Nullification in One Lesson
“There’s not much attention paid to the Constitution in Washington. There’s not much attention paid to it by our executive branch of government. And we don’t get much protection from our courts. So one thing that might finally happen from this if the people finally feel so frustrated that they can’t get the results out of Washington — They’re going to start thinking about options. They might start thinking about nullification and a few things like that.” – Rep. Ron Paul
For anyone unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president Thomas Jefferson when he authored what came to be known as the Kentucky Resolutions of 1798. The resolutions made the case that the federal government is a creature of the states, and that states have the authority to judge the constitutionality of the federal government’s laws and decrees. He also argued that states should refuse to enforce laws which they deem unconstitutional.
James Madison wrote a similar resolution for Virginia that same year, in which he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state’s legislature is “duty bound” to interpose its power and prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.
These two documents together came to be known as The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, and the phrase, “Principles of ’98″ became shorthand for nullification and / or interposition. Over time, “The Principles of ’98″ would be invoked by many other states, many times for a variety of issues.
A LITTLE MORE
But in order to best-understand what Nullification IS, you should first understand some things nullification is NOT.
Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.
So just what IS nullification and how does it happen?
Nullification is any act or set of acts, which has as its end result, a particular federal law being rendered null and void, or just plain unenforceable in your area.
Nullification often begins with members of your state legislature declaring a federal act unconstitutional and then committing to resist its implementation. It usually involves a bill, passed by both houses and signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law, or it might even amend your state constitution. In this case, it is quite simply a refusal on the part of your state government to cooperate with, or enforce a particular federal law it deems unconstitutional.
The same process can happen on a local level too. Your county board of commissioners or city council might take up a measure that rejects or resists a federal law. Once it gets passed, all local agencies might be required to refuse compliance with any federal agents trying to enforce the federal act in question.
In either case, Nullification carries with it the force of state or local law. It cannot be legally repealed by Congress without amending the U.S .Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court if the people in the state reject the Court’s opinion. It is the people of a state or local commnunity asserting their rights, acting as a political society in its highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand, and slavish, unlimited submission on the other.
It is the constitutional remedy for unconstitutional federal laws.
With the exception of a constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), these actions to nullify an unconstitutional federal law without resorting to extra-legal measures or violence. But such measures would more than likely backfire, since most Americans still believe might does not make right.
There is no question as to whether or when such “official” nullification will happen: It has ALREADY HAPPENED.
In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it.
With Massachusetts voters approving Question 3 on November 6, 2012, there are now 18 states that have legalized marijuana use for limited medicinal purposes – in flat out defiance of the Congress, the Executive Branch and the Supreme Court.
There was a time when the federal government took the Constitution seriously enough that Congress actually did what was required to enact a nationwide ban on a substance – amend the Constitution. Even though the experiment would eventually be viewed as a failure, the 18th Amendment was passed, and the era known as “Prohibition” began. Four years later, it was repealed.
Burt when it comes to marijuana prohibition, the feds pulled another trick out of their sleeves. All three branches of the federal government agreed on a very novel, liberal interpretation of the “commerce clause,” allowing them to regulate virtually any substance, including marijuana, even though legal commerce involving pot doesn’t exist. Since that time, the federal government has claimed, with a straight face, that it has the power to regulate and ban a plant grown in your own back yard, never sold, and never leaving your property – all under the interstate “commerce clause.”
But the states just aren’t buying it and it has implications far wider than they want you to know.
Mark Kreslins points out:
“..medical marijuana now poses a real threat to the enforcement power of the Federal Government. With state after state defying Washington D.C. over this issue..Washington D.C. has a choice to make; enforce their laws based on a very liberal interpretation of the Commerce Clause by sending thousands of DEA agents into all fifty states, or look the other way. Thus far, they’ve chosen to look the other way, for if they create the appearance of a Federal takeover of police powers in the States, they will fully expose their extra-constitutional behavior and provoke a direct confrontation with the States who will use the 10th Amendment (hopefully) to defend their prerogatives.”
Whatever your view may be regarding marijuana use, medical or otherwise, one thing is apparent: Nullification is happening right now, and it works! Washington DC will just have to get used to it because this same method can be applied to virtually any issue.
In fact, this type of action is building on many issues, including resisting so-called “indefinite detention” powers or violations of the 4th amendment by the TSA. Pick a constitutional violation, and say NO in your state, county, city, or town.
That’s the blueprint. When enough people stand up and say NO to a federal act or mandate – and enough states pass laws backing them up, there’s not much the federal government can do to force their unconstitutional rules, laws or mandates down our throats.
What remains to be seen whether state governments will be willing to use their power to “officially” interpose themselves between agents of the federal government and the people of their state. In the unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defiance of unconstitutional federal laws, will that state’s government have the courage to hamper or even neutralize such extra-legal measures?
There are a whole host of peaceful actions that a state government can adopt if that day comes, or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s department of revenue.
Besides state interposition, the other thing Washington would have to consider is whether enough of their agents would actually obey orders to punish people for exercising their constitutional rights. There is a significant chance that enough of them would either publicly or privately decide in advance to ignore such orders. As the probability of this increases, it becomes more likely that Washington will not risk overplaying its hand. The reality is that Washington just doesn’t have the manpower to enforce all of their unconstitutional laws if enough states choose to defy them.
Of course, it all depends on the people of the several states: ordinary people like you and I.
Although I’ve discovered that there are more elected representatives at the state level who are committed to acting in a courageous and principled manner than I ever dared hope, most of their peers lack such a brave commitment. Most of them will stick their head in the sand, or sit on the fence, until they determine which way the wind is blowing. And so it’s our opinion, not the opinion of the American people in aggregate, but our opinion as citizens of our respective states, that will influence the decision of our state representatives to either stand tall or to kneel down and knuckle under.
Question: do you even know the men and women who represent you? I’m not talking about those who represent you in Washington, but rather in Phoenix, Salem, Sacramento, Salt Lake City, Denver, Austin, Oklahoma City, Tallahassee, Atlanta, Nashville, Richmond, Harrisburg, Indianapolis, Columbus and Springfield.
If you don’t know them, and you care about our republic, you should make it your highest priority to get to know them and establish rapport with them as soon as possible.
For any of you who really want to preserve our union, and at the same time retain your rights guaranteed by the Bill of Rights, I can’t say it any better than 2008 presidential nominee of the Constitution Party, Chuck Baldwin:
“..it is absolutely obligatory that freedom-minded Americans refocus their attention to electing State legislators, governors, judges and sheriffs who will fearlessly defend their God-given liberties..as plainly and emphatically as I know how to say it, I am telling you: ONLY
THE STATES CAN DEFEND OUR LIBERTY NOW! ..this reality means we will have to completely readjust our thinking and priorities.”
Michael Maharrey and Michael Boldin contributed to this article.
Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast “Principles of ’98” can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here.