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. - James Madison, Federalist 45
Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt
Read that again: "The legislature of the state of
For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of
This language seems pretty clear to me. Ms. Rice's bill says that
But a state can't do that...can it?
Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts – this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:
What is Nullification?
From the Random House Unabridged Dictionary:
Nullify - (verb)
1. to render or declare legally void or inoperative: to nullify a contract.
2. to deprive (something) of value or effectiveness; make futile or of no consequence.
Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
A Short History of Nullification
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws.
And now, with that short introduction out of the way, let's get to the meat of the issue.
Is Nullification Constitutional? Compact Theorists versus Nationalists
In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of
As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865) may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.
Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from
Following the Declaration, the new American states began working on a plan of
The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the
In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (
Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, "between the states") demonstrates for us. Patrick Henry, speaking in
Sovereignty and State Powers within the
Those who reject doctrines such as nullification and secession often point to the "Supremacy Clause" in Article VI of the Constitution, where we read: "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, any Thing in the Constitution or Laws of any State to the Contrary not withstanding." Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.
The powers of the federal government are, as the Constitution itself clearly states, "delegated," not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the
An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the
But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger 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
These concepts were echoed by Thomas Jefferson and James Madison in the
Kentucky Resolution: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States…that to this compact each State acceded as a State…that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself…"
Virginia Resolution: "RESOLVED…That this Assembly most solemnly declares a warm attachment to the Union of the States…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 are parties; as limited by the plain sense and intention of the instrument constituting that compact…"
A Constitutional Right to Resist
It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are "acts of usurpation," as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.
In light of this, Andrew Jackson's assertion that nullification is "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed," is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the
Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments...
Nullification - a state exercising its natural right to self-defense in protecting its reserved rights and powers - is not destructive of any of these things that
Responses to Two Common Objections
What about the Courts?
Some of you who read this article will inevitably ask: "What about the federal courts? Aren't they supposed to determine the constitutionality of a law or a given action?" Over time, nationalists -- thanks primarily to Chief Justice John Marshall's decisions early in the country's history -- have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is "not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."
The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution's greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all "cases in law and equity arising under this Constitution," and Article VI states that the Constitution is the "supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing." As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt – or, as
Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how "Judge so-and-so" votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.
The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson's solution to the clash of federal versus state authority and constitutional ambiguities:
But the Chief Justice [Federalist John Marshall] says, 'there must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the
Wouldn't Nullification lead to Anarchy?
Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!
The assumption here seems to be that, should nullification ever come into fashion, that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:
First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles – such as providing for the common defense – and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, "It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions." As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.
Secondly, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between
Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.
Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.
Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds –
Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution's fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, "The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so."
The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow
Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place – while such is still possible. Benjamin Franklin once said, "We have given you a Republic, if you can keep it." Simply put, nullification is all about "keeping it".