Recently, a friend and I were lamenting the steady dissolution of our Constitution. It seemed to us that the further our politicians have strayed from the spirit, meaning and intent of the Constitution, the more enervated, disunited and dispirited our nation and its people have become.
Discussing how best to reverse the decline and to restore Constitutional governance, we briefly alluded to the discredited doctrine of nullification about which neither of us knew very much at all. So, I decided to briefly revisit the subject to see what I could learn. In a nutshell, this is it. I hope it will be of some interest to you.
The Constitution’s 10th Amendment unambiguously provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Over the years, the federal government’s loose and expansive interpretation of the Constitution has steadily led to federal encroachment on state powers and individual rights at a pace and breadth not clearly foreseen by the Founders, leaving this country and its people more divided and polarized than since immediately prior to the "Civil War".
Awakened to Obama's threat of "fundamentally transforming America", and much to the consternation of the Progressives currently dominating the national political scene, many states and many grassroots Americans are now vigorously pushing back and asserting their Constitutional rights of sovereignty and individual liberty. We can only hope it's not too late.
Since Obama's election, Congress has unleashed a transformational legislative blitzkrieg surpassing that of the New Deal which boldly challenges both state sovereignty and individual freedoms as never before. The resulting uneasiness in the country manifestly belies the hollowness of Obama’s hope-and-change and no-blue-or-red-states-but-American sloganeering. To wit, with Obama’s election and the Progressive takeover in DC, not only have gun sales skyrocketed, but, quite unexpectedly, state nullification laws intended to restrain further federal usurpations have ballooned. Clearly, the folks and the states wherein they reside are justifiably wary.
Since 1865 and until now, nullification was viewed as a moribund curiosity which, while having often impacted our country in the past, had essentially become an eccentricity, a nullity in the post-Civil War era. But, as I soon discovered, nullification has returned with a vengeance.
In the Fourth Edition of Black’s Law Dictionary, nullification, aka interposition, is defined as “the doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government. The doctrine denies constitutional obligations of states to respect Supreme Court decisions with which they do not agree.” Indeed, the American Revolution, grounded in Magna Carta principles, was a successful act of nullification coupled with forcible resistance. On the other hand, the American Civil War, aka “War of Northern Aggression” or “Lincoln’s War”, was a notable and costly failure for the nullification doctrine.
Essentially, the nullification doctrine is predicated on the theory that sovereign states comprise the union, and as architects of the compact which formed that union, hold final authority regarding the limits of federal power. Conversely, the “national sovereignty”, aka “nationalist”, theory argues that the Supremacy Clause in Article VI of the Constitution absolutely guarantees federal government supremacy over the states in every way.
However, the “compact” theory persuasively asserts that the Supremacy Clause expressly states that the Constitution “and all laws made pursuant to it” are supreme--NOT the federal government or any laws it may legislate. Further and very importantly, “compact” adherents argue that federal powers are not inherent, but, as demonstrated by Article 1 Section 8 of the Constitution, were delegated by the states to the federal government at the union's inception. In effect, the compact between the states and the federal government provides that the states surrender specific powers to the federal government but maintain those powers not specifically delegated. (In Federalists 32 & 33, Alexander Hamilton espoused the compact theory, as did Thomas Jefferson. On the other hand, I discovered that James Madison, though clearly wedded to the compact theory in the Kentucky and Virginia Resolution of 1798, seems to have, over time, become conflicted and often inexplicably contradictory on this point.)
In any event, once again the “compact theory” is being advanced. Intended to publicly challenge federal usurpation of state sovereignty, this year many state legislatures have passed state sovereignty resolutions. These “shots across the bow”, so to speak, do not have the force of law, but do serve notice to the federal government to “cease and desist any and all activities” outside the scope of its Article 1, Section 8 delegated powers. In effect, these resolutions put the feds on notice that federal encroachment, aka “acts of usurpation” as expressed in Amendments 9 and 10, will not be routinely submitted to as in the past.
Already this year, Tenth Amendment Resolutions have been passed and signed by the Governors in Alaska and Tennessee, and have passed one or both legislative chambers in Arizona, Georgia, Idaho, Louisiana, Michigan, Mississippi, Missouri, N. Carolina, N. Dakota, Ohio, Oklahoma, S. Carolina, S. Dakota, and Virginia. So, it's not just a southern thing, not by a long shot.
In the following states, at least one legislative chamber has, so far, passed legislation asserting that federal regulation of firearms produced, sold and used within the state is beyond the “commerce clause” authority of Congress: Alaska, Montana, and Tennessee. In several other states, similar legislation has been introduced. (Note: to avoid a needless clash, Montana has also opted to test its sovereignty in this regard by submitting its jurisdictional contention to judicial review.) If one can achieve one's goals peacefully, then why not?
Asserting that the imposition of national health care plans is unconstitutional, Arizona, New Mexico, Wyoming, N. Dakota, Minnesota, Indiana, Michigan, Ohio, W. Virginia, Pennsylvania and Florida have introduced legislation to effectively nullify any such federal plan.
Of special interest too is that while the Montana State House also unanimously condemned the REAL ID Act as an improper use of federal legislative power, what was particularly significant is that the bill condemning the Act stipulated that “the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state,” thus underscoring the seriousness of its resistance.
To blunt the takeover of state sovereignty, these particular states are pushing back hard, openly and seriously. The weighty question is whether or not this sudden and widespread state resistance can persuade the feds to back off, or whether this clash over the inviolability of the Constitution’s separation of powers doctrine might eventually lead to conflict.
So, though some of us may have thought that Appomattox settled the question of nullification, it is now abundantly clear that it did not. In fact, the principle of nullification, aka “interposition”, is deeply entrenched in the history of the United States.
In 1793, Georgia successfully nullified the Supreme Court’s ruling in Chisholm v Georgia that an individual could sue a state in federal court without the State’s permission. Most states agreed and the 11th Amendment was soon passed which prohibited such suits. This demonstrated the fact that even if both houses of Congress refused to initiate an amendment process that two-thirds of the states could peacefully compel Congress to call a Constitutional Convention to remedy federal breaches of the Constitution.
Some may recall that in 1798 the legislatures of Virginia and Kentucky, in protest of the Alien and Sedition Acts, resolved that if the federal government presumed to possess the sole authority to determine the extent of its powers, that its power would eventually be unbridled and could, therefore, lead to tyranny. In effect, the Virginia and Kentucky Resolution (co-authored by James Madison and Thomas Jefferson) opined that states not only possessed the right, but were “duty bound” to nullify unconstitutional federal laws.
As Thomas Jefferson wrote, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”
Hard hit by the Embargo of 1807-1809, and in opposition to the finding in United States v The William in 1808 which ruled the embargo constitutional, the Massachusetts assembly effectively overruled that court by asserting that any state could refuse “assistance, aid or cooperation” when any federal act is unconstitutional. The Connecticut assembly went further by directing that all state officials actively withhold “any official aid or co-operation in the execution of the act.” The embargo quickly unraveled.
The Connecticut General Assembly declared: “Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the…states, in such a crisis…vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the embargo.” In effect, the Assembly was asserting a State’s right to “interpose” their protection between the federal government and the rights and liberties of the people.
In 1812, during America’s war with England, the federal government called up the state militias “to execute the Laws of the Union, suppress Insurrections and repel invasions.” Massachusetts, and then Connecticut, nullified the call-up on the grounds that “as this power is not [specifically] delegated to the United States by the Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia, [that being the Governors of those respective states].” Convinced that the federal government’s real ambition was to annex Canada and not merely to defend the union, the Assemblies asserted that unless those states were threatened “by an actual invasion of any portion of [their] territory” that the Commander-in-Chief had no right to call upon the state militias to carry out offensive wars.”
In 1813, a more debilitating embargo was imposed. Flooded with grievances, eventually the Massachusetts General Court asserted that “a power to regulate commerce is abused when employed to destroy it.” The assertion went on to reject the notion that “the free, sovereign and independent State of Massachusetts [should be] reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes.” Again the state affirmed its Constitutional right to “interpose” itself between the oppressor and the people.
Then there was the famous Nullification Crisis of 1832 when S. Carolina undertook to nullify a federal tariff law and a subsequent bill authorizing the use of force against a state. Upshot: a compromise tariff was adopted to avert war. Thus, nullification did have the intended effect.
In 1850, several morally enraged northern states resisted federal attempts to enforce the capture and return of runaway slaves. And although the Constitution at the time did contain a clause to justify enforcement, these states argued that since the Constitution did not specify a clearly defined enforcement mechanism that their compliance would be withheld in those states.
Though there are several other examples of successful nullification initiatives, the point is that the right to nullify and even peacefully secede appear to be valid constitutional remedies to overweening or intrusive federal authority. And, of course, short of nullification, some states have simply ignored federal mandates, e.g. seatbelt and motorcycle helmet laws, Daylight Savings Time (AZ and Hawaii), & participation in No Child Left Behind (Utah).
Worth noting too are the following points which I dredged up: Of the original 13 states, Virginia, Rhode Island and New York conditioned their ratification of the Constitution on the understanding that they explicitly retained the right to secede and the Constitutional Convention never challenged that right. Also, following the Civil War, and only under duress, the state Constitutions of six of the former Confederate states expressly prohibited their right to secede, though one should bear in mind that there is nothing to prevent those states from amending their constitutions and incorporating secession rights. Worthy of note too is the fact that the Constitution does not expressly forbid a state from leaving the union. Thus, it would seem that, short of open rebellion, nullification (interposition) and peaceful secession still appear to be defensible ways of ensuring that federal power, both congressional and judicial, cannot supersede state sovereignty, the guaranteed rights of the people or the sanctity of the Constitution itself.
The Founders clearly understood and espoused the belief that political leaders are best held accountable to the people when government is local; that decentralization leads to a healthier level of state competition and policy experimentation, thus limiting the scope of damages which can accrue when central planning and experimentation is uniformly imposed throughout the country, the rationale being that it is better that a policy experiment fail in one state than in the entire union--the "laboratory of experimentation" concept.
While some today believe that only the serious threat of secession can effectively roll back the suffocating federal usurpation which has already taken place, those state legislatures named above are hoping that a serious “shot across the bow” will check federal power and avert more serious confrontation. Still others have advanced the idea that the nation has become too large to effectively accommodate the Constitutional plan of governance envisioned by the Founders and that, therefore, the nation needs to peacefully break up into smaller administrative units of states, each administrative region acting as an integral part of a confederated republic where the people-to-representative ratio in each region would be more manageable and credible.
Of special concern to many is the increasing power of the Supreme Court to not only re-interpret the Constitution, but to render what many view as unconstitutional and politicized decisions. So how do the states and people restrain judicial overreaching as well? Robert Hawes in his “Nullification Revisited” explained that while the decisions of Chief Justice John Marshall served to implant the heretofore unshakeable notion that the Supreme Court is and ought to be the final arbiter in all Constitutional matters, Alexander Hamilton remarked in Federalist 81 that the Constitution does not empower “the national courts to construe the laws according to the spirit of the Constitution, or give them any greater latitude in this respect than may be claimed by the courts of every state.” He concluded by stating 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.” In effect, Hamilton envisioned the tyranny of a national judicial authority defining its own interpretive powers and “giving it the ability to re-invent itself and evolve beyond its authorized scope.” And for me and many other Americans, the courts have, indeed, become dangerously politicized and, therefore, unreliable stewards of the Constitution. Thus, “compact” adherents would suggest that nullification, secession or a Constitutional Convention are the only legal means of protecting the Constitution and all the rights which flow from it.
As the Tenth Amendment Center noted in a “talking points” post, “We agree with historian Kevin Gutzman, who has said that those who would give us a ‘living Constitution’ are actually giving us a dead one, since such a thing is completely unable to protect us against the encroachments of government power.” Truer words....
Finally, when torn between abiding by the Constitution and protecting one’s rights under the Constitution or submissively accommodating federal overreaching and politicized interpretations of the Constitution, what reasonable remedies are left for a state and the people residing therein? Moral suasion, nullification, peaceful secession, violent secession, civil disobedience, convening a Constitutional Convention to redress Constitutional grievances, or simply ignoring unconstitutional federal mandates. For me, whatever works best to preserve the Constitution and to safeguard life, liberty and property is the right solution.
Food for thought in these perilous times.
(“Ultimately, whether or not a state is allowed to secede is neither a legal question nor a constitutional question, but rather a matter of political will. How strong is the will of the people in the departing state to be free and independent of the control of the world’s only superpower? How far will the US Government be prepared to go in imposing its will on a breakaway republic? Only time will tell.” Thomas Naylor, “The Constitutionality of Secession”)
(“We have given you a Republic, if you can keep it.” Benjamin Franklin.)
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