Federal tyranny demands a response. But top-down action is futile, considering that the tyranny is coming, well, from the top. Yet, responding through violent protests, social disorder, and chaotic unrest only justifies the holders of power, which then gives them the opportunity to smugly deride all opposition as lawless and illegitimate. However, a tradition exists that allows one to pursue actions against tyranny without sacrificing the rule of law, and ordered liberty.

Without order, the unnatural air of liberty vaporizes into the fog of anarchy. Anarchy then breeds despotism. And the original goal gets devoured by the inevitable nightmare.

The Virginia and Kentucky Resolutions of 1798 borrow upon a long-standing history of civil disobedience, and enforcement of the law in the face of lawless tyrants. Whether in Aquinas, Calvin, Rutherford’s Lex Rex, or the infamous Junius Brutus’s Vindiciae Contra Tyrannous, Western Christendom acknowledged a right of collective self-defense against the lawless actions of a king or emperor; through lesser forms of government, tyranny could be resisted and civil order could be maintained.

The resolutions reflected a political philosophy that looked to the states as the ultimate arbiters of constitutional defense and interpretation, in one sense – the true Court of Last Resort.

In the Virginia resolution, Madison argued for the right of states, which as parties to the compact [Constitution] can denounce unconstitutional federal laws.

. . . and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

In other words, Madison saw the states as the final protectors of constitutional liberties, if faced with a lawless federal government.

In the Kentucky resolution, Jefferson took on a seemingly stronger tone than Madison, and argued for nullification, and the criminality of state compliance in unconstitutional federal laws:

That if those who administer the general government be permitted to transgress the limits fixed by that compact. . . 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 . . . yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal . . .

Jefferson included a lawless Supreme Court within his scope: “[T]hat the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism.”

Nullification is basic bread and butter contract theory: an injunction placed upon further breach. Its history reaches back to the Magna Carta’s audacious claim that the nobles could make the king obey the law – but will it reach forward and claim a place in our present day?

If our noble states cannot make our kingly congress – or even a possible empress-like presidency submit to the law, then power trumps the law. And lost is the western tradition of order, liberty, and resistance to tyrants (by not anarchically becoming them).

Joshua Nuckols

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