What is Nullification?
The concept of Nullification is simple but the understanding of it is a bit more complex that requires a philosophical and historical foundation. This will be provided in the subsequent sections.
In short, the Constitution is a compact between the States to create an agent with specific powers delegated to it. Logically, if the agent were to perform an action that is not part of the compact, the States are not bound to obey.
There is absolutely no other way to interpret the Constitution by the very nature of its existence. The fact that it is a piece of paper with written text is significant within itself. The British did not have a written Constitution and relied on tradition and made it easy for parliament to change the rules from one day to the next. Rights that were protected one day were infringed upon the next. Colonial history, especially after the French and Indian War, is evidence of that.
This provided the motive of the founders to establish a system that would limit the powers of a government. They thought it necessary to have a written document, a contract, to point to whenever an infringement had occurred.
However, the text itself is not sufficient to the understanding. The Intent the founders put behind those words are necessary to comprehend the proper meaning. This is known as “original intent”, and lucky for us all the debates of the signers were recorded.
The following sections will provide proper evidence that will confirm the legitimacy of Nullification. Hopefully you will not only think it legitimate but imperative to put in to practice.
As a disclaimer, it must be noted that this is not a magic elixir that will solve all of our problems but if the majority of Americans understood this concept then a major shift towards liberty will occur.
If “We the people” created the Constitution then it is up to “We the people” to enforce it, otherwise it is just a piece of paper.
In the American system of government, it is imperative to note that the individual human being is the sovereign. In other words, the individual has ultimate authority in which to act within their Rights.
Up until the founding everything had centered on a central authority figure such as a king, emperor, pharaoh, or some body of rulers, who dictated what a person could or could not do.
This philosophy of Rights was prevalent in America from the start and is most notable in The Declaration of Independence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness”
What does this mean?
The very nature of your birth as a human being explicitly affords you Rights including but not limited to Life, Liberty, and the pursuit of Happiness. They can never be infringed upon.
In creating a government from this starting point, an individual has a Right to delegate a Right to a surrogate to act on their behalf. In doing so, the individual is not giving up their Right but merely exercising it.
For example, an individual has a Right to defend themselves and they also have a Right to hire a bodyguard as a surrogate to exercise that Right but that does not mean the individual gives up their Right to defend themselves.
Therefore, as the Declaration continued, “… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
So the philosophical construct of the American system in which the Constitution was created is that individuals delegated certain powers to representatives in their State and those representatives from each State signed a compact that delegated certain powers to an agent, namely the Federal Government, to exercise those Rights on the behalf of the people.
It is important to note that the existence of slavery does not make this philosophy wrong. It only points to the fact that the founders are mere fallible human beings just like everyone else.
The Philadelphia Convention had come up with a Constitution that most believed created a Federal Government that was limited. It specifically said what each branch was allowed to do and anything else they could not do. Most notably, for the legislature, article 1 section 8 listed all their powers.
Afterwards, the document was brought back to the States so the decision of whether to sign it could be made and the debate raged on.
In these Ratifying Conventions the debate was not about whether or not to have a Constitution but rather if the document would limit the government enough, or at all.
In Virginia, we can point out an exchange that represents what was talked about everywhere. A five man commission was set up to authorize the final document that would be signed. Among these men were Edmond Randolph, Virginia’s governor, and George Nicholas who would become Kentucky’s attorney general.
People such as Patrick Henry brought up serious concerns, prophetically, about the document noting that there were certain clauses that could be interpreted to allow the Federal Government to more than was authorized in Art.1 Sec.8, such as the “general welfare” clause.
These are the guarantees to Patrick Henry:
Edmond Randolph – “If in the ratification we put words to this purpose – that all authority not given, is retained by the people…and that no right can be cancelled, abridged, or restrained…I conceive that, as this stile [sic] of ratification would manifest the principles on which Virginia adopted it, (that) we should be at liberty to consider as a violation of the Constitution, every exercise of a power not expressly delegated therein – I see no objection to this.”
George Nicholas – “If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it…They can exercise no power that is not expressly granted them.”
This assurance is the same in all other States. If you were to sign a contract under the complete understanding of its meaning then it could not mean anything else.
There are four clauses in the Constitution that have been abused by the Federal Government to expand its powers beyond what was delegated, just as feared. This section will hope to clarify the intentions behind them.
General Welfare Clause
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States”
This clause is the start of Art. 1 Sec. 8 granting the power to tax and below it proceeds to list the specific powers Congress could tax for. The “common Defense and general Welfare” are the ends to which those powers are to be employed.
“For the…general Welfare” is not a grant of power to do anything that could be considered good for everyone’s well being. If it did then why would the founders even bother listing the powers of Congress?
James Madison made this point in Federalist #41 – “For what purpose could the enumeration of particulars be inserted, if these and all others meant to be included in preceding general power?”
Madison, in 1792, also pondered what it would mean if “general Welfare” was a power –
“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress”
“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes...”
The part of this clause that has caused the most contention is “among the several states.” Dr. Tom Woods explains, “the purpose of the Commerce clause was to establish a free-trade zone through-out the United States (thereby making commerce regular), and prevent States from disrupting the free movement of commerce.”
A problem under the Articles of Confederation was that States would put tariffs on each other, as James Madison explains, “’Among the several states’…grew out of the abuses of the power by the importing states in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
It was never intended to be a power to tax any and all gainful activity.
Necessary and Proper Clause
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
This clause appears at the end of Art. 1 Sec. 8 and is not a grant of power. It allows for supplementary appropriations that Congress may need to carry out the delegated powers. For example, if Congress were to tax for “needful Buildings” then they would have to buy building materials and labor.
This is what the founders understood:
George Nicholas - “it was no augmentation of powers”
Madison said the clause “gives no supplementary powers.”
Archibald Maclaine in NC, “the clause gives no new powers.
In PA, Chief Justice Thomas McKean says it “gives to Congress no further powers than those enumerated”
The Supremacy Clause
“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.”
This clause is widely misunderstood as meaning any law or treaty the Federal Government makes supersede any other law. Well this is true.
However, what is often over looked is “in the pursuance thereof,” which means all laws that are made within the delegated powers are the law of the land and all those that are not delegated are not.
Also, “all treaties made…under the authority of the United States” means all treaties are the law of the land except if they do not fall within the delegated powers. So if Congress were to make a treaty with another country that would restrict Americans from owning guns then it would not be a legitimate treaty.
It is hard to believe that the founders went through all that trouble to limit the government only to have a loophole built in where all Congress had to do to have unlimited power was to make a treaty.
Dr. Tom Woods - “Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”
The Bill of Rights
Even after all the guarantees, the opponents were still very skeptical that the Constitution would provide a limited government. Some wanted extra guarantees of the restrictions on the government. This would be come to known as the bill of rights or the first 10 amendments to the Constitution.
The first 8 would list specific Rights that the Federal Government could not infringe upon. An argument against the bill of rights was that if you started listing rights the government could not infringe upon then that would imply that there were some rights that it could. This is where the 9th amendment comes in.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Finally comes what Thomas Jefferson refers to as the cornerstone of the Constitution, the 10th amendment. It codifies the intent and meaning of the Constitution and solidifies the concept of Nullification.
“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.”
Nullification in Practice
There is no doubt, from this understanding, that the Federal Government has done many things that are beyond the powers delegated to it. Recognizing this is the first step and the easiest. However putting it into practice is a bit more complicated.
It must be noted that to nullify a Federal law does not repeal it, but it is the resistance of the State to comply with the law that makes it inoperable or void of any effect.
For example, in 2005, the Real ID Act was passed by Congress but over 2 dozen States refused to comply with it. So while the law is still on the books, it is not enforced. This is a simple example because for it to work the States had to be the producer and issuer of the IDs.
Laws, like Obamacare, are trickier because it involves the tax system, and interposing the State between the taxpayer and the IRS is not as straight forward. That does not mean that it shouldn’t be done but it will take a lot of tenacity among the citizens of Texas and their representatives.
As James Madison put it in the Virginia Resolves of 1798, “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”