After the American Revolutionary War, our founders, having just thrown off the yoke of British oppression, understood that the citizens of our new nation must always retain the right and the means to prevent the rise of any future tyranny. The Constitution and Bill of Rights strictly limit the power of the central government while reserving for the states and the people of the states the authority to restrain and punish the federal government when it oversteps its constitutional limits.
The ratifiers of the Constitution gave us mechanisms to enforce this restriction on federal authority. The powers granted to the central government were specifically limited to those enumerated in Article I, Section 8, and, by the Tenth Amendment, the states or their citizens retained whatever powers were not listed.
In their writings and speeches, those who ratified the Constitution made it clear and obvious that the federal government is the creation of the states, not their equal partner in constitutional authority. As with any contract between equal partners, the parties may refuse to comply with any edict that falls outside the parameters outlined in the original agreement. In addition, any entity created by those equal parties cannot blatantly disregard the restrictions imposed on it by those that created the entity in the first place.
This concept was clearly reaffirmed by the states in their ratifying documents as well as by the men who wrote the Constitution and championed its ratification by the colonies.
“Where powers are assumed which have not been delegated, anullification 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“
The last refuge for those who deny the legality and constitutionality of the nullification process is the Supremacy Clause of the Constitution, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.
By this standard, a federal act can only be considered “the supreme law of the land” if it has been made “in pursuance” of the Constitution; that is, the act must comply with the limitations on the federal power spelled out in the Constitution.
Students are taught that, according to the Constitution, the Supreme Court has the authority to interpret the Constitution and to decide on the constitutionality of laws, rules, and regulations enacted by the federal government and/or any of its agents.
This is, in fact, not true.
Like Congress and the Executive Branch, the Supreme Court is a creation of the States, not their equal partner. If the federal government could use the Supreme Court, one of its branches, to define the extent of its own authority, there would effectively be absolutely no limit on federal power. The people would, therefore, be left defenseless and without remedy when that government exercises powers it was never meant to have in the first place.
St. George Tucker, who wrote the first commentary on the Constitution in 1803, gave this explanation:
“The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it – the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituent?”
Nullification was viewed by those who wrote our Constitution as the final resort and rightful remedy of the States and their citizens to prevent the federal government from exceeding the limits of its constitutionally mandated power and, thereby, stealing our rights and our freedoms.
~ Dr Dan and Michael Maharrey
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