Publisher's note: Diane Rufino has written much on Nullification in BCN. For your convenience in search, we shall provide this list of Diane's posts on the subject.
Nullification is the theory that says that actions of the federal government that are passed, imposed, or exercised in excess or abuse of the express authority granted in the Constitution are not enforceable. If there is no proper foundation for the action, then that action is null and void and a state has the right, in fact the duty, to refuse to enforce it on its people. Nullification is an essential principle to ensure that the People are insulated from federal tyranny.
Nullification is a legal theory rooted firmly in constitutional history and based on the very limitations articulated in the US Constitution, specifically the Tenth Amendment and Article VI, Section 2 ("Supremacy Clause"). It is based on the federal nature of our government (separation of powers; "dual and competing sovereigns"), on the Supremacy Clause (only those laws made "in pursuance to the Constitution" are supreme and therefore trump state law), and most strongly, on the compact nature of the Constitution (the states formed the Constitution as a compact, agreeing to delegate some of their sovereign power - certain specified powers - to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a "right to judge for itself" the extent of the federal government's powers). The compact - the social compact - that the states signed in forming the Union in 1789, is similar to contract law. Contracts, as we all know, outline the obligations and benefits to each of the signing parties. The parties are likewise bound by the express language of the contract. We understand this theory and this issue of contract construction as we all have signed contracts. If one party attempts to change the terms or exceed authority under the contract, the other party can either chose to ignore the perverted exercise of contract power or can break the contract altogether.
The fundamental basis for government and law in this country, as in most societies, is the concept of the social compact (or social contract). Social compact is an extension of Natural Law (upon which our Declaration is based) which states that human beings begin as individuals in a state of nature and then organize into societies for mutual benefit. They create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. James Madison confirmed the nature of the US Constitution as a social compact in Federalist No. 39.
The key features of a social compact are: (i) retention of natural rights; (ii) common defense of those rights; and (iii) limitation of government power.
Now, it is true that the compact assures that the Constitution and the laws made in pursuance to it (Article VI) shall be valued as the supreme law of the land, but the converse is equally true. All power not expressly granted is reserved by the States and on those objects, state law is supreme law. This is our system of dual sovereignty. That is the brilliant design feature of our American government system which our Founders believed would ensure the protection of our God-given rights. But unfortunately, our Founders thought the government could be trusted to respect its boundaries, to protect that "precious jewel" that is liberty. They believed that if the branches of government were "advised" that their particular actions were unconstitutional, they would quickly remedy the situation and undo what they had done.
Hah, fat chance that was going to happen. It was only a few years into the operation of the federal government when it attempted, successfully too, to enlarge its powers and redefine the terms of the Constitution. And that's when our most important Founders - Thomas Jefferson and James Madison - had to remind state leaders why we fought the Revolutionary War in the first place and what their fears had been when considering ratifying the Constitution. That's when Jeffersonian Nullification was born. It was born out of the notion that the federal government must not be permitted to hold a monopoly on constitutional interpretation, for if it has the unchecked power to judge the extent of its own powers, it will continue to grow and encroach on the rights and liberties of the People and the States.
In his written assurances to the States that the Constitution was delegating only limited powers from them to a federal government, Alexander Hamilton wrote in Federalist No. 78: "Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
In order that the States (and the People) be completely assured of what precise objects that their sovereign power was being delegated to the government for, James Madison explained it in the clearest of terms in Federalist No. 45:
"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 Federalist No. 26, Alexander Hamilton wrote: "The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent."
And with this duty to protect its citizens against encroachments from the federal government - to be both their VOICE and their ARM of discontent - we see the seeds that were sown for Nullification and Interposition (the duty to intercede and prevent the usurpation and "arrest the evil").
Our Founders understood the nature of power.... Power can only be checked by power.
In the Kentucky Resolutions of 1799, which questioned the constitutionality of the Alien & Sedition Acts, Thomas Jefferson wrote:
"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..."
In the Virginia Resolutions of 1798, also addressing the unconstitutionality of the Acts, James Madison wrote:
"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.."
Historians and constitutionalists explain the Jeffersonian theory of Nullification in a way that is slightly misleading. They teach us that constitutional theory allows a state the right (and perhaps even the duty) to nullify, or invalidate, any federal law which that state has determined to be outside the powers delegated to the government under the Constitution. In other words, they say, a state has the right to determine when a federal law is unconstitutional and therefore decide not to enforce it.
Nullification is actually simpler than that. We live in a country founded on the notion of Individual Sovereignty - that man is supreme and government flows from the sovereign rights and powers of the individual. In our free society, founded on the supremacy of individual rights, constitutions were drafted to list those powers that the people agreed to delegate to their government for the protection of their rights and the orderly management of their communities. The US Constitution was no different. All other powers were retained by the People. Laws are only enforceable in such a constitutional republic when there is express authority granted by the People to do so. Consequently, when the federal government passes a law that exceeds or abuses power delegated in the Constitution, that law is AUTOMATICALLY NULL and VOID. It is automatically unenforceable on a free people. Judges are SUPPOSED to declare it void (to put that official check on the legislative branch and force them to repeal the law), but even if they don't, the law is already null and void. The federal judiciary was originally intended to be a "check" and was supposed to "advise" only. It was intended to be the weakest of all branches.
So, under the doctrine of Nullification, the states don't really declare laws to be null and void. Rather, they recognize that certain laws are null and void. Then they exercise their duty to maintain the integrity of our free society by refusing to enforce any unconstitutional law on their citizens.
There is no easier way for tyranny to take hold than for a People to remain silent when they know, or should know, what their rights are. There is no easier way for a government to usurp the natural rights of a People to govern themselves than to stand by and let that government legislate when it has no authority to do so.
The early colonists certainly didn't miss an opportunity to stand up for their rights. In fact, the Sons of Liberty formed (much like today's Tea Party and Tenth Amendment Center) to point out where Britain was violating their rights and to help organize opposition and protest. Samuel Adams, the leader of the Sons of Liberty in Boston, wrote the following in 1769 with these words:
REVOLVING time hath brought about another anniversary of the repeal of the odious Stamp Act, - an act framed to divest us of our liberties and to bring us to slavery, poverty, and misery. The resolute stand made by the Sons of Liberty against the detestable policy had more effect in bringing on the repeal than any conviction in the Parliament of Great Britain of the injustice and iniquity of the act . It was repealed from principles of convenience to Old England, and accompanied with a declaration of their right to tax us; and since, the same Parliament have passed acts which, if obeyed in the Colonies, will be equally fatal. Although the people of Great Britain be only fellow-subjects, they have of late assumed a power to compel us to buy at their market such things as we want of European produce and manufacture; and, at the same time, have taxed many of the articles for the express purpose of a revenue; and, for the collection of the duties, have sent fleets, armies, commissioners, guard acostas, judges of admiralty, and a host of petty officers, whose insolence and rapacity are become intolerable. Our cities are garrisoned; the peace and order which heretofore dignified our streets are exchanged for the horrid blasphemies and outrages of soldiers; our trade is obstructed ; our vessels and cargoes, the effects of industry, violently seized; and, in a word, every species of injustice that a wicked and debauched Ministry could invent is now practiced against the most sober, industrious, and loyal people that ever lived in society. The joint supplications of all the Colonies have been rejected; and letters and mandates, in terms of the highest affront and indignity, have been transmitted from little and insignificant servants of the Crown to his Majesty's grand and august sovereignties in America.
These things being so, it becomes us, my brethren, to walk worthy of our vocation, to use every lawful mean to frustrate the wicked designs of our enemies at home and abroad, and to unite against the evil and pernicious machinations of those who would destroy us.
Originator of the concept of Nullification - Thomas Jefferson: Above.
From a small, secret group of agitators in Boston and in Connecticut, the Sons of Liberty grew to the point that there was a group in every one of the thirteen colonies. They organized demonstrations, circulated petitions, published newspaper articles, distributed flyers and handbills, and in general did all they could to bring the message of liberty to the colonists. But it was their simple acts of civil disobedience - like protesting a tax on tea by dumping 342 chests of tea into the Boston Harbor, protesting the tax on documents (Stamp Act) by forcing officials to the Crown to resign or to refrain from unloading ships from Britain, or forming angry mobs in response to the Quartering Act - which prevented the enforcement of some of the acts of Parliament that the colonists found intolerable. It was when the King responded with further punitive and oppressive measures - which Jefferson would refer to as "abuses and usurpations" - it was clear the colonies would have to declare their independence in order to remain free.
By frustrating the enforcement of the Stamp Act and the other intolerable, the Sons of Liberty exercised their early right of nullification. They recognized that the British Parliament had no right to legislate for them when they were not provided representation, as guaranteed in their English Bill of Rights of 1689. Any piece of legislation that is passed without proper authority is automatically null and void and cannot be rightfully enforced. This is the basis of the doctrine of Nullification. The Sons of Liberty stood up for this principle and energized the colonists to stand up for their rights and especially their right NOT TO SUBMIT to laws that were not properly passed in accordance with their government charters.
Nullification, as you can see, is an important check and balance on the power of the federal government, which seeks, at every turn, to enlarge and concentrate its powers and to pervert the meaning and intent of the Constitution. There has been no greater enemy than the federal courts which now openly, flagrantly, and arrogantly declare that the Constitution is a "living, breathing document" that is to be re-interpreted willy nilly and as they, the judges, believe will best reflect and serve the social norms of the day.
In fact, Nullification is probably the most important check and balance of them all. Dual and co-equal sovereigns, each jealously guarding their respective sphere of power, will maintain that delicate balance of power that our Founding Fathers designed and which the States themselves agreed to. It's the same way that two skilled attorneys, adversarial in nature (the prosecution and the defense) will aggressively provide that justice is served. And it's the same way that two political parties, one to the left in its ideology and the other to the right, will ultimately assure that policy remains somewhat in the middle so that our society is tolerable for everyone.
In Federalist No. 33, Alexander Hamilton asked and answered an important question: "If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify." Hamilton doesn't limit the measures that people can use to redress the situation when government oversteps the bounds of its authority. According to Hamilton, the remedy should be in proportion to the violation. If we are to take Hamilton at his word for the government's taxing power, we should, with the same enthusiasm, take him at his word for the ability to push the government back within the bound of the Constitution.
Referring to the title of this article, the truth is that Nullification is a valid constitutional doctrine reserved "in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact (US Constitution)." James Madison, Virginia Resolutions of 1798. The states, who wrote, debated, amended (Bill of Rights), and ratified the Constitution to create the federal government are the rightful parties who have the authority, and are indeed "duty-bound, to interpose (intercede) for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them." Virginia Resolutions of 1798. The fallacy is that the Constitution itself, through the Supremacy Clause, renders Nullification an illegitimate remedy. The fallacy is that the Supreme Court, as the ultimate authority on the intent and meaning of the Constitution, has rejected the doctrine. The fallacy is that Nullification was the favored state remedy of slavery proponents and white supremists.
The remainder of this article is devoted to the fallacies.
Critics are quick to say that the theory of nullification has never been legally upheld and in fact, the Supreme Court expressly rejected it - in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958. They say that the courts have spoken on the subject and have held that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.
The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of Nullification as the other branches are. As will be discussed later, the federal judiciary was the first branch to enlarge its powers, in the case of Marbury v. Madison.
Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action "supreme." They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch - a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; ...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby..." The is no debate that the Constitution, as originally drafted and defended, and as intended and ratified, designed a government of limited powers. Therefore it follows that only laws passed to legislate for the limited functions listed in the Constitution are supreme. Regarding objects and designs not expressly listed in the Constitution, the Ninth and Tenth Amendment remind us that they are reserved to the People or the States, respectively, and the federal government can claim no such supremacy. The Supremacy Clause states a preemptive doctrine that asserts sovereignty just as equally as the Ninth and Tenth Amendments assert sovereignty.
Hamilton continued in Federalist No. 33: "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. 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."