Nullification NOT the Answer for Health Care (or anything else)

Shelli Dawdy picture at rally, March 21, 2010

Like many Americans, I was outraged on Sunday, March 21, 2010

This is the first installment in a series about nullification – see the bottom of this article for a complete list.

On March 21, 2010 – I stood on an improvised stage (the back of a pickup truck) located between the State Capitol and the Governor’s mansion at GiN’s flash rally “Kill or Nullify the Bill!”. Throughout the preceding two week period, it had become clear that the health care bill was going to be passed by Congress and Sunday, March 21, was the day on which the vote would occur.

The rally was my response to the emails and phone calls imploring me to organize a bus for Nebraskans who wanted to join protesters in Washington, D.C. Since I had been of the firm opinion for some time that “the fix was in” when it came to the passage of health care and that D.C. politicians had become particularly impervious to public pressure, I didn’t think it was a good use of time or resources to organize such a bus. I responded by calling people to gather closer to home – in the seat of State government.

At the rally, I made a case for focusing on Nebraska’s state officials; I held up a paper copy of the 800+ page version of the bill 1, listed some of the many sleazy maneuvers by which our country had arrived at that very moment and reviewed how Nebraska’s very own Senator Ben Nelson and his Cornhusker Kickback were critical to the health care bill’s passage. I implored everyone present to turn their attention within our state and to let their state legislators and Governor know we expected action.

I called for support of a health care nullification resolution (LR289CA), languishing in committee in our Unicameral. (If you’re not familiar with the term nullification see the footnotes 2.

I’ve realized since, my calls for supporting nullification were a mistake.

I’ve learned that my instincts were correct, it was time to further scrutinize what the elected officials in my state were doing, but not for some of the reasons I believed last year. At that time I believed what I’d heard; the majority of Nebraska’s elected officials did not want the health care law enacted and they were going to do what it took to stop it.

A lot of evidence convinces me that I was giving too much credit to my state officials, in some ways placing too much blame on the politicians in D.C., and most importantly, I did not have a full understanding of the original meaning of the Constitution.

For a long time, my primary goals have been to search for what is true and what is right. Sometimes, despite my best intentions and diligence, I make mistakes. I have to accept the truth when I find it, whether I like it or not, and pursue what is right – whether it is easy or not.

It’s important to note at this point, that the person I work closest with – Linda – was never comfortable with nullification, but she originally supported advocating for the nullification measure referenced above to be moved out of committee because it would at least be a sign from some of our State Senators that they were opposed to the health care law and that they were interested in working against its implementation. We recognized it would have been nearly impossible to successfully get the measured passed, based on a number of factors. In other words, Linda’s support for the measure was for the purposes of moving a ball forward in a debate.

Linda and I have spent nearly a year since that rally continuing to observe the workings of Nebraska’s government, studying the health care law, and conducting a lot of additional research that is ultimately related.

The information Linda and I have pulled together, discussed, and it’s important to note, debated, has convinced us that supporting nullification is not the answer because…

  • History has proven it ineffective
  • A belief in a number of erroneous concepts is required
  • Pursuing this avenue prohibits focus on truly effective actions
  • It is neither morally right nor constitutional

Recognizing that there are many people, a growing number, in fact, who have settled on nullification as the solution to out-of-control-government, I am prepared to defend my change of heart and to engage in civilized debate. (That process has already begun, at least through my email; a message I sent to a gentleman in the state of Idaho on the subject and copied to others who I thought might be interested, has set off a debate.)

For many people who truly wish to see a restoration of the limited, republican government found in the Constitution, according to its original meaning, it is the debate of our time.

Efforts currently invested in informing other citizens about nullification and lobbying and/or assisting elected officials to pass legislation could be re-focused – - with much more effective results.

It’s very important to note that being against nullification does not mean one is for the current size of federal government or the actual encroachments on state sovereignty or that one is against other steps that can be taken by States and citizens to fight unconstitutional laws or regulations.

To be continued in Part 2: History Has Proven Nullification a Failure – Just Look at REAL ID”.

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1. This article

2. History Has Proven Nullification a Failure – Just Look at REAL ID”

3. Nullification Measures Not Stopping Health Care Implementation (Think Idaho)

4. Nullification: Are State Level Officials Really Opposed to Federal Encroachment?

5. Nullification: Are States Sitting Ducks or Willing Accomplices?

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Notes:

  1. Ironically, the paper version of the bill I had in my possession was given to me by the District Manager for Senator Ben Nelson, back in October 2009. By the time we reached March 21, the final version of the bill had reached 2,409 pages in length.
  2. Webster’s dictionary definition can be found HERE. Wikipedia’s article on nullification appears balanced, although advocates for nullification may find that statement arguable. For another perspective, see the Tenth Amendment Center’s Nullification page. Interposition is another term used to refer to States either refusing to implement a federal law or regulation or passing legislation declaring a law null and void within a state.

Comments

  1. Hank Williams says

    I am sorry to see your recent attack on Nullification. Your article is wrong when it says that Nullification is unconstitutional. The 10th amendment says that states control matters not enumerated throughout. The document is silent on Nullification and therefore it is a states right to nullify.

    When it comes to matters of the constitution no one is more knowledgeable than Madison (Father of the constitution) He also wrote the Virginia Resolution (Nullification)

    Jefferson wrote the Kentucky resolutions (Nullification)

    You also question the morality of Nullification) Nothing can be more moral than a State defending it’s citizens against violation from the federal government. Unconstitutional law is an oxymoron. If a “law” is unconstitutional it is no law at all and the only moral thing a state can do is nullify it.

    Nullification worked in the fugitive slave acts….look it up

    The only way one can argue that nullification is unconstitutional is through judicial review…but the constitution does not say what John Marshall, precedent, or constitutional law says it says…it says exactly what it means to say.
    Nullification is the rightful remedy and just because some spineless state legislatures failed to uphold there moral duty is no evidence to the contrary. It simply means we must pay closer attention to local politics, elect representatives who have the guts to represent us, and then hold them accountable.

    http://confederateunderground.blogspot.com/

  2. Mike Maharrey says

    To say nullification has proven ineffective in the past is erroneous. One only need to look to the 15 states currently defying federal medicinal marijuana laws, along with the 19 states seeking to join them this year, to see that states can successfully void federal laws. Despite “laws” on the books and a Supreme Court decision upholding them, states medicinal marijuana users continue to use the drug to treat their conditions unmolested in states choosing to ignore federal edict.

    But perhaps the greatest success lies in the states’ resistance to the Real ID Act. Six years later, the law still has not been implemented, simply because states refuse to implement it. You can read more here: http://www.tenthamendmentcenter.com/2011/03/20/nullification-3-real-id-0/

    Even when nullification doesn’t succeed directly, the message sent to the federal government can often lead to a repeal of the unconstitutional act. This was the case in the most famous nullification battle over the tariffs in the mid-1800s.

    This was in fact what James Madison envisioned.

    “Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” – James Madison, Federalist 46

  3. says

    In Defense of “Nullification”:
    A Response to Mr. Stubborn

    By Richard D. Fry, Esq.

    Executive Summary

    Although the avowed purpose of the “Nullification NOT…” article is to repudiate nullification as “immoral”, “unconstitutional” and “ineffective” I walked away from reading it even more convinced of the validity and power of nullification and better equipped to manage it. I wonder if the criticism offered by Stubborn is not largely tongue in cheek.

    Although Stubborn’s conclusions are, I believe, incorrect he does provide useful and practical information on nullification.

    The article could be used as training material on how to use nullification including to elucidate some of the pitfalls of nullification and how to avoid them. I recommend it to Tenthers and others interested in getting a better prospective of the theoretical as well as the practical aspects of nullification, which can be gained by going into the author’s (Stubborn) sources.

    The article is largely based on a few personal observations by Stubborn in his state and on certain issues i.e., REAL ID. A prime source for this article was an article by noted constitutional “historian” David Barton, the founder of Wall Builders.

    Mr. Barton’s article is fatally flawed. The article has significant and germane historical inaccuracies, and his analysis lead me to believe he does not have a firm grasp on nullification. He appears not to understand what factors constitute “nullification” and this allowed him to build his case against the effectiveness of “nullification” upon false facts. His lack of understanding of the fundamentals of “nullification” causes him not to be able to distinguish between actual nullification and the unlawful conduct of disregarding valid/ Constitutional laws.

    Stubborn, through his lack of understanding, attributes intervening forces, which reduce “nullification’s” effectiveness, as being part of “nullification” and comes to the same conclusion as Mr. Barton about its lack of effectiveness.
    My analysis of Stubborn’s perspectives and those of Mr. Barton helped me to further hone my conceptualization of nullification and left me wondering how they could have so missed the boat. I do not think the Stubborn article detracts from “nullification” but rather I think it supports it in that it highlights the practical aspects of “nullification” that most citizens and even many “Tenthers” simply have not come to terms with.

    All in all it’s a good read for those versed enough in the fundamentals of “nullification” and American history to not get too far off the path into the brambles.

    What is “Nullification”?

    First, the term “nullification” is a misnomer. It suggests that the states are taking an action to make a federal law null and void. That is not true. A more descriptive and appropriate phrase for what is happening would be “Recognition of Nullity” or “Recognition of un-Constitutionality”.

    Nullification can include a variety actions or even inaction. Nullificaiton proper can be used when the action of the federal government is directed at the states themselves not directly at the citizens. For instance REAL ID which was / is directed at the states, tried to force the states to construct the infrastructure for the federal government’s global identification and citizen tracking apparatus. Many states simply refused to cooperate.

    As Stubborn noted in his posts, many states did not object to Real ID based on its invasion of the citizens’ Constitutional privacy rights but rather on the basis that they, the states, did not want to pay for such. That sets up a whole new dynamic.

    Stubborn does not make this distinction, but it is a significant one. If the state is simply trying to get out of paying for a federal project it is not likely to take the same steps it would if it was trying to protect Constitutional / privacy rights. This is not a problem with “nullification” this is a problem of misdiagnosis or disregard by the states of the real or more significant problem.

    Nullification vs. Interposing

    The term nullification is often used to include “interposing”. By definition they are not the same. Interposing by definition is the placing of something between two objects. In the “nullification” context the State is placing itself (its power and authority) between its citizens and the unauthorized power of the federal government i.e., the state is shielding its citizens from the abusive or tyrannical power of the federal government.

    Montana’s Firearms Freedom Act (FFA) authorizes state law enforcement to arrest any federal agent attempting to enforce federal firearms laws and regulations, including by arresting a citizen for violating federal firearm regulations, regarding an intrastate firearm. Note the federal firearms laws are not directed at the states they are directed at the citizens. It is the citizen who will be fined, arrested and imprisoned for violating the federal laws and regulations, not the state. In such a situation nothing is achieved by the inaction of the state, such as with REAL ID. The state must actively be involved by interposing itself between the federal government and the citizen.

    There can be cases where the state will have the opportunity or need to both nullify and interpose. The Obama Care Act is such a case. Some of its provisions are directed at the states i.e. setting up an insurance exchange, and some at the citizen i.e., requiring citizens to buy insurance or be fined.

    Dangers of Faux Nullification

    There can be serious consequences if the right type of “nullification” is not used or if a law is publicized to the public as a “nullification” bill when in fact it is not. For instance if the citizen thinks that his state’s Firearms Freedom Act has “nullified” the federal firearms laws and he “violates” the federal law the citizen will be out there on his own.

    Kansas’ FFA is a good example of this. It has no interposing language. If a Kansan relies upon the FFA to save him from the federal government he will be sorely disappointed. The same with Kansas’ Heath Care Freedom Resolution. It offers the citizen no protection from the federal government whatsoever.

    Stubborn’s Concerns

    Stubborn has lost confidence in “nullification” for two basic reasons. First he does not believe it is legitimate; “It is neither morally right nor constitutional…” Second, he believes it has been historically ineffective and is now ineffective.

    Constitutionality of Nullification

    All governmental officers; state and federal, legislative, executive and judicial are required to take an oath under Article VI cl.3 of the Constitution “…to support this Constitution…” The President, the chief executive officer, has his/her own oath of office:
    “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.””

    Article II §1.

    Often times I hear the argument (often against nullification) that federal law trumps or controls state law. This is a misstatement. The Constitution’s Supremacy Clause provides:

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    Article VI cl.2.

    The Constitution is unqualified as being supreme within its enumerated powers, but only federal law which is “… made in Pursuance [of the Constitution]” is supreme.
    Not only was this a principle espoused by Jefferson in the Kentucky Resolutions of 1798 but it was held to be so by the Supreme Court about six years later in the famous case of Marbury v Madison. (Cite (1803)) Chief Justice Marshal said in the majority opinion that a law (in this case federal) which is in contravention of the Constitution is “null and void” from its inception i.e. it never comes into full force and effect.

    One cannot violate a law which never comes into force.
    Seventeen years later Chief Justice Marshal noted in the majority opinion that:

    “It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should….. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.”

    Cohens v. Virginia, 19 U.S. 264,404; 6 Wheat. 264 (1821)

    One cannot “support”, “preserve, protect and defend” the Constitution by violating it. To follow an unconstitutional law would be a violation of one’s oath of office.

    Principle of Restraint

    Another thing which must be taken into consideration is the philosophy of restraint as stated in the Declaration of Independence:

    “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. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…”

    It may be inadvisable for a state to attempt to “nullify” every perceived infringement of the Constitution. In some circumstances it may be better overall to challenge the issue in court or to try to “cut a deal” with the feds. This approach would not appeal to a constitutional purist who would say any constitutional infringe is too small to ignore. Some would say it is this biding of time rather than addressing the problem promptly and or “cutting deals” that has gotten us where we are.

    Safety in Numbers

    Another strategy used by both Jefferson and Madison, as demonstrated by the Resolves of 98, is that it is more prudent to get other states on board with an attempt to “nullify” a federal law etc.,:

    ‘8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States: to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union…this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, weather general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States…’

    Kentucky Resolutions of 1798.

    “That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for 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 measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
    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….”

    Virginia Resolutions of 1798.

    Although it might be technically supportable at law for a state to “nullify” a federal law on its own, it is more practical (“safer”) to do so jointly in numbers. This was clearly the plan of Jefferson and Monroe in 1798. Another reason to try to get consensus or agreement from other states is to get a “second opinion” on the state’s concern before the state jumps in all the way.

    The passing of a Tenth Amendment Resolution serves several purposes. First it puts the federal government on notice that a state(s) is not happy with the federal government’s actions. Second, it serves as support for other states that have already undertaken the measure or a rallying cry to other states that have not. Third, it serves as a rallying cry for the citizens of the subject state. Fourth, it allows the citizens to find out where their legislators stand and how responsive they will be to the citizens’ requests in the future. Fifth, it can be used, if passed, as leverage with their legislators i.e., “you talked the talk (with the TAR) now it’s time to walk the walk with a Firearms Freedom Act.”

    During the effort to pass a Tenth Amendment Resolution (TAR) in Kansas the argument was often made by its opponents that it was a non-binding resolution and therefore a waste of effort to pass. (Although it does not cost anymore to pass than the Resolution Congratulating a local high school student for winning a spelling bee that the legislators passed just before the TAR.) Some ignorant “patriots” will compromise by acquiescing to the removal of the “nullification” language from a TAR based on this same argument.
    This joint strategy employed by Kentucky and Virginia was recognized by Mr. Barton:

    “Significantly, Virginia and Kentucky had not sought to act alone as individual states. To the contrary, they submitted their proposal to the other states for their approval and joint action. But the other states, upon receiving those nullification resolutions, soundly condemned them. Their explanations for rejecting them centered around three common concerns….”

    “While the Kentucky and Virginia resolutions did propose the right of the collective states to nullify a federal law with which they disagreed, the other states rejected that proposition, so the resolutions were dropped…”

    Ineffectiveness of Nullification

    First, I would concede that nullification will not resolve all problems and it will sometimes not completely resolve a problem. That is the way of life so buck up buddy.

    Second, we should be fair (smart) and not blame nullification for a failure when in fact it is not being used, the improper method is being used, or you have a politician bound and determine to do what she wants regardless.

    Merchants of chattel generally have a legal right to recover or repossess their property if the buyer does not comply with the contract of sale, such as by not making periodic payments to the seller. But, if the seller in his effort to repossess a car, for instance, takes the wrong car then he is guilty of trespass and likely grand thief auto. The problem is not with the remedy of repossession but with the way the merchant tried to employ it.

    Nullification is not premised on the belief that citizens or states can disregard any federal law they don’t like. Nullification is far less likely to be effective and will be “unconstitutional”, as Stubborn says, if the target law is in fact a Constitutional law i.e., it was within the Constitutional bounds of the federal government to regulate in the subject area. In fact, by definition, an act to “invalidate” a constitutional law is not nullification.

    Barton’s Nullification History

    Stubborn refers to an article by noted Constitutional scholar David Barton (Wall Builders) as proof that historically attempts at nullification were ineffective. The chart below summarizes Barton’s events and assessment of them and also the author’s assessment and cites to authority.

    Year Issue Challenged U.S. Present at time States Involved

    1794 1791 whiskey Tax Pres. Washington PENN, VA
    (Washington personally led the army against these states)
    Barton: Nullification Failed
    Author: Not nullification Failed
    See Constitution Art. I §8 cl. 1.

    1798 Alien and Sedition Acts Pres. Adams KY, VA
    (VA. KY. Resolutions)
    Barton: Nullification Failed
    Author: Nullification Failed

    See Constitution Article I §8 cl. 1; Amendments I, IV, V, IX, X

    1809 1808 Embargo Act Pres. Jefferson Mass.
    1809 Enforcement Act

    (“…three days before Jefferson left office he repealed the acts….”he left office

    Barton: Nullification Failed
    Author: Not nullification Successful

    See Constitution Art. I §8 cl. 1.

    1812 1812 Call out of militia Pres. Jefferson Mass, Conn.

    Barton: Nullification Failed
    Author: Nullification Successful

    See Constitution Art. I §8 cl. 15, 16)

    1820 1826(+/-) Fed. Protect of Indians Pres. JQ Adams GA

    (only attempt of the many nullification efforts to be partially successful)

    Barton: Nullification “Partially successful”
    Author: Not nullification Successful

    See Constitution Art. I §8 cl. 3

    1829 1820 Missouri Compromise (slavery on fed land) Pres. Jackson S.C.
    Sale and Expansion of western fed. Land
    1828 Fed. Protective Tariff against Europe
    1832 Lowering of tariff
    1832 Force Act auth fed army to enforce “nullified” tariffs

    (S.C. Position State right to veto fed law subject to ¾ vote)
    (Declared 1828 and 1832 Acts null and void raised and Army)
    (Pres Jackson declared nullification illegal, sent fed army to S.C.)

    Barton: Nullification Failed
    Author: Not nullification Failed

    See Constitution Art. I §8 cl. 1)

    1950+ Integration Acts Pres. Kennedy 8 So. States

    Barton: Nullification Failed
    Author: Not nullification Failed

    See Constitution Art. V, VI cl. 2, Amendment XIV, Declaration of Independence.

    19XX Roe v. Wade
    Barton: Nullification Successful
    Author: Not nullification Partially successful

    Detail Analysis of Barton’s “Nullification” Events

    1812 Call out of militia during war of 1812

    In his article Barton states:

    “Massachusetts pledged its efforts to thwart every action of Congress relating to the war, declaring that it would not fight in any war where the state of Massachusetts had not been specifically attacked on its own soil. The Supreme Court of Massachusetts also announced that any state governor could nullify a declaration of war made by the federal government. Both Massachusetts and Connecticut withheld their state militias from being used to repel the British invasion….”

    (Emphasis added.) But, Barton miss-states the reason Massachusetts and Connecticut refused to provide their militia to the federal government. There was no “repelling” of the “British invasion” as there was no invasion.

    Before and for a time after the U.S. declared war on Britain, the war was largely at sea and some attacks along the U.S.’s western frontier by Indians at the encouragement of the British. The American strategy at the commencement of the war was to attack and take parts of Canada, a British colony. Some authorities’ comments on such follow:

    “The war started unsuccessfully for the Americans as their attempts to invade Canada were repeatedly repulsed….President Madison assumed that the state militia would easily seize Canada and the rest would be negotiations.”

    “Congress’s War Hawks called for expulsion of the British from Canada to ensure frontier security. … the U.S. declared war on June 18, 1812…. A British force burned public buildings in Washington, D.C., including the White House, in retaliation for similar U.S. acts in York (Toronto), Can….”

    “This war was a failed attempt by the young USA to seize Canada while Britain was engaged fighting Napoleon in Europe…. In order to man the Royal Navy, British naval officers impressed seamen from American vessels, claiming that they were either deserters from British service or British subjects, irrespective of whether they had been naturalized by the United States. The United States defended its right to naturalize foreigners and rejected Britain’s claim that it could legitimately practice impressment on the high seas….””

    “…was the result of British maritime policies during the wars between Great Britain and France, the desire of President James Madison to strengthen republicanism, and the American belief that it could secure possession of Canada as a bargaining chip against Great Britain….”

    Massachusetts and Connecticut objected to providing their militia for offensive purposes i.e., invading Canada. Their basis of such objection was Article I §8 cl.15 of the Constitution which provides in relevant part:

    “The Congress shall have Power To… provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…”

    Clearly the use to which the federal government was going to put the states’ militia was not one of the enumerated purposes for which the federal government was authorized to call the state’s militia up under the Constitution.

    Although some parts of the country and the federal administration may have objected to this action by the New England states this was a classical case of “nullification” and it was successful. In this situation the act of nullification was simply not to act in response to the federal government’s request.

    Nullification of 1820

    Barton cites another failed attempt at “nullification” in the 1820s by the state of Georgia. Apparently Georgia was negotiating treaties with domestic Indian tribe(s) within Georgia for the acquisition of the Indians’ land. When Georgia started making preparations to settle the newly acquired land the Indians complained to the federal government which inserted itself to aid the Indians.

    The federal government threatened to arrest any of Georgia’s surveyors or settlers it found on Indian land. Georgia declared it would arrest any federal agents harassing its surveyors and prepared its militia to resist any federal forces that invaded Georgia.

    The federal government did not carry through on its threat to intervene by force to protect the rights of the Indians.

    The federal government based its position on Article I §8 cl.3 which provides:

    “The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

    The Constitution treats the Indian tribes as foreign nations albeit, protectorates of the federal government. Therefore the action of the federal government appears to have been Constitutional and that of Georgia was un-Constitutional. As such by definition Georgia’s action was not one of “nullification”.

    Barton indicates Georgia’s action was “…the only attempt of the many nullification efforts to be partially successful…” He was wrong on all three counts. As noted above, this was not nullification, it was “successful” albeit robbery or thievery and Massachusetts’ and Connecticut’s actual nullification was successful.

    Nullification of 1829

    Mr. Barton next brings up an attempted “nullification” in 1829 by South Carolina related to the federal government’s handling of territories, the sale of land in the territories and imposing a protective tariff against European goods. A South Carolina Senator called for the “nullification” of any federal law, as Mr. Barton puts it, which “…would weaken their [South Carolina’s] interest….”

    Article I §8 cl.1 and 3 provide:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

    Therefore it would appear the federal government had the authority to impose trade tariffs against foreign countries.

    Article IV §3 cl.2 provides:

    “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State….”

    Therefore it would appear the federal government had the authority to “…dispose of and make all needful Rules and Regulations…” regarding federally owned the territory. As such it appears the actions by the federal government were on their face Constitutional. Therefore, South Carolina’s actions to actually negate (ignore) such valid laws were unlawful and by definition did not constitute “nullification”.

    Mr. Barton noted that although the South Carolina Senator “invoked” the Kentucky and Virginia Resolutions of 1798 what the Senator really proposed was not the same as had been suggested by Madison and Jefferson in such Resolutions. Yet for his analysis and conclusions he treats them the same. He said:

    “However, Calhoun went well beyond what had been proposed by Virginia and Kentucky, for rather than proposing that all the states unite in opposition, he asserted that if only one state “vetoed” any federal law, then that federal law could become valid only through a constitutional amendment ratified by three-fourths of the other states….”

    Founders against Nullification

    James Madison

    Mr. Barton asserts that James Madison, in commenting on the South Carolina’s “nullification” procedure, condemned nullification. But even the facts Mr. Barton provides clearly shows this is not true. Madison condemned the South Carolina style of “nullification” which was not nullification at all.

    “[Madison] especially denounced South Carolina’s attempts to invoke his own Virginia Resolution and Jefferson’s Kentucky Resolution as the basis of state nullification efforts…:Madison and Adams thus joined the presidents before them (George Washington, John Adams, and Thomas Jefferson) in denouncing state nullification….”

    This is simply not true as the comments of Madison were not directed at the nullification noted in the Resolves of 1798 but rather the monster proposed by South Carolina.

    Andrew Jackson

    Barton notes Andrew Jackson’s comments on the South Carolina affair, which occurred while Jackson was the President:

    “…and that every good citizen should at all times stand ready to put down, with the combined force of the nation, every attempt at unlawful resistance under whatever pretext it may be made or whatever shape it may assume….It is impossible that any government can continue to exist upon any other principles…”.

    By definition “Jeffersonian” nullifications are not unlawful because by definition they related to laws that go beyond the enumerated authority of the federal government. And, as Jefferson and Madison said in the Resolutions of 1798 and as was repeated by Chief Justice John Marshall, all such unauthorized acts are “null and void”.

    Barton himself notes that the federal acts targeted by South Carolina were Constitutional:

    “…It was significant that no other state – not even any other southern state – stood with South Carolina in its belligerent refusal to follow the rule of federal law. After all, every measure South Carolina protested had been legitimately passed by the entire Congress through the process directed by the Constitution; it was simply that South Carolina disagreed with the result….”

    It is curious that Barton points out the differences between the rebellious acts of South Carolina and the legitimate acts as noted under the Resolutions of 1798, but does not seem to discern the significance of the difference.

    Barton even makes the jump that secession is the “maturation” of nullification:

    “But secession came as no surprise, for it was merely the mature fruit produced by the anarchic maldoctrine of nullification…”

    Thomas Jefferson

    Barton brings up Jefferson’s condemnation of secessionist thought as a condemnation of nullification itself. That does not follow.

    “Nullification is the hallmark of selfishness and anarchy; and selfishness and anarchy, whether by citizens or states, is not a cherished American virtue. To the contrary, a characteristic of America’s greatness has been an unwavering dedication not only to follow the rule of law but also to expend as much time and energy necessary, no matter how long it takes, to make needed changes through the constitutional process…”

    You should note in their Resolutions, both Jefferson and Madison, made it overly clear they were not proposing to end the union but to protect it by protecting the Constitution. South Carolina’s attempt was to circumvent the rule of law not to follow it.

    “Nullification places minority power above majority power. The majority may sometimes be wrong, but when that occurs, Washington reminded Americans that changes must be made only by using ‘the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.’ “

    Washington’s point was if the government needs to be able to act in a way contrary to the Constitution, the way to allow for such is to amend the Constitution under Article V not by simply under taking the action (usurpation) and try to justify it upon the fact such was an “instrument of good” because it would more likely to be used as a weapon to destroy a “free government”.

    Conclusion

    As we can see the conclusions of both Stubborn and Mr. Barton are based on incorrect facts related to what is and what is not nullification. Mr. Barton uses examples of states attempting to get out from under a constitutionally valid law by declaring it “nullified”. Recall nullification proper does not invalid anything. It is simply a statement that a certain federal law is not constitutional and it therefore need not be followed.
    The Supreme Court has held that a law which is repugnant to the Constitution is “null and void” i.e., it is as if the law was never passed. This is logical and consistent with historical norms. Obviously one does not have to follow a law that does not exist.

    Implicit in this principle is that entities do not have to wait until the Supreme Court holds a law is invalid before it is invalid (nor do we have to accept as valid an invalid act simply becouse the Supreme Court so holds) . This is the sum and substance of “nullification”.

    For the sake of Liberty

    Richard D. Fry, Esq.

    State Coordinator –Kansas
    Tenth Amendment Center

    General Counsel
    Patriot Coalition

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