Nullification, the Duty and Right of the States-Pt. 2
by Kris Anne Hall
Click here to read part one.
James Madison gives us this answer regarding the remedy to the states for combating federal overreach. In fact, according to our founders, it was not only the remedy but the DUTY of the states to stand in defense of the Republic.
“…in the case of deliberate, palpable, and dangerous exercise of other powers not granted…the states…have the right, and are in duty bound, to interpose, …for maintaining, within their respective limits, the authorities, rights, and liberties…” Virginia Resolutions of 1798 James Madison
What is this interposition? It is what Jefferson referred to as NULLIFICATION of the unauthorized acts of the federal government. It is the States declaring, “The federal government is NOT our master, the States and the people are the masters of the Constitution and we do not have to, nor will we comply!”
“Whenever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force.” Thomas Jefferson, Kentucky Resolutions of 1798
Nullification is legitimate act of refusing to implement unconstitutional federal directives.
“That the several states who formed [the Constitution], 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 the color of that instrument, is the rightful remedy.” Thomas Jefferson,Kentucky Resolutions 1799
To deny the States this right is tyrannical and is an unconstitutional doctrine. In fact our founders believed that if the States did not refuse to submit to unconstitutional use of federal power, the result would be the elimination of state powers, elimination of the rights of the people, and the complete dissolution of the Union and our Constitution.
“the doctrine which denies to the States the right of protecting their reserved powers, and which would vest in the General Government (it matters not through which department) the right of determining, exclusively and finally, the powers delegated to it, is incompatible with the sovereignty of the States, and of the Constitution itself, considered as the basis of the Federal Union.” Fort Hill Address, John C. CalhounJuly 26, 1831
If the federal government uses a power that it was not delegated, it does so unconstitutionally. The federal government exists solely because of the Constitution. Therefore any act that is unconstitutional destroys the very legitimacy of the federal government’s actions and therefore has no effect whatsoever. Since it has no effect, the States are merely declaring that fact, and are therefore not required to submit.
An epidemic of Constitutional ignorance has made it popular in our day to declare “this is the law of the land because the Supreme Court says so,” and since SCOTUS has said “nullification is not valid,” then it is not a proper remedy, some even claim that it is treasonous. The men who founded the nation found the assertion offensive that the Supreme Court had the ultimate authority to dictate to the States the acts of the federal government.
“The idea 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.” Thomas Jefferson, Kentucky Resolution 1799
To assume that the Supreme Court has the final word on what will or will not be implemented throughout the land is to abandon all power of the states, and throw them into complete submission to a federal power. It would be like allowing a criminal to determine his own guilt or innocence.
“If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution… consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violationsby one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.” James Madison,Virginia Assembly Report of 1800
Even Federalist, Alexander Hamilton made clear that the Constitution is binding upon any branch of the federal government. To suggest that the creature could overrule its creator was to our founders a complete absurdity.
“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.” Alexander Hamilton Federalist Paper #78
It is incumbent upon the STATE REPRESENTATIVES to carry out their oath of office, “support and defend the Constitution of the United States” and be the guardians of the liberty of its citizens. The Governors and Legislatures must draft a Resolution proclaiming the sovereignty of the state and the unconstitutionality of the federal power and asserting the state’s duty to deny said power. That Resolution must then be transmitted by the Governor to the Senators and Representatives representing the state in Congress.
Unwilling to shrink from our representative responsibilities… It would be [deceitful] in those entrusted with the GUARDIANSHIP OF THE STATE SOVEREIGNTY, and acting under the solemn obligation of the following oath, — “I do swear that I will support the Constitution of the United States,” — not to warn you of encroachments, which, though clothed with the pretext of necessity, or disguised by arguments of expediency, may yet establish precedents which may ultimately devote a generous and unsuspicious people to all the consequences of usurped power. Address of the General Assembly to the People of the Commonwealth of Virginia January 23, 1799
When petition fails…when Congress refuses to enforce Separation of Powers and protect the sovereignty of the States…when the Supreme Court joins in the unconstitutional use of power, we cannot admit that revolution is the only solution that remains! Revolution does not save the Constitution, it can only destroy it. There must be another peaceful resolution; and there is: It is called Nullification. For the federal government or the States to deny this method of constitutional remedy is to say they are resolved to the destruction of the Constitution and the potential of driving its people to revolution.
“…our Constitution is most worthless and tyrannical, if the usurpations of those who administer it, cannot be resisted by any means short of revolution. I have always considered the reserved powers of the States, as the only real check upon the powers of the federal government; and I have always considered it, not only the right, but the imperious duty of the States, so to apply that check, as not to dissolve the Union. And I have never been able to discover any mode of doing this, except by the positive refusal of the States to submit to usurpations…” Judge Able P. Upshur, An Exposition of the Virginia Resolutions of 1798 (No. I)
The acquiescence of the states, under infractions of the federal compact, would either beget a speedy consolidation, by precipitating the state governments into impotency and contempt, or prepare the way for a revolution, by a repetition of these infractions until the people are aroused to appear in the majesty of their strength. Address of the General Assembly to the People of the Commonwealth of Virginia, January 23, 1799
Therefore, in upholding their oath the States must stand against any legislation that serves to steal power from the state, thus destroying the Constitution. If the States fail to stand against this tyrannical use of power by the federal government, they will consent to their own destruction, or worse, to revolution.
“Let history be consulted; let the man of experience reflect; nay, let the artificers of monarchy be asked what further materials they can need for building up their favorite system.” Address of the General Assembly to the People of the Commonwealth of Virginia, 1799