Nullification: What is it good for? Absolutely everything !

For Love of God and Country COMMON CORE: "Common Core" or "Rotten to the Core" - You Decide 2013-May-13 Self-Governing Individuals Are Necessary for a Self-Governing Society 2013-Apr-15 Part II--Self-Governing Individuals Are Necessary for a Self-Governing Society 2013-Apr-15 The constitutionality of federal gun control laws and the question as to whether local resolutions are appropriate 2013-Mar-08 Part II--The constitutionality of federal gun control laws and the question as to whether local resolutions are appropriate 2013-Mar-08 Unite for Freedom! (or Conservatives Unite!) 2013-Feb-02 More...

1. Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United states, and of amendments thereto, they constituted a general government for specific purposes - delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers 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."

"Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism - since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY: That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST."

Likewise, the resolutions that James Madison would become the Virginia Resolves of 1798. In part, it read:

"Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers)...

The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness...

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are 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...

That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy....."

*** The "certain general phrases" that Madison was referring to are the elastic clauses of the Constitution - the "Necessary & Proper" clause and the "General Welfare" clause. I don't believe they attempted to enlarge the "Commerce" clause at that time.

The principle of Nullification is a States' Rights Remedy (termed the "Rightful Remedy") inherent in the states' reserved powers under the Tenth Amendment and founded in the Compact Theory of Federalism to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution. The principle also underlies the message of Article VI, section 2 (The Supremacy Clause), which states that the Constitution and all laws made in furtherance of, .... are to be considered the supreme law of the land. This principle affirms that the states, the parties to the compact which created and gave breath to the federal government with specificity, have the right - even the duty - to declare when federal laws and other official acts exceed the powers delegated to the federal government in the Constitution.

In summary, the principle of "nullification" is based on the convergence of pre-Republic and constitutional duties and the text of the Constitution which is consistent with pre-constitutional concepts related to a state's organic documents in general. A clear understanding of the requirements and basis of these duties and legal principles is necessary for a usable and defendable position in support of "nullification."

The Basis of Nullification: Federalism and Compact Theory Often we refer to our government as a "federal' government without really understanding what it means. To state that our government is a "national" government, on the other hand, would imply something completely different. A "federal" government implies that we are a federation of sovereign states which has granted or transferred some its authority to a government to serve, maintain, and support the union. A federal government implies a limited government that respects the sovereign powers of the states. It implies a government that "serves" the individual states. Indeed, we have a federal republic where the individual states come together and have joint deliberations in government, but those deliberation do not impair the sovereignty of each member.

We did not create a nationalistic entity - that is, a "national" government - which would imply that the sovereign powers of the states have been sacrificed to an all-powerful government. "Nationalism" was not on our Founders' minds, and for good reason. The delegates at the Constitutional Convention in 1787 nearly unanimously rejected that notion in favor of federalism. Nationalism is the unhealthy love of one's government, accompanied by the aggressive desire to build that governmental system to a point that it is above all else, and becomes the ultimate provider for the public good. Nationalism puts the nation before the Individual. We call our founding settlers and Founding Fathers "patriots" and not "nationalists." Patriotism is love of country, Nationalism is love of government.

"Federalism" is widely regarded as one of America's most valuable contributions to political science. It is the constitutional division of powers between the national and state governments - one which provides the most powerful of all checks and balances on the government of the people. It is the foundation upon which our individual rights remain most firmly secured.

James Madison, "the Father of the Constitution," explained the constitutional division of powers this way in Federalist Papers No. 45: "The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce..The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not "subordinate" to the national government, but rather the two are "coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government."

The principle of Federalism was incorporated into the Constitution through the Tenth Amendment, which 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." It is similar to an earlier provision of the Articles of Confederation which asserted: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

Our Founders had very good reason to draft the provisions in such terms and the states had very good reason to ratify the Tenth amendment on December 15, 1791. The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was one that was very important at the time our Founding Fathers were trying to fashion an institution to serve the united purposes of the states. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies. They weren't willing to trade one tyrant government for another.

As history clearly records, adoption of the Constitution of 1787 was opposed by a number of our most important and well-known patriots - including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They passionately argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. These opponents would be termed the "Anti-Federalists," which is actually a misnomer of a name because they were the strongest supporters of the states' sovereign powers. [The Federalists were the group who won the day at the Constitutional Convention in Philadelphia in 1787]. It was because of the strength of their arguments, their persistence, their intellectual influence through many writings in widespread publications, and the very track record of history that led to the addition of the Tenth Amendment to the US Constitution.

As the Supreme Court acknowledged in 1931 in the case of United States v. Sprague: "The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified."

It is exceedingly clear that the Tenth Amendment was written and adopted to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.

Besides the principle of Federalism, another foundation upon which the doctrine of Nullification is based is the "Compact Theory of Federalism." This theory was explained and emphasized by Thomas Jefferson in the series of resolutions he wrote which would become the Kentucky Resolves of 1798. The compact theory states that our federal government was formed through an agreement by all of the states. That agreement (compact), our US Constitution, was ratified by all the original states and adopted by every additional state that entered the Union. The Constitution, as an agreement, and like all other agreements (or contracts), set out specific conditions, responsibilities, and limitations on the part of the parties. The parties to the compact were the states themselves and not the federal government. The federal government was merely a creation of the Constitution. Also, as with all contracts and agreements, the federal compact is limited by its language and by the intent when it was entered into. It is only legally enforceable under such conditions. In other words, the government is only legal for the specific purpose it was ratified for and under the precise terms (except for amendments properly adopted through the Article V amendment process). In other words, the Constitution is a contact between the individual states which they can break. And this was precisely what Thomas Jefferson referred to in his Declaration of Independence when he wrote the words:

"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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

To look at the frame of mind of the states when they adopted the Constitution, look at their comments in the ratifying conventions and look at the terms they used. The terms included "compact" and "agent" (meaning the federal government was intended to be an agent of the states). This is the best indicator of the foundations of our system of government. It is not for us to redefine those foundations. And it is certainly not for the federal government to do so. Again, it wasn't even a party to the compact; it was the creation.

South Carolina's Declaration of Causes of Secession ("Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union") adopted on December 24, 1860, provides a nice summary of the establishment of our country:

(With respect to the Declaration of Independence of 1776)... "Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.

In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States.

The parties to whom this Constitution was submitted were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were-- separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that 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. On May 23, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences."

South Carolina's Declaration of Causes goes on to emphasize that stipulations in the Constitution were so material to the compact that without them, the compact itself would never have been made.

Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and interpretation of the Constitution. But why should the Court, or any federal court for that matter, be such a final arbiter? They are, after all, a branch of the federal government. How can such courts truly be expected to be a fair umpire for the States, especially when it was the States themselves, the parties to the compact (contract), which understood and meaning and intent of the Constitution and the purpose for the federal government. The foundational point upon which nullification rests is that the federal government cannot and must not be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to evaluate the extent of its own powers, it will continue to grow, regardless of elections, the separation of powers, and all the other limits and checks and balances built into our system of government. This is precisely what Thomas Jefferson and James Madison warned about when they crafted the Kentucky Resolves of 1798 and Virginia Resolves of 1798.

Sure, the Supreme Court has been historically seen as the ultimate and "infallible" judge of the constitutionality of the laws and actions of the federal government. But we can't forget that the Supreme Court is itself a branch of the federal government. In a dispute between the states and the federal government, is it reasonable to assume that the federal government can always come up with an unbiased resolution? (We've seen how resolutions have turned out over the years, as the states have been systematically stripped of their powers, rights, and obligations). Jefferson believed that under this arrangement, where the Supreme Court is the ultimate and "infallible" judge of the meaning of the constitution and the constitutionality of federal actions, the states would inevitably be eclipsed by the interests and ambitions of the federal government. As Judge Spencer Roane of Virginia (1762-1822) wrote: "It has, however, been supposed by some that the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States (government) on the other, in all questions touching on the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid for by the other party...

Virginia Nullifies the "Indefinite Detention of American Citizens" Provision of the National Defense Authorization Act (NDAA)

"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." -- the Preamble to the Bill of Rights

It is a good thing the doctrines of nullification and interposition are being revived. Perhaps it's the urgency of the constitutional crisis we face that has made the doctrines so appealing and sensible. One notable example of its recent application is with the "indefinite detention" provision of the National Defense Authorization Act (NDAA), which declares the United States to be a battlefield and allows the President to apply the rules of war to American citizens, which includes the right to indefinitely detain, ship to detention centers overseas, interrogate, torture, subject to military tribunal, or kill. The NDAA was passed to extend the authority to fight terror that was granted under the 2001 AUMF (Authorization for Use of Military Force), except that while the AUMF was intended to apply only to those associated specifically with the events of 9/11, the NDAA creates a second classification of targets that the president can apply military law to - American citizens. [Section 1021(b)(2) defines this new target as: "A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."] It is this new classification that is at the core of the controversy and the heart of the opposition. It is perhaps significant that the government, ever since the Civil War, has been looking for power to target citizens for anti-government conduct in excess of what the Constitution has already granted.

"Until the war on terrorism, this claimed power of the president to operate outside the Bill of Rights was asserted on only two other occasions in our history: The Civil War and World War II. In the Civil War, the southern states that broke away formed their own nation with a constitution, a legislature, a president, an army, and a navy. They printed their own money, sent and received ambassadors, etc. The North and South exchanged prisoners, followed the laws of war in the treatment of POWs, negotiated cease-fires and conducted a formal surrender at the end. Only in this anomalous situation of a civil war, where a part of the U.S. had broken off, were U.S. citizens from the South treated as foreign enemies for purposes of military jurisdiction. There was no way to avoid that, as all of the southerners were U.S. citizens till they broke away.

However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy. During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals that answered only to him, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war. In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them. Others were accused of harboring rebels or engaging in guerilla warfare."

As most students of history know, the Supreme Court addressed Lincoln's suspension of habeas corpus after the end of the war, in the landmark case of Ex parte Milligan (1866). Milligan was accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade. He was detained and tried by a military tribunal, found guilty, and sentenced to death. Luckily, the war ended before his execution and so the Supreme Court heard his challenge to the government's denial of his rights of habeas corpus (which is what the term "ex parte" means). At issue was the treatment of Northern civilians as the "enemy" and therefore subjecting them to "justice" under military tribunals. The Court found this unconstitutional.

"The Milligan Court rejected the argument that a U.S. citizen could ever be an "enemy." The Court affirmed the use of military jurisdiction over two categories of persons: those in the U.S. military (and in the militia when called into service) and the enemy. In the peculiar circumstance of the Civil War, the Court had no problem at all with using military jurisdiction for detention and trial of the soldiers and even civilians of the breakaway South who had effectively renounced their U.S. citizenship. However, the Court pointed out that Mr. Milligan was not in the military (the Union Army) and was not a resident of one of the rebellious states. This is really the same as saying he was not a citizen or resident of a foreign nation with which we were at war. It did not matter to the Milligan Court what Milligan had done, or what laws of war he might have violated. What counted was who he was. If he was a northern civilian, he could not be tried by tribunal for any actions nor held as a POW or "unlawful combatant" because he just was not in one of the two categories of people subject to the military. He was a northern citizen who was making war on his nation and aiding the enemy. The proper remedy for such is a trial for treason, or at least for violation of a statute, before a jury in an Article III court, not a military trial.

What the Milligan Court upheld is the Constitution's separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England's many upheavals and coups and endeavored to prevent their recurrence." [Stewart Rhodes, "Enemy Combatant Status"]

"...... These provisions [Bill of Rights], after a lapse of more than seventy years, are (now) sought to be avoided. Those great and good men who wrote the Constitution foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

"There is one example of this violation in Virginia, of a most striking and shocking nature — an example so horrid, that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house, that a certain man (Josiah Philips) had committed several crimes, and was running at large, perpetrating other crimes. He therefore moved for leave to attain him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression on my heart, and I cannot contemplate it without horror. There are still a multiplicity of complaints of the debility of the laws. Justice, in many instances, is so unattainable that commerce may, in fact, be said to be stopped entirely. There is no peace, sir, in this land. Let us judge from the fate of more ancient nations: licentiousness (immorality) has produced tyranny among many of them: it has contributed as much (if not more) as any other cause whatsoever to the loss of their liberties. I have respect for the integrity of our legislatures; I believe them to be virtuous; but as long as the defects of the Constitution exist, so long will laws be imperfect."