Nullification: An Unconstitutional Remedy

Original Source 

I have included the entire article from the NC Institute for Constitutional Law below in order to give the readers an opportunity to comment on its content. An opinion which bases itself on a ruling of the Supreme Court instead of the Constitution speaks for itself. As we have seen since Marbury v. Madison, this “Court” has one purpose: to increase its power.

I agree with Stewart Rhodes of Oath Keepers: nullification first, then civil disobedience if that fails and then revolution to restore our Constitution. While I have doubts that our North Carolina legislature has the courage to stand up for our 10th amendment rights, Sacred honor requires that we take these measures in order. As for the conclusion offered below, I will side with Jefferson and Madison over unlawful interpretations of the Constitution. We all know that this nullification effort is directed against the affordable health care legislation which is an abuse of the Constitution and the people.

David DeGerolamo

NC Institute for Constitutional Law

Introduction

Recently, some groups have attempted to revive the doctrine of nullification, which holds that a state can invalidate what it believes are unconstitutional federal laws based on states’ rights under the Tenth Amendment to the U.S. Constitution. Nullification is not a new idea, having come to life in the Kentucky and Virginia Resolutions of 1798 and again at various points in U.S. history.  John Dinan, Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism, 74 Alb. L. Rev. 1637, 1639-1640 (2011).  However, nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution. U.S. Const. art. VI, cl. 2;Marbury v. Madison, 1 Cranch 137, 177 (1803).  It should be no surprise, then, that nullification has never been widely accepted as a solution to alleged unconstitutional federal actions, and it has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958).  Though nullification may be an attractive option for those who feel the federal government has encroached too far on the powers of the states and the rights of citizens, it is not a constitutional remedy.

Past Assertions of the Nullification Doctrine

At best, the history of nullification can be characterized as a “checkered past.” Ryan Card, Note & Comment, Can States “Just Say No” to Federal Health Care Reform? The Constitutional and Political Implications of State Attempts to Nullify Federal Law, 2010 B.Y.U.L. Rev. 1795, 1798 (2010).  Modern-day nullification supporters are quick to point out that James Madison and Thomas Jefferson are credited with first proposing a form of nullification in the Kentucky and Virginia Resolutions of 1798 as a means of opposing the suppressive Alien and Sedition Acts.  Drew R, McCoy, The Last of the Fathers: James Madison & the Republican Legacy, 139 (1991).  During the Nullification Crisis of the 1820s and 30s, John C. Calhoun and other South Carolinians claimed to take up Madison and Jefferson’s mantle as they pushed for nullification of federal tariffs on imported goods.  McCoy 139-40.  Although these nullifiers “posed as Madisonians and Jeffersonians of the first order,” James Madison, who was still living, disputed their claims.  McCoy 140. “Madison intensely criticized and rejected Calhoun’s theory of nullification,” saying that allowing a single state to nullify a federal law “would ‘altogether distract the Govt. of the Union & speedily put an end to the Union itself.’” Card, 2010 B.Y.U.L. Rev. 1795, 1810-1811. In both private and published letters, Madison argued that the nullifiers misunderstood the situation in 1798 and had perverted the principles he and Jefferson had expounded in the Resolutions three decades prior.  McCoy 140-41. Madison maintained that the Resolutions had been a tool to galvanize public opinion and effect reform through the ballot box, “within the purview of the Constitution,” ultimately leading to Jefferson’s election as President in 1800.  McCoy 142.  According to Madison, it was not the goal of the Resolutions to “assert a right in the parties to the Constitution of the United States individually to annul within themselves acts of the Federal Government, or to withdraw from the Union.”  McCoy 141.

Ironically, the doctrine of nullification has been employed by both sides of the issue of racial equality, at different points in history.  Northern abolitionists used it to bolster their opposition to enforcement of the Fugitive Slave Act of 1850.  Dinan, 74 Alb. L. Rev. 1637, 1640. When the U.S. Supreme Court overturned a Wisconsin Supreme Court’s ruling that the federal Fugitive Slave Act was unconstitutional, Ableman v. Booth, 62 U.S. 506 (1859), the Wisconsin legislature passed a resolution declaring, “Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.” Herman V. Ames, State Documents on Federal Relations: The States and the United States, 148 (1906) (available online at http://www.constitution.org/hames/sdfr.htm).  However, in the mid-1900s segregationists in southern states used nullification to rationalize opposition to desegregation.  For instance, in order to prevent federally mandated integration, Arkansas passed an amendment to its state constitution to prohibit desegregation. Timothy S. Jost, Can the States Nullify Health Care Reform?, 362 N. Engl. J. Medicine 869, 870 (2010).  Virginia even went so far as to shut down its public schools in one county.  Jost, 362 N. Engl. J. Medicine at 871.

No Support for Nullification in the Constitution

The Tenth Amendment does not authorize nullification.  It states: “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.”  U.S. Const. amend. X.  The Supremacy Clause declares that federal laws are “the supreme Law of the Land…any Thing in the Constitution or Laws or any State to the Contrary notwithstanding.”  U.S. Const. art. VI, cl. 2.  Moreover, the Supremacy Clause declares that “the Judges in every State shall be bound thereby[.]”  U.S. Const. art. VI, cl. 2.  Moreover, the Constitution vests the “judicial Power of the United States…in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  U.S. Const. Art. III, § 1.  This “Power shall extend to all cases…arising under this Constitution[.]”U.S. Const. Art. III, § 2; See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (affirming the principle of judicial review).

Nullification Lacks Legitimacy and Has Been Rejected by the Supreme Court

Though written by revered Founding Fathers, Jefferson and Madison, the Kentucky and Virginia Resolutions earned only negative response from the North and gained no traction in the South.  Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 117-18 (1969).  In fact, the Resolutions were never endorsed by another state, and were affirmatively rejected by ten states. Card, 2010 B.Y.U.L. Rev. 1795, 1809.  As noted above, during the Nullification Crisis in South Carolina, Madison went to great lengths to distance himself from the nullifiers.  The South Carolina movement failed to gain support from any other state. Card, 2010 B.Y.U.L. Rev. 1795, 1811.  More than a century later, despite a handful of southern states that endorsed nullification as a response to federal desegregation orders, the legal community and courts thoroughly repudiated the doctrine. Card, 2010 B.Y.U.L. Rev. 1795, 1812; Cooper v. Aaron, 358 U.S. 1, 17 (1958).  The unanimous Court in Cooper quoted former Chief Justice Marshall who, speaking for a previous unanimous Court, said “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .”  Cooper v. Aaron, 358 U.S. at 18 (quoting United States v. Peters, 5 Cranch 115, 136 (1809)).  In other words, states cannot nullify federal laws.

Conclusion

While many Americans justifiably feel that the federal government has overstepped its constitutional bounds in recent years, the doctrine of nullification is not the answer.  Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court.  Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.

      
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7 Responses to Nullification: An Unconstitutional Remedy

  1. I find attempts to “nullify” nullification by citing the Supremacy Clause absurd in the first instance. Federal law, and the supremacy thereof, is only sound doctrine when said law is itself written in pursuance of the Constitution, specifically, in pursuance of those powers enumerated in Article I, Section 8.

    Were the NCICL’s assertions valid, the 9th and 10th Amendments would be form without substance. Citing Supreme Court decisions that ignore the plain language and meaning of the Constitution examples Jefferson’s warning about the threat of judicial activism designed to increase its own power.

    When the Supreme Court attempts to convert “rights” to privileges, they have overstepped their authority, and committed “treason to the Constitution,” in the words of Chief Justice John Marshall.

    Perhaps the NCICL should take Jefferson’s advice:

    “On every question of the construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” -Letter to Judge William Johnson (from Monticello, June 12, 1823

    Jefferson also said,

    “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundation of our confederated fabric. They are construing our Constitution from a co-orination of a general and special Government to a general and supreme one alone.” -Letter to Thomas Richie,, December 25, 1820

    I will continue to place my faith in Jefferson, not the NCICL.

    Jeff Lewis
    National Director
    Patriot Coalition

  2. Hans says:

    Let’s address the Conclusion:

    (1) Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court.

    (2) Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.

    Regarding item (1) … would you seriously expect to find, in a legal contract, a description of the mechanism that invalidates the authority of said document ?

    Nullification embodies a philosophy of Liberty expressed in the Declaration of Independence. The Constitution is merely an instrument of Statists who sought central control of the Confederation of free and independent States.

    Regarding item (2) … Definition: Reverence (n) : honor or respect felt or shown : deference; especially : profound adoring awed respect (merriam-webster.com)

    How does one honor and respect a constitution, i.e. a legislative charter by which a government or group derives its authority to act. One might honor it by careful adherence to its construction and intent. A legal document does not, however, warrant “adoring awed respect”.

    An alternative definition of Reverence (n) : ‘the spiritual attitude of a man to a god and a dog to a man’ (from Ambrose Bierce’s Devil’s Dictionary) comes very close to the “adoring awed respect” that I just dismissed.

    The Constitution is no god, and I am no dog in relation to other men.

    We ignore ordinances and statutes of men when they are unjust and infringe.

    We nullify as necessary to preserve our Rightful Liberty.

  3. jsbrodhead says:

    Bull CRAP!

    If We the People have no voice and the FERAL government oversteps the constraints of the Constitution (CONTRACT), then we are only slaves of the United States.
    Amendment X reserves powers not delegated and NOT Congress, nor the Courts, nor the FAUX-king idiot in the WhiteOUThouse, have been delegated authority to enslave We the People!

    Unconstitutional “laws” are not of delegated authority and NO court has the authority to enslave, nor slaughter the innocent People, of ANY age! (their having done so, shows lack of judgement and mercy AND therefore lack of validity)

    Amendment X was integral to the ratified Constitution of the United States of America. All power is retained by the latter of those listed in it: “or to the People.” PERIOD! Either Amendment X stands, or the Constitution falls!

    If the Constitution falls, it’s time to end the usurpers, as the only powers they have are obtained through extortion, intimidation and brute-force tactics.

    Hans is right (if I understand his intent) (1) If the powers are stripped from We the People, the NAMED creators of the legal document, by the incremental, purposeful (or unintended) mis-interpretation of the legal document, then government is NOT implementing powers delegated to it…. it becomes (is replaced by) a single-party contract, to which we are not bound., except by intimidation and force. Single-party contracts are oxymoronic; tyranny and legally uninforcable! We the People have attempted to abide the Constitution in good faith. By re-writing the “Constitution”, the government has nullified itself -- NOT the real Constitution!

    (2) I say the clearly, carefully worded Constitution of the United States of America stands. The FERAL interpretation does NOT! The willful violators of the Oath of Office are traitors, and are, during this time of war -- guilty of aiding and comforting AND BEING the enemies of We the People and OUR Constitutions (U.S. and State), thus deserving of the proper punishment.

    PEOPLE or CITIZEN, Which Are You? http://www.1215.org/lawnotes/lawnotes/pvc.htm

  4. jsbrodhead says:

    The obvious intent of the Declaration and Constitution, was to prevent government taking powers -- the arguments were about how to word the Constitution, such that the lawyer-types would not pick it apart and CREATE loopholes. For the FERAL (sp!) government to act in direct opposition to the known (amply documented) intent, is to violate the letter of the law as well.

  5. The NC Institute for Constitutional Law claims that “nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy…” It claims that the Supramacy Clause settles the issue of nullification.

    WOW, it’s almost as if we are reading 2 different constitutions. I know for a fact that I’m reading the Constitution that was written in Philadelphia in 1787 and the one ratified by the States, after assurances were given for a Bill of Rights (to further limit the powers of the federal government).

    There should be no need for any one of us to try to use our words to dispel this frivolous interpretation by the NCICL. Alexander did a good job of it in the Federalist Papers. Let him explain it to the NCICL. Thomas Jefferson did an excellent job in the Kentucky Resolves of 1798 and 1799. James Madison did a superb job in the Virginia Resolves of 1798. And John Calhoun did an outstanding job in his Fort Hill Address. Any of our Founders and any of these primary documents can argue against the NCICL’s position.

    Federalist #33, published in January 1788 by Publius (Alexander Hamilton), talks about the Necessary and Proper Clause and the Supramacy Clause. This is what Hamilton wrote:

    “But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.”

    Laws must proceed from a valid exercise of power. Just like a judge can’t make a law because he is not granted with authority to legislate, a law that is passed that is not predicated on any power duly delegated to the government under the Constitution has no legal authority and is unenforceable.

    I don’t know about anyone else, but when it comes to what our Constitution means and what our legal remedies are, I take my cue from Jefferson and Madison and Hamilton, and not from a modern-day Supreme Court or self-serving policy of the federal government. The history of the federal government -- all 3 branches -- is a history of repeated attempts to enlarge and concentrate its power. Anybody who fundamentally understands the purpose and goals of the Constitution -- to establish a limited government of defined responsibilities that serves and unites the states but respects the bounds of sovereignty -- knows that the Supremacy Clause does NOT give protection to EVERY action/law/policy of the federal government. Rather, the Supremacy Clause affirms the very nature of the Constitution -- that when laws are made in pursuance of legitimate grants of power, they are supreme and to be treated as such by courts throughout the country. The reverse is therefore true. When laws are not made in pursuance of legitimate grants of power and are instead an exercise in abuse of power, then they are illegitimate and are null and void.

    I suppose the next article to come from the NCICL will support Woodrow Wilson and his “Living Doctrine” view of constitutional interpretation.

  6. How can the NC Institute for Constitutional Law (NCICL) be seen as a credible organization if it fails in its fundamental understanding of our Constitution? We already have enough mis-information going around. We already have Chapel Hill law professors going around shouting “God save us from the Originalist!”

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