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What we really need to know about nullification can be found in two places.  Many naysayers, who think they know, simply don’t know about nullification.  I am a proponent of state nullification of federal laws, rules, regulation, and executive orders when these exceed the federal government empowerment found in our Constitution.  You may think that I am a crack pot.  However, I have two allies in the nullification fight – Messrs Jefferson and Madison, the two chaps who are the principal architects of the Declaration of Independence and the Constitution of the United States.

Both these men have written on nullification and proposed it as far back as 1798.  Nullification was proposed for the Kentucky and Virginia state governments, and passed by both to refuse to honor two federal laws – the Alien and Sedition Acts at the time.

The first appearance of the right to nullify occurred in 1798, and the two collaborators in the Resolution of ’98 were Thomas Jefferson and James Madison. This duo should bring gravitas to the argument. Madison wrote of the right to nullify in the Virginia Resolution of 1798, wherein his document was adopted by the Virginia General Assembly and agreed to by the Virginia Senate in that same year. These were a nullification of the Alien and Sedition Acts passed by Congress and signed into law by President John Adams.

Jefferson also very eloquently and clearly wrote of the right of a state to nullify in the Kentucky Resolution of 1798, where-in he cited Article I, Section 8’s enumerated powers and the tenth amendment. This collaboration, but mostly Jefferson resolution was adopted by the Kentucky legislature in the same year.

Nullification means that any state legislature can declare an act, regulation, or a law of the federal government not supported by the powers afforded the federal government, to be unconstitutional and nullified under the powers granted the states in the tenth amendment – “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.”

This has been tried, but is not directly found in the Constitution. Nullification, that is not “constitutionalized” would be a sticky event. There is precedent provided by and arguments for nullification from the two rather influential and important founders mentioned above.  These two men were the quintessential constitutional scholars.

Nullification is a solution! These two very key founders were in favor of nullification. James Madison was a principal architect of the Constitution and the father of the Bill of Rights. He knew and understood better than any human on the planet, the intended relationship between a state, the states, and the federal government? Yes, Madison did late in life indicate that he did not intend for nullification, but his reasoning and words of the Resolution of ‘98 and Jefferson’s nullification argument can be used to prove that something nullification-like does fall to the states.

Nullification was also authored during the War of 1812 and with the Embargo of 1807 through 1809. Oddly enough, Jefferson was President for the Embargo; the federal government enacted an embargo of shipping, prohibiting all American ships from leaving American ports bound for any foreign port. This was to combat acts from Britain and France against America’s neutral rights on the seas. These are not the only examples of nullification in the history between the states and the federal government.

The following is taken from the website constitution.org and is the reprint of the text of resolution.  The website also states “The following resolution was adopted by the Virginia Senate on December 24, 1798, as a protest against the Alien and Sedition Acts passed by Congress. It was authored by James Madison, in collaboration with Thomas Jefferson, who authored a set of resolutions for Kentucky.”

THE VIRGINIA NULLIFICATION RESOLUTION

RESOLUTIONS AS ADOPTED BY BOTH HOUSES OF ASSEMBLY.

1. Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that it will support the government of the United States in all measures warranted by the former.

2. That this 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.

3. 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 are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the 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.

4. That the General Assembly doth also express its deep regret that a spirit has in sundry instances 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.

5. That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress, the first of which exercises a power nowhere delegated to the Federal Government; and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal Constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been juslly (justly) deemed the only effectual guardian of every other right.

6. That this State having by its convention which ratified the federal Constitution, expressly declared, “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other States recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.

7. That the good people of this commonwealth having ever felt, and continuing to feel the most sincere affection to their brethren of the other States, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measure will be taken by each, for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.

8. That the Governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other States, with a request that the same may be communicated to the legislature thereof. And that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.

The Kentucky Resolution as provided by pinzler.com

The representatives of the good people of this commonwealth [of Kentucky], in General Assembly convened, have maturely considered the answers of sundry states in the Union, to [the ongoing debate and discussion of]… certain unconstitutional laws of Congress, commonly called the Alien and Sedition Laws, would be faithless, indeed, to themselves and to those they represent, were they silently to acquiesce in the principles and doctrines attempted to be maintained…. Our opinions of these alarming measures of the general government, together with our reasons for those opinions, were detailed with decency, and with temper and submitted to the discussion and judgment of our fellow-citizens throughout the Union…. Faithful to the true principles of the federal Union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation. Lest, however, the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced… therefore,

Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in… [the Constitution], 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… 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 that compact [the Constitution], by a total disregard to the special delegations of power therein contained, an annihilation of the state governments… will be the inevitable consequence: [That the construction of the Constitution argued for by many] state legislatures, that the general government is the exclusive judge of the extant of the powers delegated to it, stop not 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 [the Constitution] being sovereign and independent, have the unquestionable right to judge of the infraction; and, That a nullification of those sovereignties (sovereigntys), of all unauthorized acts done under the 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 said Constitution…. 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, or ever hereafter, cease to oppose in a constitutional manner, every attempt at what quarter soever offered, to violate that compact…. This commonwealth does now enter against [the Alien and Sedition Acts] in solemn PROTEST.

So when you think about whether a state can nullify a federal law regulation, rule, or executive order, just consider that two men with more knowledge of the Constitution than the consummate knowledge of all the supreme Court justices since the first court combined, thought it was the right of every state to do so.  Challenge the premise and you are challenging two of the founders who brought us the Declaration of Independence and the U.S. Constitution with the Bill of Rights.  Remember, Madison wrote the constitution document and understood what was intended.

 

 

 

 

 

 

 

 

 

 

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In 1803, Chief Justice of the Supreme Court John Marshall wrote a majority, five to nothing, decision in the case of Marbury v. Madison.  The nature of the case was not as important as Chief Justice Marshall’s previous position as Secretary of State under President John Adams.  Both were Federalists.  After losing the election of 1800 to Thomas Jefferson, Adams nominated Marshall to the Supreme Court as Chief Justice on January 20, 1801 – two months before his term expired; subsequently he received the consent of the Federalist controlled Senate and was sworn in.

After being sworn in as President, Jefferson appointed James Madison (Marbury v. Madison) as Secretary of State.  Again, the case itself is of little importance except that it allowed Marshall to include in the majority opinion, “Judicial Review”.  This was the opinion that even though the Constitution did not provide specifically for the Supreme Court to declare an act of Congress or actions of the Executive Branch unconstitutional, that if a law or action was contrary to or not empowered by the Constitution, it could be declared unconstitutional.  Neither the Executive Branch nor the Congress did anything about this power grab, which effectively made the judiciary superior to the other branches, because it now had the last word.  What exacerbated this decision was that it extended to the States.  Acts of state legislatures could also be struck down as being unconstitutional, making the Supreme Court and inferior courts, a branch of the federal government, superior to the States, individually or as a union.  Some would say that this was not a power grab, but it did elevate the Supreme Court as superior to the other two branches and the states under the theory of checks and balances.

If we accommodate a Supreme Court of five jurists at that time, and now nine jurists from 1869, making decisions of constitutionality, at least we have a panel of jurists with varying opinions voting.  What is unconscionable is that judges of inferior courts, individuals, now routinely declare acts of entire legislatures and constitutional referendums, whether it be from the States or Congress and even of the citizens of States, as unconstitutional – one person can do this?

Just recently a federal judge declared that the military must eliminate its “Don’t Ask Don’t Tell” policy and thus was attempting to force the military to change to an openly gay policy.  Whether you like the policy or not, should one unelected jurist be allowed to possibly have a detrimental effect or any effect at all, on our armed forces and our national defense structure?  Should one jurist decide how our military is structured?

This decision was appealed – reversed – and stayed, but ultimately “Don’t Ask Don’t tell” is now a law of the past.  One must ask why this case was in an inferior court, since the Constitution stipulates that the Supreme Court is the court of original jurisdiction in cases involving the Federal Government and States, among other cases.

Back to John Marshall’s opinion: the real root importance of the Marbury v. Madison case was an attempt by Marshall, a staunch Federalist, to stick it to Thomas Jefferson, his political enemy.  Yet, now we have given progressively trained, individual jurists supreme power over the States, Congress, and the Executive Branch – this incredulous situation was never intended by the founders.  The separation of powers among the three branches of the federal government and the equality of the branches started to unravel as early as 1803.

This decision, “Judicial Review”, made the Supreme Court unequal and superior to the other branches.  No longer did a check on the authority or decisions of the Court exist.  Congress and the Executive Branch were now junior partners.  The Court was now able to remake our Constitution, write law, and at times enforce the law.  The tearing apart of our Constitution had begun.  For more on this go to FindLaw to learn about the history of judicial review.  For more on the history of Marbury v. Madison go to “John Marshall’s Judicial Mind”.

This is an excerpted chapter from U.S. Constitution: “Sine Die” a sixteen chapter book-blog on how the constitution has been marginalized, abused, or just ignored to build an all powerful federal “central” government.

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