Nullification:
It’s Official
by
Derek Sheriff
This is reprinted from the Tenth Amendment Center.
While
speaking to a large crowd of over a thousand people on the campus of
Arizona State University last December, Congressman Ron Paul
mentioned one thing that might come about as the result of the federal
government habitually ignoring the Constitution: Nullification.
About
five minutes into the video segment which you'll find below, he said,
"There's not much attention paid to the Constitution in Washington.
There's not much attention paid to it by our executive branch of
government. And we don't get much protection from our courts. So one
thing that might finally happen from this if the people finally feel so
frustrated that they can't get the results out of Washington – they're
going to start thinking about options. They might start thinking about
nullification and a few things like that."
As someone who attended that rally and was doing my best to represent my state's chapter of The Tenth Amendment Center, I know I cheered very
loudly and was very pleased when the rest of the crowd applauded
enthusiastically.
For
anyone who is unfamiliar with the concept of state nullification, it
was the idea expressed by then sitting vice president, Thomas
Jefferson, when he authored what came to be called the Kentucky Resolutions of 1798.
The resolutions made the case that the federal government is a creature
of the states and that states have the authority to judge the
constitutionality of the federal government's laws and decrees. He also
argued that states should refuse to enforce laws which they deemed
unconstitutional.
James Madison wrote a similar resolution for Virginia
that same year, in which he asserted that whenever the federal
government exceeds its constitutional limits and begins to oppress the
citizens of a state, that state's legislature is duty bound to
interpose its power to prevent the federal government from victimizing
its people. Very similar to Jefferson's concept of nullification,
Madison's doctrine of interposition differed in some small but
important ways.
These two documents together came to be known as
The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were
written in response to the dreaded Alien and Sedition Acts, and the
phrase, "Principles of ’98"
became shorthand for nullification and/or interposition. Over time,
"The Principles of ’98" would be invoked by many other states, many
times for a variety of issues.
Getting
back to Ron Paul's speech in December at ASU, Congressman Paul
qualified his prediction about the revival of nullification by saying
the following:
"But my suspicion is that there will never be
official nullification or secession, but if the [federal] government
continues to fail, and they can't deliver anything...checks
bounce...that we will be forced to take care of ourselves. And we will
be forced to almost ignore everything they do."
Less than a week after the speech I attended at
ASU, Congressman Paul was interviewed by Mike
Church on his radio show. When Mike asked him what his thoughts
were on nullification, Ron Paul responded by saying:
"I think it’s a great idea. It was never really
successful in our history. But I think it’s going to grow in
importance. And I think it’s going to grow because the government, the
federal government will be seen as inept and ineffective. And I think
it’ll almost be de facto in the sense that the states will eventually
just ignore some of the mandates."
Here I would like to pause for a moment and point
out that I am not usually in the business of disagreeing with
Congressman Ron Paul. I would hardly need one hand to count the number
of times that I have actually disagreed with him on any issue of real
substance. I am a great admirer and supporter of Congressman Paul, who
is undoubtedly very supportive of the idea of state nullification, even
if he has doubted its efficacy in the past. However, in spite of all
this, I would like to make two observations.
First, nullification has, in fact, been somewhat successful in the past and more recently as well. Second, as
President Obama loves to say, "Let me be clear": "Official"
nullification has ALREADY HAPPENED.
Before
I explain why "official" nullification has already happened, let me
briefly give some examples of what nullification is NOT.
Nullification
is not secession or insurrection, but neither is it unconditional or
unlimited submission. Nullification is not something that requires any
decision, statement or action from any branch of the federal
government. Nullification is not the result of obtaining a favorable
court ruling. Nullification is not the petitioning of the federal
government to start doing or to stop doing anything. Nullification
doesn't depend on any federal law being repealed. Nullification does
not require permission from any person or institution outside of one's
own state.
So just what IS "official" nullification you might be asking?
Nullification
begins with a decision made in your state legislature to resist a
federal law deemed to be unconstitutional. It usually involves a bill,
which is passed by both houses and is signed by your governor. In some
cases, it might be approved by the voters of your state directly, in a
referendum. It may change your state's statutory law or it might even
amend your state constitution. It is a refusal on the part of
your state government to cooperate with, or enforce any federal law it
deems to be unconstitutional.
Nullification carries with
it the force of state law. It cannot be legally repealed by Congress
without amending the US Constitution. It cannot be lawfully abolished
by an executive order. It cannot be overruled by the Supreme Court. It
is the people of a state asserting their constitutional rights by
acting as a political society in their highest sovereign capacity. It
is the moderate, middle way that wisely avoids harsh remedies like
secession on the one hand and slavish, unlimited submission on the
other. It is the constitutional remedy for unconstitutional federal
laws.
With the exception of a Constitutional amendment,
the federal government cannot oppose (except perhaps rhetorically) , a
state's decision to nullify an unconstitutional federal law without
resorting to extra-legal measures. But such measures would more
than likely backfire, since most Americans still affirm that might does
not make right.
There is no question as to whether or when "official" nullification
will happen: It
has ALREADY HAPPENED. In fact, not only has it happened recently, it
has been a success! Perhaps this is why the federal government hopes
you will never hear about it. According to the Tenth Amendment Center:
"25 states over the past 2 years have passed
resolutions and binding laws denouncing and refusing to implement the
Bush-era law [REAL ID Act]. While the law is still on the books in
D.C., its implementation has been “delayed” numerous times in response
to this massive state resistance, and in practice, is virtually null
and void."
But that's not all; another example of "official"
nullification has occurred in the form of an unlikely states' rights ally:
Medical marijuana.
There
was a time when the federal government took the Constitution seriously
enough that Congress did what is required in order to enact a
nationwide ban on a substance. Even though the experiment would
eventually be seen by most Americans as a mistake and a failure, the
18th Amendment was passed and the era known as "Prohibition" began.
Four years later, it was repealed.
When it came to marijuana
prohibition, however, the feds had another trick up their sleeve. All
three branches of the federal government would agree on a very novel,
liberal interpretation of the "commerce clause" which would allow them
to regulate virtually any substance, including marijuana, even though
there’s supposedly no “legal” commerce in the plant. Since that time,
the federal government has managed to claim, with a straight face, as
it were, that a plant grown in your back yard, never sold, and never
leaving your property, is somehow able to be completely banned by the
federal government under the interstate "commerce clause." The only
problem with their claim is that the states just aren't buying it.
Fourteen
states have actively refused to comply with federal laws on marijuana,
and it looks as if six more are about to join the effort. In a recent blog post, Mark Kreslins observes:
"...medical marijuana now poses a real threat to
the enforcement power of the Federal Government. With state after state
defying Washington DC over this issue.... Washington DC has a choice to
make; enforce their laws based on a very liberal interpretation of the
Commerce Clause by sending thousands of DEA agents into all fifty
states…or…look the other way. Thus far, they’ve chosen to look the
other way for if they create the appearance of a Federal takeover of
police powers in the States, they will fully expose their
extra-constitutiona l behavior and provoke a direct confrontation with
the States who will use the 10th Amendment (hopefully) to defend their
prerogatives."
Whatever your view may be regarding marijuana use,
medical or otherwise, one thing is apparent: "Official" nullification
has happened, and it works! Washington will have to get used to it.
What
remains to be seen, however, is whether in addition to "officially"
nullifying unconstitutional federal laws, state governments will be
willing to use their power to "officially" interpose themselves between
agents of the federal government and the people of their state. In the
unlikely event that one or more branches of the federal government
decides to take extra-legal measures to punish residents of a state for
exercising their constitutional rights in defiance of unconstitutional
federal laws, will that state's government have the courage to hamper
or even neutralize such extra-legal measures?
There are a
whole host of peaceful actions that a state government can adopt if
that day comes or appears to be just over the horizon. These measures
range from county sheriffs requiring that federal
agents receive written permission from the sheriff before acting in
their county, to setting up a Federal Tax escrow account, which
could potentially
de-fund unconstitutional federal activities by requiring that all
federal taxes come first to the state’s Department of Revenue.
Besides
state interposition, the other thing Washington would have to consider,
is whether enough of their agents would actually obey orders to punish
people for exercising their constitutional rights. There is a
significant chance that enough of them would either publicly or
privately decide in advance to ignore such orders. As the
probability of this increases, it becomes more likely that Washington
will not risk overplaying its hand. The
reality is that Washington just doesn't have the manpower to enforce
all their unconstitutional laws if enough states choose to defy them.
Of
course, it all depends on the people of the several states: ordinary
people like you and I. Although I've discovered that there are more
elected representatives at the state level who are committed to acting in a courageous and principled
manner
than I ever dared hope, most of their peers lack such a brave
commitment. Most of them will stick their head in the sand or sit on
the fence until they determine which way the wind is blowing. And so
it's our opinion, not the opinion of the American people in aggregate,
but our opinion as citizens of our respective states, that will
influence the decision of our state representatives to either stand
tall or to kneel down and knuckle under.
But do you even know
the men and women who represent you? I'm not talking about those who
represent you in Washington, but rather in Phoenix, Salem, Sacramento,
Salt Lake City, Denver, Austin, Oklahoma City, Tallahassee, Atlanta,
Nashville, Richmond, Harrisburg, Indianapolis, Columbus and
Springfield.
If you don't know them, and you care about our
republic, you should make it your highest priority to get to know them
and establish rapport with them as soon as possible.
For any of
you who really want to preserve our union, and at the same time retain
your rights guaranteed by the Bill of Rights, I can't say it any better
than 2008 presidential nominee of the Constitution Party, Chuck Baldwin:
"...it is absolutely obligatory that
freedom-minded Americans refocus their attention to electing State
legislators, governors, judges and sheriffs who will fearlessly defend
their God-given liberties... as plainly and emphatically as I know how
to say it, I am telling you: ONLY THE STATES CAN DEFEND OUR LIBERTY
NOW! ...this reality means we will have to completely readjust our
thinking and priorities."
