Writing as if he were James Madison, Pete Spiliakos, in his recent article James Madison Keeps It Real On Nullification, (an excellent article I urge you to read) made an interesting argument stating that nullification and interposition were not legal. But before we get to that, let’s look at the rest of his article where he states as Madison that, “Now I’d say that nullification and interposition are two different things. The first is the alleged legal rights of states to suspend the enforcement of any law a state government feels to be unconstitutional within the borders of that state. The second is the power of the state government to protect their citizens from radical violations of their rights by the federal government. I know they sound similar, but they could hardly be more different.”
This is where he goes on to explain the difference between the two concepts. But when you break it down, it is the difference between turning your back and saying I am not going to do that and getting in the bullies face and saying I’m not going to do that and neither are you!
At the Tenth Amendment Center, we have a Model Legislation tab at the top of the page. We offer model legislative bills on different Tenth Amendment issues, and with some there are as many as three different versions.
First, there is a Resolution, which states what Tenth Amendment issue you are raising, and then asks that the federal government stop doing it, a lot like a First Amendment redress of grievances. Second, Nullification, where the Tenth Amendment issue is stated and you refuse to comply and forbid any state officer from aiding or complying with the federal government. Kind of the state version of civil disobedience. And finally comes Interposition, this one restates Nullification but not only will state officials not comply they will physically block federal officials from enforcing the “law” in the state. That’s were things get a little dicey. This is the last option no state wants to be pushed to, but when all else fails they must be willing to push back.
Here is where the author writing as Madison and I part ways, “I’m talking about a state acting relative to the federal government the way the colonies related to the British Government during the Revolution. Interposition is a state stepping in to protect its people [t]he way the governments of the colonies stepped in to protect the rights of the American people in 1775-1776. The state doesn’t have the legal or constitutional authority to interpose, but no group of people have the obligation to allow themselves to be governed tyrannically.”
The second part of the statement I endorse whole heartedly it’s the first part of that last sentence where we differ,” The state doesn’t have the legal or constitutional authority to interpose.”
My biggest problem with the argument is the “legality’ issue. Who has declared the nullification or interposition illegal? To answer my own question, it would be anyone who believes that anything the federal government does is legal, or at least supreme as in the Supremacy Clause.
If that is what you think, I hate to disappoint you but that is not the case.
Please read carefully;
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, anything in the Constitution or laws of any State to the contrary notwithstanding.
The critical words that Hamiltonian nationalist BIG government types seem to skim right over are, made in pursuance thereof (according to). I know this is a hard concept to understand for those BIG government nationalist, but I will try to explain it in simple terms. The Constitution is a plan of government and lists certain things that the federal government can do. Siimply stated, here is a list. You cannot do anything that is not on the list. Period!
Therefore, if the federal government strays off that list and passes a bill assuming powers that are not on the list, then IT IS NOT A LAW. It is no harder than that.
Now I am sure there are some out there jumping up and down yelling Supreme Court! Supreme Court!
You can’t really be serious can you? Think about what you and the Supreme Court are asking the rest of us to believe – that lawyers selected by the President and confirmed for life by the Senate are going the rule against the federal government. You know, the one that gives them a paycheck. If you think I am wrong then how about this statistic, from 1937 to 1995 not a single federal “law” was ruled unconstitutional, and since 1995 only a handful have.
The odds are not in your favor if you are going to bet your liberties on how the Supreme Court will rule.
Since there is no unbiased referee to judge whether a federal action is constitutional, that means that the parties (states) to the contract (Constitution), are to be the final judge as to its constitutionality. Therefore, you may be asking where in the Constitution is the authority for the states to nullify or interpose themselves between the federal government and the citizens of the states.
Well, nullification and interposition are not in the Constitution. These powers are not listed under Article 1 Section 8, listing the powers of the federal government nor are they listed under Article 1 Section 10 the powers that the States are giving up or are they listed anywhere else in the Constitution. So, then how can powers not in the Constitution be Constitutional?
Here is where you will find the power of Nullification and Interposition; it is right there in the Tenth Amendment;
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. (Emphasis added)
The States came out of the Revolutionary War as Sovereign States, and as Sovereign States they created the Constitution, and they only delegated a few powers to the new federal government. They retained all the remaining powers of a Sovereign. At no time have the States renounced their Sovereignty, and as Sovereign States, they are duty bound to protect their citizens from all acts of any government including the federal government, which is their creation.
The first and foremost, power and duty of a State is to protect the lives, liberties and property of their citizens. Call that power anything you want, but Nullification and Interposition are powers that no state can renounce and still call itself a Sovereign State.