliantly sought to address this problem by dispersing government power among many power centers. He understood that the separation of powers was essential to prevent the consolidation of government and the formation of centralized, authoritarian tyranny to which all governments are prone. In those early days, the greatest concentration was in the state governments, themselves divided into separate branches. At the federal level (or as Madison called it, the "general government"), power was divided into the House of Representatives, the Senate, and the president. If any one of the power centers tried to invade the domain of the others or more dangerously, to expand its power outside the bounds of the Constitution, the other power centers, always mindful of the precarious balance, would be highly motivated to mobilize and thwart those ambitions. With the inherent power drive of each center checked by the others, the citizens could maintain their own freedom from the travails of overweening government power. Yet another check the Founders gave us on government power was the Supreme Court, which was vested with the duty of interpreting the Constitution and laws and "rendering an opinion" as to the constitutionality of the laws or power grab from any of the other branches. The power to actually strike down laws it deems unconstitutional was actually granted to the Supreme Court by itself in the early case of Marbury v. Madison (1803).

    Our Founders spent considerable time and attention in preventing the government from concentrating, enlarging, and abusing its power. As Jeffrey Barrett in American Thinker wrote: "The Founders were insightful students of human nature and understood that the drive to amass ever greater power was as fundamental an appetite in many human beings as thirst, hunger, and sex drive. This presented a problem for the Founders, who wanted to establish a society of ordered liberty, a society where the citizen enjoyed the maximum freedom from government interference consistent with a stable and orderly community."

    But power corrupts. Jefferson warned that "human nature is the same on both sides of the Atlantic" and would eventually lead to the same result. He had studied the failed regimes of history and was aware that in the history of government, all republics tended to decay into tyranny. Rome, the most successful republic, was able to survive for almost 500 years, but the average lifespan of a republic was between 200-300 years. Jefferson said: "Experience hath shown, that even under the best forms of government, those entrusted with power have, in time, and by slow operations, perverted it into tyranny."

    Tyranny is what happens when power is transferred from the people and concentrated in a central government. "What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate." (Jefferson)

    If we've learned anything from the recent John Roberts/Supreme Court decision to uphold Obamacare's Individual Mandate as constitutional, it is that constitutionalists cannot rely on any branch of the federal government to curb the steady rise of federal government power that has taken place over the last hundred years.

    Jefferson insisted that the Constitution must be strictly interpreted. He wrote: "On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed." His insistence on strict construction was based on two enduring concerns. One was his commitment to individual liberty. He knew that "the natural progress of things is for liberty to yield and government to gain ground." His second broad concern was to restrain and limit government so that people might enjoy their rights. It was not safe, he thought, to confide too much power in government. "I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people."

    James Madison, considered the Father of the Constitution, agreed with a strict construction approach. His advice was this: "Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government." Both Jefferson and Madison believed that strict limits on federal power were essential for liberty.

    Nullification --

    Nullification is an extension of Jeffersonian principles. It is a states' rights doctrine, coined and articulated by Thomas Jefferson in the Kentucky Resolves of 1798 and 1799. Nullification provides that a state has the unquestionable right to judge when a federal law, or other federal action, has exceed constitutional bounds and then refuse to enforce it. Nullification is proper when an act of the federal government assumes power not delegated by the US Constitution. Jefferson called nullification the "Rightful Remedy."

    The reason for nullification is to further the very goal that our Founders addressed in the design of government - to prevent liberty from yielding and government from gaining ground. Nullification is necessary to maintain the precarious balance of sovereignty enshrined by our Constitution and also by the Ninth and Tenth Amendments. It is necessary to prevent the government from the natural tendency to concentrate more power in itself. Jefferson asked what the appropriate remedy would be when the government attempted to abuse its powers. He recognized three options: judicial review, secession, and nullification. The first, he felt, was untrustworthy and the second, he felt was too extreme. Nullification was the sensible, constitutional, level-headed approach. In the Kentucky Resolves of 1798, Jefferson wrote: "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." Nullification enables abuses of the Constitution to be nipped in the bud, thereby preventing any escalation of frustration which might lead to something extreme - such as secession.

    "If every infraction of a compact of so many parties is to be resisted at once as a dissolution, none can ever be formed which would last one year. We must have patience.... and separate from our companions only when the sole alternatives left are the dissolution of our Union with them or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation. But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation." (Letter from Thomas Jefferson to William Branch Giles, 1825)
The United States Supreme Court in early March, 2012: Above.     photo by Stan Deatherage

    Unfortunately, it wasn't long after the US Constitution was ratified and the Union was formed that Congress began testing the limits of its power. The first major constitutional question that came up concerned the creation of a (national) Bank of the United States. Jefferson was Secretary of State at the time and President Washington asked for the opinions of his heads of departments. He wrote Washington that ours is a government of delegated powers. "The incorporation of a bank," he said, "and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution." He went on to explain each of the enumerated powers, explained why the power to incorporate/charter a bank was not delegated, and finally recommend that the bill be vetoed. Washington would eventually side with Hamilton.

    In 1796, in response to the Quasi War with France, 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]. The Naturalization Act increased the residency requirement for American citizenship from five to fourteen years and the Alien Enemies Act authorized the president to imprison or deport aliens considered "dangerous to the peace and safety of the United States," in violation of due process. The Sedition 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."
   
    Although there were no deportations under the Alien Act, many were convicted for violations of the Sedition Act. Many honorable men were silenced, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers and newspaper editors, 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 Aliens & Sedition Acts 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" Clause, the "Necessary and Proper" Clause, and its war powers for justification to pass these pieces of legislation. The President at the time, John Adams, was a Federalist, and he believed the Constitution could be liberally-interpreted so as to permit these regulations. The Vice President, Thomas Jefferson, on the other hand, a Democrat-Republican, subscribed to a strict interpretation approach. It was his opinion that the Naturalization Act exercised a power nowhere found in the Constitution and the Sedition Act violated the protections of free speech in the First Amendment. James Madison shared in his opinion.

    Confronted with an obvious trend - the self-serving liberal interpretation of the Constitution and concentration of power in the federal government, despite the intentions to establish a government of limited powers - Thomas Jefferson took the opportunity presented by the Alien & Sedition Acts to articulate the rightful remedy to push back against such abuses of power. The series of resolutions that Jefferson wrote and shared with Virginia and Kentucky state representatives was adopted as the Kentucky Resolves of 1798.

    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 that same year, after a series of conversations with Jefferson, James Madison wrote a similar resolution for the Virginia assembly. He took Jefferson's remedy and added an affirmative duty on the part of the states to insert itself, or to interpose, between the federal government and the people (for whom the Constitution is to protect), when that government becomes abusive with its powers. James Madison's remedy is thus termed "Interposition." In the Virginia Resolves of 1798, he declared Virginia's responsibility in response to the Alien & Sedition Acts of 1796:

    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.....

    In November 1799, the Kentucky legislature approved follow-up resolutions, 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.

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