What if the Supreme Court Does Not Do the Right Thing? Nullification anyone?

Nullification

Preserves

State Sovereignty!

 

Many erstwhile Americans that believe in the original intent of the Constitution are dismayed at today’s ruling on the Arizona immigration reform law. Many are worried what will happen if Obamacare is up held later this week?  What happens when the Federal EPA closes our Coal fired power plants in Ohio later this year? What happens if Obama wins re-election and shuts down our Nuclear Power plants?

 

The Coalition Of Freedom has been working diligently to gain support from liberty minded Ohioans to pass an Ohio sovereignty amendment entitled “Ohioans for Ohio” which will give Ohio sweeping recourse to Nullify many onerous federally assumed powers not granted to the federal government in the U.S. Constitution. Our economy could go south very quickly and without such powers we could bear the brunt of a federal government that is remiss in their duties. The “Ohioans for Ohio” amendment is a one page three paragraph Amendment that allows Ohioans to decide Ohio’s fate and not let a bunch of self-proclaimed geniuses in Washington run our lives for us. The Ohioans for Ohio Amendment is not the PCCOH led OSA Ohio Sovereignty Amendment. That effort had largely fallen short of gaining the required signatures because many thought it too long and cumbersome. While the Ohioans for Ohio proposed amendment does not cover as many areas as the OSA…..it is still a major step in limiting the power of the federal government.

 

The “Ohioans for Ohio” amendment accomplishes many things at once rather than attacking them in a piecemeal fashion. What happens…. If….for instance… the Ohioan’s for Healthcare Freedom Amendment is struck down by the supreme court?….the Healthcare Freedom Amendment is a form of Nullification for just 1 specific item and “Ohioans for Ohio affords Ohio the Opportunity to nullify anything that is Un-Constitutional. The “Ohioan’s for Ohio” amendment will be the last ditch effort to address this intolerable aggression against liberty. Passing the Ohioan’s for Ohio Amendment allows solid legal footing for Ohio to quickly nullify such things as:

 

  • The National Defense Authorization Act… where the federal government may indefinitely detain a U.S. citizen without a trial
  • Federal EPA laws such as the MACT rules that shut down our coal fired power plants
  • Federal Abortion Laws
  • Obamacare
  • Many federally imposed educational rules, regulations, and laws
  • Other mandates that are not in the U.S. Constitution such as Social Security, Medicare, and Medicaid
  • Laws that prevent us from developing our own energy resources
  • Allows Ohio to nullify Nuclear Regulatory Commission laws to allow us to develop our own Nuclear program and commercialize Thorium based nuclear power
  • Allows Ohio to pursue and achieve energy independence
  • Allows us to stop funding radical Islam through our gas dollars
  • Allows us to support Israel by not funding Islam
  • Would greatly reduce many healthcare costs by development of Thorium energy
  • Would allow us to pursue Thorium Energy derived treatments for cancer
  • Would bring jobs back to Ohio
  • Would allow us to develop clean Coal to Liquid Fuels to power cars and trucks

 

Nullification can be achieved by a state in three different ways……..by legislation of the state legislature, by a state supreme court ruling, and by a State Constitutional Amendment. The third method is used if your state legislators do not know their history and do not have the cojones to do their jobs.

 

State nullification of federal law is nothing new and it is becoming quite popular. Virginia, just this year nullified the NDAA National Defense Authorization Act.

 

If you want to learn more about nullification please read on or watch this short video

 

 

 

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.

 

 

 

 

Sovereignty and State Powers within the Union

 

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 notwithstanding.” 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 Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:

 

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 United States.

 

 

And…

 

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 Union…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. . .

 

 

These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:

 

 

The Kentucky and Virginia Resolutions (or Resolves) were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional. The resolutions argued that the states had the right and the duty to declare unconstitutional any acts of Congress that were not enumerated by the Constitution. In doing so, they argued for states’ rights and strict constructionism of the Constitution. The Kentucky and Virginia Resolutions of 1798 were written secretly by Vice President Thomas Jefferson and James Madison, respectively.

 

The principles stated in the resolutions became known as the “Principles of ’98.” Adherents argue that the states can judge the constitutionality of central government laws and decrees. The Kentucky Resolutions of 1798 argued that each individual state has the power to declare that federal laws are unconstitutional and void. The Kentucky Resolution of 1799 added that when the states determine that a law is unconstitutional, nullification by the states is the proper remedy. The Virginia Resolutions of 1798 refer to “interposition” to express the idea that the states have a right to “interpose” to prevent harm caused by unconstitutional laws. The Virginia Resolutions contemplate joint action by the states.

 

The resolutions opposed the federal Alien and Sedition Acts, which extended the powers of the federal government. They argued that the Constitution was a “compact” or agreement among the states. Therefore, the federal government had no right to exercise powers not specifically delegated to it. If the federal government assumed such powers, its acts could be declared unconstitutional by the states. So, states could decide the constitutionality of laws passed by Congress. Kentucky’s Resolution 1 stated:

 

That 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 compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special 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 un-delegated powers, its acts are un-authoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this 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.

 

A key provision of the Kentucky Resolutions was Resolution 2, which denied Congress more than a few penal powers by arguing that Congress had no authority to punish crimes other than those specifically named in the Constitution. The Alien and Sedition Acts were asserted to be unconstitutional, and therefore void, because they dealt with crimes not mentioned in the Constitution:

 

That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, 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,” therefore the act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in addition to the act entitled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, entitled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force whatsoever.

 

The Virginia Resolution of 1798 also relied on the compact theory and asserted that the states have the right to determine whether actions of the federal government exceed constitutional limits. The Virginia Resolution introduced the idea that the states may “interpose” when the federal government acts unconstitutionally, in their opinion:

 

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, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in 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.

 

Several years later, Massachusetts and Connecticut asserted their right to test constitutionality when instructed to send their militias to defend the coast during the War of 1812. Connecticut and Massachusetts questioned another embargo passed in 1813. The supreme courts of both states objected, including this statement from the Massachusetts General Court:

 

A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.

 

Massachusetts and Connecticut, along with representatives of some other New England states, held a convention in 1814 that issued a statement asserting the right of interposition. But the statement did not attempt to nullify federal law. Rather, it made an appeal to Congress to provide for the defense of New England and proposed several constitutional amendments

 

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 Appomattox, Virginia in 1865. Why? Well, because that’s the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley. Ask Rush Limbaugh if you don’t believe me. “Might makes right” is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it “patriotism,” while simultaneously demonizing his opposition as “anarchists” and/or “anti-American.”

 

However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that we offer the following discussion:

 

 

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 Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the “people of the United States” in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

 

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.

 

Is the Union a Consolidated Nation-state, or a Confederation of States?

 

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 Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that “these United Colonies are, and of right ought to be free and independent states.” The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: “At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one.”

 

Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, “All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance…” The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.

 

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 United States.” Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.

 

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 (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only “between the states so ratifying the same” (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: “I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible.”

 

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 Virginia’s ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by “the people of the United States”; however, James Madison countered that idea. “Who are the parties to it?” asked Madison, “the people — but not the people as composing one great body — but the people as composing thirteen sovereignties.” As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a “national government…consisting of a supreme legislative, judiciary, and executive,” but the plan had been rejected, and the word ‘national’ had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a “compact” to which the states had “acceded” (agreed to join) and the new Union as a “confederacy” and a “confederate republic.” The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: “Different confederacies have different powers, and exercise them in different ways…great latitude, therefore, must be given to the signification of the term.”

 

 

 

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 Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by “oath or affirmation”. It is absolutely authorized by the Constitution’s “spirit,” which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The “great object” for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:

 

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 Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other “police actions” and “peace-keeping missions,” none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very “diseases of faction” that Madison and others feared. And as for those “military establishments which have subverted the liberties of the old world,” we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic “crisis” situations, with or without state cooperation and permission.

 

 

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 Hamilton once put it, “evident” — violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a ‘separation of powers’ issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.

 

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 Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.

 

 

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 Washington and the states, except in instances where opposing political parties are involved.

 

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 — New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska’s case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not recognize Daylight Savings Time. Nebraska has the country’s only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.

 

Conclusion

 

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 National Defense Authorization Act and Obamacare as well as many other federal laws are simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate and imprison Americans indefinitely, nor does it allow Washington to force Americans to purchase Healthcare. If the State of Ohio decides to nullify these so-called ‘laws’, it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Ohio’s elected officials are sworn to uphold the Constitution of the United States, of which the NDAA, Obamacare, many EPA laws….etc…etc  are a naked violation.

 

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”.

 

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