A republic if you can keep it!Details
“The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
“One excellency of the Constitution is that when the government of the United States…leaps those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.”
-Elbridge Gerry. Vice President under James Madison.
“If this be treason, make the most of it.”
As Thomas Jefferson made clear when he wrote the Kentucky Resolutions in 1798, Nullification is not something that’s permitted to the people of the states by any document – it’s their natural right to resist oppressive power. From this, one could easily posit that this right is one that the federal government is barred from infringing under the 9th Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
More on the 9th in a future power. Here’s Jefferson:
“that every State has a natural right in cases not within the compact 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”
Some of the so-called “experts” who want you to believe that nullification is invalid because James Madison wrote what seems to be a vehement opposition to it in the 1830s are just uninformed. Others, are just plain liars.
Either way, they’re wrong.
Here’s the deal.
John Calhoun and South Carolina proposed a specific kind of nullification in response to the “Tariff of Abominations,” as it was called. Madison denounced that. He used some serious language to write against it. And he was correct. He repeatedly referred to what he was opposing as “Her” doctrine of Nullification, or South Carolina’s “peculiar doctrine” of nullification.
In other words, he was addressing – specifically – what people were asking him about, and that was the South Carolina proposal that they could invalidate a federal act and the rest of the country would have to assume they were correct unless they held a convention to override the single state.
I’m not going to spend more time on this – because that’s obviously not a federalism ideal. And I agree with Madison’s opposition to that style of nullification – primarily the idea that every other state has to auto-agree with the one nullifying. That’s just not the case.
But, what’s most important about Madison’s “Notes on nullification” is the fact that he did indeed consider nullification, as Jefferson did, a proper remedy.Details
“I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.”