Heritage Gets it Wrong: Nullification is NOT Unconstitutional

cross-posted from the North Carolina Tenth Amendment Center

I beg to differ with Heritage Foundation’s David Azerrad’s article New Year’s Resolutions for Conservatives in The Foundry where he states that … “Nullification is blatantly unconstitutional. As James Madison pointed out in 1798, 1800 and again during the Nullification Crisis of 1832, individual states do not have the power to unilaterally declare federal legislation unconstitutional.”

As Thomas E. Woods, Jr. pointed out in his book Nullification and his previous rebuttal Nullification: Answering the Objections article: “If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798 on government powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power.”

The Virginia Resolutions of 1798 were drafted by James Madison and agreed to by the legislature of Virginia, James Madison referred to it as the “Duty” of the state to interpose between and federal government and the citizens of the state.

“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.”- James Madison, Virginia Resolutions, 1798

The Kentucky Resolutions of 1798-99 were based on the ideas of Thomas Jefferson and James Madison wherein it is stated: “… that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.”

”whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force”- Thomas Jefferson, Kentucky Resolutions, 1798-99

The Report of 1800 (sometimes called Madison’s Report or the Virginia Report of 1800) reaffirms The Virginia Resolutions of 1798; wherein the states must Interpose themselves between the citizens of the states and the federal government.

There are numerous other examples of the states expressing their right to tell the federal government they have exceed their authority. The most modern examples of states refusing to go along with the federal government are the Real ID Act and Medical Marijuana.

And finally David Azerrad’s statement, “They have the power — in fact, the duty — to challenge laws they deem objectionable, but this must be done within the existing constitutional framework.” He never comes out and says, but I am assuming what he is referring to, is electing new representatives or installing more “conservative judges” as the way to end an unconstitutional law; that’s worked out well hasn’t it? Asking the Supreme Court, an equal partner in the federal government, to rule that the legislature or the executive have over stepped their powers is like my wife deciding whether David Azerrad or I am correct on the use of Nullification.

For the continued existence of the states under a federal system of government, the states must jealously guard their sovereignty and the sovereignty of their citizens. The division of powers between the states and Washington, like that between the branches of the federal government, serves as an impediment to the growth of an oppressive national central government. Nothing is more important than the vertical division of powers between the states and Washington, even more so than the horizontal separations of powers within the three branches. Madison stated that the most ardent opponents of a central government considered the state legislatures the “sure guardians of the people’s liberties” against violations from the federal government.

Our Declaration of Independence asserted that the people were sovereign and had natural rights; they have passed some of their sovereignty to state governments to exercise for the general good. The states with the consent of their citizens passed some of those powers to a unified government to act as their agent to do specific enumerated things for the good of all the states.

One of the arguments is that states will use Nullification as a way to seize more power for themselves. Which seems more likely, that the states would take back limited powers freely given to their agent or that the agent would want to grow and would seize more powers from the states and the people? It is obvious that the agent has grown ever bigger and is consuming more of the powers and sovereignty from the states and people. It is the nature of government to grow and to become less and less responsive to the people; this is what the founders feared most, and rightfully so. Our system of a divided government will only work if each part follows the written rules, and more importantly that all the branches restrain quests for more power by the others. The states have been letting Washington slowly chip away at their reserved powers, and if this trend is not reversed the states will be reduced to nothing more than provinces of a central all powerful and tyrannical central government.

Finally, a decision must be made; there are only three choices for free people who fear an ever growing centralized government; submission, rebellion or nullification. There is only one choice that preserves our freedoms and our federal republican system of government and that is Nullification. The time for action is slipping away, if we are to save our federal union the states and their elected representatives most reassert state sovereignty; and, if not now when? The future citizens of the several states will not hold us and our elected representatives who failed to protect their rights guiltless: how do you want to be remembered?