The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation.
The concept of ‘nullification’ is gaining increasing attention as a way to check the encroachment of the federal government, and is applicable both in a jury situation as well as at the state level. The discussion of nullification gets right at the correct balance of power between the federal and state governments in our Constitutional Republic.
While the states have a long tradition in the use of nullification of unconstitutional federal law, the most common focus of the ‘nullification’ discussion relates to the Civil War. Thus, mention the concept of nullification in any kind of conversation, and one is instantly accused of being anti-government and wanting to secede from the United States. One is assumed to be in favor of a civil war now–between the states and the federal government, between the left and the right wing, ad naseum. Visions of the Civil War, of course, enable the ensuing if subtle accusations of racism. And current ‘popular’ assessments of nullification assert that the doctrine has been completely rejected.
So to effectively use nullification as a viable tool to restore our Constitutional Republic, three concepts need to be clearly understood:
- Where the sovereign power to control the federal government rests
- The state tradition of nullification
- The Civil War’s initiation and the role of nullification
The Power to Control the Federal Government
From the time of the Constitutional Convention forward, those favoring a consolidated supreme national government have incorrectly asserted that the sovereign power that established and controls the federal government rests in the American people rather than in each of the states and their respective people. This invalid argument has undermined the sovereignty of the states and their people, who through their state government are adequately equipped to check and balance the federal government from expanding its power beyond its constitutional authority…
Martyn Babitz, in the Illusion of Freedom, asserts that the overall American people did not create the Constitution themselves, but did so through their state representatives–as witnessed by the last words of the Declaration of Independence:
We, therefore, the Representatives of the united States of America, in General Congress Assembled….
…and in the Continental Congress that produced the Articles of Confederation, as well as the Constitutional Convention that produced the Constitution. The people of the states sent their elected representatives to act on their behalf. Each state organized their own conventions to ratify the Constitution
Although the American people are a tangible group of people that inhabit the United States, the overall American people are not a political or legal entity under the Constitution. Babitz notes that “every power delineated in the Declaration of Independence and the Constitution is derived from the sovereign power of the people who inhabit the states”.
When describing nullification, a common retort is that ‘there are no such things as ‘states rights’. Here some will assert that “the American people”, not the states wrote the Constitution. Beware this trap, and this opportunity to educate.
Recall the history of ‘states rights’ being derided, ridiculed, and associated with ‘right wing extremism’. The Sagebrush Rebellion is often discussed as the west’s general break-away from federal bureaucrat’s control over the western landscape, and was demonized in the press. The incorrect assertion that nullification was the initiator of the Civil War, is representative of a ‘states rights’ position, and is thus invalid and incompatible with the constitution is designed to drown any initiative against a supreme, national government.
State Tradition of Nullification
The Tenth Amendment Center provides a fascinating history of the long and constitutional tradition of nullification in the United States:
In 1798, the legislatures of Virginia and Kentucky approved resolutions that affirmed the states’ right to resist federal encroachments on their powers. If the federal government has the exclusive right to judge the extent of its own powers, warned the resolutions’ authors (James Madison and Thomas Jefferson, respectively), it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. The Virginia Resolutions spoke of the states’ right to “interpose” between the federal government and the people of the state; the Kentucky Resolutions (in a 1799 follow-up to the original resolutions) used the term “nullification” – the states, they said, could nullify unconstitutional federal laws. These ideas became known as the “Principles of ’98.”
Several events have drawn nullification by states throughout history, some in direct contrast to federal court rulings:
- Embargo of 1807-1809. Because of french and British depredation on American ships, and to attempt to stop the British and French from fighting, Jefferson issued an embargo which forbade any American ship from leaving port, and authorized the Navy to stop and search any ship that was suspected of breaking the embargo. The states in New England were especially hard hit by the embargo as their economy depended on the trade, and although a federal court ruled the embargo constitutional, the Massachusetts legislature thought otherwise. The states of New York, Connecticut, and Rhode Island supported Massachusetts by passing resolutions forbidding any state authority from assisting in enforcing the embargo. This statement by the Governor of Connecticut is particularly relevant:
“Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task – it is their right – it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”
The Connecticut General Assembly followed with this statement:
“Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people…
- War of 1812. Massachusetts and Connecticut were ordered by the President to call out their respective militias to defend their respective coasts under the authority to call the state militias into service “to execute the Laws of the Union, suppress Insurrections and repel invasions.” The States believed that they had the right to determine whether any of these conditions existed. The Massachusetts Supreme Court offered its opinion:
“As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia.”
Supporting the concern that this war was a war of aggression, or an offensive war, and that state-based militias could not be called into national service, Daniel Webster stated:
“Where is it written in the Constitution,” he asked, “in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?”
Further embargoes instituted in 1812 further alarmed the states. Basing their arguments on the Constitution, the Massachusetts General Assembly stated:
A power to regulate commerce is abused, when employed to destroy it
- Fugitive Slave Laws. Although the Constitution did not rule out slavery, additional repugnant laws were passed regarding the so-called fugitive slaves. The northern states simply refused to comply. The Fugitive Slave Law of 1850 brought the wrath of several state governments as to the federal government’s exclusive authority to judge itself, as this statement from the Wisconsin Supreme Court demonstrates:
Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
In each of the instances above, the view of the state relationship with the federal government was that of a compact between a limited federal government and a confederation of independent, free, sovereign states. Indeed, this was the concept advanced in the original definition of ‘federal’:
Consisting of a compact between parties, particularly and chiefly between states or nations, founded on alliance by contract or mutual agreement; as a federal government, such as that of the United States
The derision of states rights and evisceration of the states right to nullify federal legislation seems to follow this more ‘modern’ definition of ‘federal':
“Formed by compact between political units that surrender their individual sovereignty to a central authority but retain limited residuary powers of government,” and “of or constituting a form of government in which power is distributed between a central authority and a number of constituent territorial units”
The Constitution itself provides the basis for state nullification of federal law, especially those laws that clearly violate the Constitution. Article IV, Section 4 of the Constitution has already been invoked to repel intrusive federal laws. In addition many states have enacted Tenth Amendment Resolutions and legislation; this provides the people of each of the sovereign states an enormous opportunity to reject intrusive and unconstitutional actions of the federal government.
The Civil War
The discussion of ‘nullification’ in American history textbooks is largely confined to the actions of South Carolina to reject the tariffs of 1828 and 1832, and the southern states seceding from the Union. Little attention is paid to the economic and political factors that directly contributed to the conflict, including the passage of laws which protected northern businesses at the expense of southern businesses.
The tariffs were constitutionally valid under the condition that they were to be uniform throughout the United States. The effect of the tariffs was not uniform, however, and this is what South Carolina objected to, threatening to secede if nothing was done. The objection to the tariffs based on effect, however, is not a constitutional position.
While the Constitution is silent on secession, at any time, three-quarters of the states could meet to amend the Constitution to allow specifically for secession or dissolving of the Union. Abraham Lincoln, in his inaugural address, incorrectly asserted that
‘the national constitution will endure forever–it being impossible to destroy it except by some action not provided for in the instrument itself…
The ‘instrument itself’ is the Constitution, specifically Article V. Did the actions of the seceding states, outside of Article V, justify the north enforcing the union? Why did Lincoln have to add the cause of slavery to get people to fund and fight the war?
The significance of the Civil War history lies in its treatment of ‘states rights’ and nullification. Needless to say, we have not been told the whole story of this tragic episode in our history. As to any charge that ‘states rights’ or ‘nullification’ leads to the Civil War needs to be met head on with the truth.
‘Nullification’ scares people because they don’t know the history of our country. When you use the term, and speak with people, help them learn.
The Road to Liberty
State based action is as important, if not more critical, than national action at this time. Tenth Amendment actions are a critical part of the plan. The wall that must be broken down is that of the fear of nullification and the derision of ‘states rights’. States rights do exist, they are your rights as a sovereign member of a free and independent state.
Make it so!