Opponents of state sovereignty and the states’ power to nullify unconstitutional law argue that federal courts have held nullification unconstitutional.
Jillian Rayfield, in a brilliantly unbiased article *insert sarcastic tone* on TMPDC.com writes:
This “tenther” group touts state sovereignty and nullification — the idea that a state can override a federal law it deems unconstitutional (a notion that has been consistently rejected in federal courts). (Emphasis added)
But doesn’t it seem a little fox guarding the henhouseish to deem a branch of the federal government the final arbiter of what is or isn’t Constitutional? Can we really expect agents of the federal government to protect the states and the people from federal tyranny?
Thomas Jefferson thought so, and he addressed that very issue in the Kentucky Resolutions of 1798 . Our nation’s third president and the author of the Declaration of Independence penned the resolutions for the Commonwealth of Kentucky after the passage of the Alien and Sedition Act, four laws vastly increasing federal power and viewed by many, including Jefferson and James Madison, as unconstitutional.
…the 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.
In other words, state governments and the people have as much right to judge an act unconstitutional as the federal government, and further, to take the action they deem necessary. Courts don’t stand as the final arbiter. Nor does Congress, or the president. That right ultimately lies with the people.
When the federal government oversteps its delegated powers, citizens should first seek to replace the offending representative. Redress through the courts also provides an option. But when the overstep become so grievous and such a threat to liberty that those options no longer remain open, and the people find themselves left with no other form of redress, they can, according to Jefferson, protect their freedoms through nullification.
The people of Missouri recently took that step, voting overwhelmingly not submit to a federal mandate to purchase health insurance. And when enough states bind together, federal power becomes impotent.
Jefferson went on to write:
That in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.
cross-posted from the Kentucky Tenth Amendment Center