June 29th, 2010

Nullification: A Necessary Power for State Sovereignty

The following article was also published at the Tenth Amendment Center.


There has been plenty of chatter in the past year about “state’s rights” (more correctly termed “state’s powers”, as political entities do not themselves have any rights) and the tenth amendment to the Constitution which provides that any power not expressly delegated to the federal government is reserved to the states, or to the people. Concerned citizens of all political persuasions have rallied around the banner of federalism to promote abolishing or restricting federal programs and replacing them with state-based alternatives, or nothing at all.

For all the noise being made by the cacophony of individuals frustrated with the federal government, however, few either understand or are willing to embrace the two key components that would make their goals a reality, rather than a slogan painted on a banner for a tea party protest. In order to demand—not ask—that the federal government limit itself to its constitutionally delegated authority and nothing more, states themselves must have representation in the federal government, and they must nullify any federal law that is clearly outside of the scope of federal jurisdiction.

The first topic has been briefly addressed previously here, but a summary is perhaps important. Prior to the ratification of the 17th amendment, states had representation in the federal government through one of the compromises produced during the Constitutional Convention: the bicameral legislature. Whereas the House of Representatives was comprised of congressmen elected directly by the people and representing their specific interests, the congressmen elected to the Senate, in pairs for each state regardless of that state’s population, were elected by the state legislatures, and it was to these political bodies that U.S. Senators were beholden. As such, the Senate was the congressional representation for states themselves, where their interests could be promoted and their concerns made known.

After 1913, however, the Senate was turned into another body accountable only to the people directly, thus removing the representation states once enjoyed. Since that time, the several state governments have had no voice in the federal government, and now find themselves in the middle of a stronger relationship forged between the federal government and all citizens directly.

Were U.S. Senators still elected by and accountable to the state legislatures, they would exist in a preventative capacity, working to vote down any bills that were deemed to be against a state’s interest, or more importantly, an extra-constitutional power grab on a matter not found under the federal government’s purview. That Senators do not now have any allegiance to the state governments themselves—in other words, this first option no longer even being an option—implies that the second opportunity for helping maintain the balance of federalism becomes all the more important.

To some, nullification is a scary word. The idea of standing up to the federal government in any way is similarly scary for many, but this does not mean that the ability to do so should be eliminated. Nullification implies simply saying “no” when the other party has the moral authority to do so. Imagine a parent telling a child “no” when he tries to take a toy that is not his, or an employer saying “no” when the employee tries to take the company car on vacation. As it relates to government, state governments created the federal government and delegated to it limited and specific authority. Anything beyond these powers is a usurpation, and thus the states, like a more powerful parent, retain the ability to simply say “no” when it becomes necessary to check a wrongful action.

As the efforts of state-elected Senators would serve as a preventative measure, the existence and use of nullification is a reactionary power to be used if and when un-constitutional laws have already been (or will soon be) implemented. It is important to remember that the states existed before, and created, the federal government. The Constitution is, at its core, a contract between the states and the legal codification of powers they have voluntarily assigned to their creation, the federal government. If and when there is a breach of contract by the created entity, the states, as sovereign and superior entities, must have (and use!) a mechanism whereby they can reject the proposed action.

Nullification is a form of civil disobedience—a powerful statement of political non-compliance in the face of aggressive, self-aggrandizing government. Its origins date back to Thomas Jefferson and James Madison with the Kentucky and Virginia Resolutions, and has been used from time to time ever since. For example, in 1833 South Carolina nullified the (federal) Tariff of 1828 which it deemed un-constitutional because rather than being a (constitutional) tariff to raise revenue, it was specifically created as a protective tariff to manage and protect certain industries. A few years prior, New England states banded together and contemplated nullification as well, during the Hartford Convention of 1814, in response to the War of 1812 and the disproportionate damage inflicted upon local commerce due to British blockades. Nullification was used in the personal liberty laws responding to the federal fugitive slave laws, as a method of pushing back against the federal government’s undue expansion of authority.

Though it went out of vogue for some time, the doctrine of nullification has come back with a vengeance, and has found its way into public policy. Whether the discussion rests on REAL ID, “Cap and Trade”, health care, firearms regulation, or a number of other controversial topics, several states have already passed legislation giving the federal government the proverbial middle finger. It may not be referred to as nullification by the state legislatures or the sponsors of the legislation, but make no mistake: states are rediscovering the power of “no” and starting to resist the century-long tradition of federal omnipotence.

States have lost their voice in the federal government, and thus have no reassurance that laws will not be passed that encroach upon their constitutionally-reserved powers. History amply demonstrates the plain fact that the federal government recognizes no restrictions, and once an objective is established, it will do whatever is necessary to achieve it, states and subordinate concerns be damned. As such, the remaining tool of nullification must be increasingly protected, and judiciously implemented, in order to begin effectively fighting back against the federal government and restoring rights and powers that were once commonplace, but now have become an endangered species.

Un-constitutional federal legislation: just say no.

20 Responses to “Nullification: A Necessary Power for State Sovereignty”

  1. The Writer
    June 29, 2010 at 2:53 pm #

    Couple questions, then (and by “couple,” i mean “several”):

    1. Didn’t states pass the 17th Amendment through the Constitutional amendment process? Doesn’t this mean that states utilized their representation to give up their representation?

    2. Isn’t nullification unconstitutional? I see your persuasive argument for WHY you want to use nullification, but I don’t see your legal argument for it’s legitimacy. How do you explain the supremacy clause away?

    3. If states really want control of their senators again, why not argue for the amendment process to repeal the 17th amendment, rather than arguing for a questionable form of civil disobedience (which has never been upheld)?

    4. As a republic, why not exercise the rights of the republic and push back instead of resorting to civil disobedience? Isn’t civil disobedience more appropriate under a tyranny than a functional republic?

    5. Are there parts of the constitution as it now stands that you do not approve of?

    6. Do you believe our republic has descended to a tyranny?

    7. Which founders should we follow? All of them? Or just some of them?

    Curious about your thoughtful and insightful comments on these questions. Thanks for the discussion.

  2. thorpe
    June 29, 2010 at 3:21 pm #

    If a majority of states passed nullification language against specific federal laws it could be very effective in turning back the tide of an ever increasing powerful federal government.

  3. Larry
    June 29, 2010 at 3:42 pm #

    I can’t keep on task long enough to tackle those questions but I am troubled by the lack of buy-in from the general public on the concept of State’s Rights. I’m searching for a term that will resonate with Utahns more than “states’ rights” and “state sovereignty.” We need a PR firm to develop this into a “movement of the people.”

  4. DJ
    June 29, 2010 at 5:03 pm #

    I am excited to read Tom Wood’s new book Nullification. The process that started with Jefferson and Madison should continue. Great research and article Connor!

  5. BoBob
    June 29, 2010 at 8:08 pm #

    @The Writer

    I am not Connor, but I have some definite opinions on the matter. If you disagree, oh well. At least you understand my opinion.

    1. Yes, they did pass the 17th amendment. Some claim it was passed fraudulently. But just as the 18th was repealed, the 17th can also be repealed. It amazes me that many in state legislatures still have not figured out that they became appendages to the Federal government when they lost their ability for representation in the Senate.

    2. No, nullification is not unconstitutional. The supremacy clause has a qualifier for the laws passed to be supreme. It states, “This Constitution, and the laws which shall be made in Pursuance thereof: … shall be the supreme law of the land” (Article VI, emphasis mine). It leaves the states the ability to determine if the laws were passed in pursuance of the Constitution. If a state legislature determines that the laws were not passed in pursuance of the Constitution, they may pass laws forbidding the enforcement of the law within their own borders. Federal officials attempting to enforce such laws can be arrested, fined, and imprisoned for violating the state laws. California and several other states have been beefing up their nullification of Federal marijuana laws with respect to prescribed medical marijuana. The Kentucky and Virginia Resolutions in response to the Alien and Sedition Acts are the first examples of state nullification. None other than the father of the Constitution, James Madison, wrote the Virginia Resolutions, while Thomas Jefferson wrote the Kentucky Resolutions.

    3. Nullification is not questionable and has been used fairly often throughout our history.

    4. We are no longer truly a constitutional republic. Now we are a representative democracy. Push back through nullification is the only recourse we have, until such time that we can become a constitutional republic again. The legal precedence for pushing back through both nullification and civil disobedience is codified in the Declaration of Independence. Without the Declaration, our entire Constitution would be considered the illegal formation of a national government by malcontent rebels.

    6. Have you tried to sell or trade inventory on a mass scale without asking permission from the government first? Buying and selling was considered by the founders to be a fundamental natural right (right to property, pursuit of happiness, life, liberty). Now, we must ask government permission at every turn. I know more unemployed than employed, currently. Most of these unemployed used to be employers, not employees. They could not sustain business because of regulatory overhead. Is this not tyranny?

    Abraham Lincoln was the first individual to practice mass tyranny in the U.S. (Mass numbers of slave owners were the first to practice it with legal protection, but each one was only a petty tyrant). Ever since then, we have had varying degrees of tyranny. From about 1930 on, there has been an increasing tyranny of the mind and of learning. Until recently, much of this tyranny was unnoticed because of lack of information in what liberty really is. (The most enslaved mind is the one that thinks it’s free when it isn’t.)

    7. Avoid Hamiltonians. Our current predicament is the direct pinnacle of Hamilton’s curse.

  6. Kelly W.
    June 29, 2010 at 9:48 pm #

    This reminds me of a DVD my neighbor gave me called “Don’t Tread on Me,” subtitled Rise of the Republic by Gary Franchi and William Lewis, and features R.J. Harris, Michael Badnarik, Tom DeWeese, Alex Jones, Edwin Vieira, Richard Mack, Cynthia Davis and Charles Key.

    The DVD is all about how the States can just say NO to the Federal Government.

  7. Jeremy
    June 29, 2010 at 11:20 pm #

    Excellent as always. Thanks Connor, I may send this to a few people to read, it explains things clearer than I can. =)

  8. Connor
    June 29, 2010 at 11:34 pm #

    I’m short on time to respond to Writer’s questions, so for now, you’ll have to settle for a Zombie’s questions:

  9. The Writer
    June 30, 2010 at 8:44 am #

    http://xkcd.com/760/

  10. Federal Farmer
    June 30, 2010 at 12:47 pm #

    @BoBob

    You realize that during the Nullification Crisis, James Madison campaigned against such an interpretation of the Virginia and Kentucky Resolutions, right?

  11. Brad Carmack
    June 30, 2010 at 7:41 pm #

    Conner, we should have lunch sometime. Do you live in Phoenix or around Provo?
    Thanks for the post. I love the picture too.

    The question of whether a federal action (either by the executive branch or a statute passed by Congress) exceeds the scope of federal power arises fairly often, and is usually resolved in federal court. Thus, the federal court is the primary check on unconstitutional expansions of federal power. Presumably the federal judiciary is an effective check by virtue of their allegiance to the constitution and their independence. What grounds make the states better judges of constitutional excesses by the federal government than the federal judiciary? Perhaps that the state legislatures are more directly elected, and because they aren’t appointed by a federal entity like federal judges are (SCOTUS judges are appointed by the President and confirmed by the Senate, two of the bodies they are charged with checking)? Those are strong grounds. However, having state legislatures adjudicate constitutional disputes they are party to sounds like having Judge John Smith preside over a case, Smith v. Neighbor, where the judge himself is suing his neighbor for assault. In that case, the judge has a significant conflict of interest which casts serious doubt on the fairness of any result of the trial. At the least the federal judiciary, who resolves disputed excesses, is independent of state legislatures and the other two branches of the federal government usually accused of overstepping their bounds. What if Wisconsin decides that an executive branch agency (say, the Dept. of Education) exceeded constitutional authority by making a policy requiring mandatory school searches, and Wisconsin nullified said policy? Let’s say the other 49 states think that the policy is constitutional, as does SCOTUS (Supreme Court of the US)- under that scenario should Wisconsin get to do what it wants? Nullification seems then to lead to/be states achieving their interests through the vehicle of nullification independent of the constitutionality of the federal action they protest since there is no review or check on their judgments of constitutionality. What/who’s then to check a patchwork of inconsistent application of federal law based on state legislatures’ conflicted judgments of constitutionality?
    Conclusion: Though imperfect, I’d say the status quo (federal judiciary, with its independence, predominantly competent officers, and oath of fealty to the constitution) is a better judge of the constitutionality of federal action than a party to the dispute, namely state legislatures.

    Addendum 1- the federal judiciary might be more immune to criticism of independence if it were chosen by a competent but disinterested third party commission, say, a merit selection by old retired federal and state judges, rather than the President, who represents the executive branch that is often a party to disputes SCOTUS hears. On the other hand, we elect and trust the president and senate to appoint the judges on SCOTUS, which isn’t a terrible system, and given how often the President criticizes SCOTUS it doesn’t seem that they’re too close of buddies such that the federal judiciary is overly conflicted.

    Addendum 2- arguably the states do say “no” to the overstepping bounds of the child (federal executive and legislative branches) BY the federal judiciary since they empowered and established it to be the watchdog of constitutionality, and because they allege federal excesses in that court.

  12. Clumpy
    July 1, 2010 at 10:12 am #

    That’s the first zombie I’ve seen made entirely of straw.

  13. Marcus
    July 1, 2010 at 8:49 pm #

    Couple things. I like the article, but I would not say that by putting the direction election of senators into place that the states rights issues were diminshed. If you look at some the more major moves towards the federal government, it would have to be our, both parties, use of the court system. From the interpretation of the commerce clause, to 2nd amendment rights, to abortion rights, privacy protections, race relations, etc. All these things have moved state rights to the federal government. Our over reliance on the courts is a key issue.

    Second, the passing of the 17th amendment was because the people ratified it.

  14. Jeffrey T
    July 2, 2010 at 11:40 am #

    Brad:

    “Nor will it avail to say that such acts would be unconstitutional, and that unconstitutional acts may be lawfully resisted; for everything a government pleases to do will, of course, be determined to be constitutional, if the government itself be permitted to determine the question of the constitutionality of its own acts. Those who are capable of tyranny, are capable of perjury to sustain it.”
    – Lysander Spooner

  15. Richard Bradford
    July 2, 2010 at 1:24 pm #

    We are now governed by “party factional government.” By its nature, it is not, and never will be, capable of governing the whole country. Party factional gov’t only governs for the benefit of the factions making up the party. This is true of both parties. Regardless of which party happens to be in control, it cannot govern for the benefit of all. I have done an exhaustive study of state gov’t positions on healthcare versus the vote in the Senate, and it is conclusive that, but for the 17th amendment, healthcare would not have even made it to the floor. Examples:
    1. Virginia state gov’t position was a clear NO, evidenced by their law and lawsuit. But both VA senators, Warner and Webb, voted yes.
    2. 12 states (on Xmas eve, 2009) had split representation, 1 democrat, and one republican. Due to party control of the vote (the vote was straight party line), those 12 states voted both ways, 1 yes and 1 no, thereby cancelling out their vote as a single state unit.
    3. 21 states are suing over healthcare, Virginia by itself, and 20 states in ther Florida suit. Yet those same 21 states produced 19 “yes” votes in the Senate.
    The 17th amendment has killed the balance written into the Constitution by the framers. I am in contact with many state legislators on this subject. Most did not know they had the Article V power to rectify this horror. Many are close to exercising that power, now that they know that Washington cannot stop them. We are advocating the repeal of the 17th only! No other changes, no other agenda. THIS IS NOT OPEN SEASON ON THE FEDERAL GOV’T! It is only restoring the original constitution, and proper balance.

  16. jasonthe
    July 2, 2010 at 2:52 pm #

    Further down the rabbit hole we go.

    Bemoaning the “evils” of the 17th amendment speaks more to a person’s immaturity on an issue, and complete lack of historical context from which they speak than it is a harbinger of their understanding of Constitutional principle and the Founder’s attitudes toward balanced government. Even just a glimpse of the origins of the 17th lay waste to the transparent arguments supporting it’s repeal. And that same time of conclusion getting has become not just a frequent thing from the uber-right wing, but almost a necessity to perpetuating their angry (yet strangely irrelevant) little perspective.

    When the right realizes it’s being thrown mindless red meat to further careers of a few pandering opportunists, only then will they play a relevant part of discussions on balances of power, and Founder “intent.”

    It’s an important discussion, but the narrow minded, self-righteous, and self-proclaimed diviners of “original intent” seem oblivious to the fact that the more lunatic, paranoid, and devoid of understanding their rhetoric gets, the less people outside of their shrinking circles are listening.

    That pattern, itself, requires a historical context to understand.

    I’m not saying stop, of course. It’s probably the most entertaining I’ve found in politics in the past 15 years of observing. I’m just saying if you want influence, you’ve got to at least be holding onto the real world (which INCLUDES ALL historical footnotes… not just the ones that support your pre-conceived notions) with a few fingers of at least one hand.

  17. Richard Bradford
    July 2, 2010 at 3:57 pm #

    Jason, vitriolic but interesting nonetheless. Remarkably devoid of any argument for keeping the 17th in place. Even with the historical references (some states were already letting the populace elect senators, empty seats due to legislature squabbles and corruption, etc.), the consensus today seems to be that it was a grand, progressive experiment in democracy, which has been shown to have failed utterly.

    Regardless of stance on the 17th, researching state legislation points to a path of wholesale nullification, some contemplated, and some by law, which may lead down a more dangerous rabbit hole than a peaceful attempt to restore at least one original principle. Go to Georgia SR 632, which reaffirms the Kentucky Resolution of nullification, and then encourages sister states to contemplate withdrawing their consent to the national government entirely, and possibly starting over. Wudja like that, Jason?

  18. Brad Carmack
    July 6, 2010 at 12:49 pm #

    Jeff:

    Relevant quote from Spooner. Your criticism is a valid one. Yes, the federal judiciary is certainly capable of perjury, and yes the federal judiciary is part of the federal government. However, I posit two rebuttals:
    1) Even if the federal judiciary is not the ideal candidate for judging the constitutionality of federal legislative and executive action, I don’t believe the arguments have yet established that, at the margin, state legislatures are superior candidates. Thus, though imperfect, the federal judiciary may still be the best available candidate for its role as constitutionality adjudicator.
    2) An important role of the federal branch is to check acts of the other two branches. Thus, the federal judiciary infrequently rules on the constitutionality of its own acts (e.g. Marbury v. Madison), but rather on the constitutionality of two other “governments,” or at least branches thereof. Thus, by separating the powers, different “governments” are created such that the conflict of interest problem is mitigated. The historic hostility of the President and Congress towards SCOTUS evidences what can be viewed as a healthy tension between these often adverse branches.

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