Sunday, July 8, 2012
Nullification: Is it Constitutional?
The history of Nullification has a long history in the US. It started in 1798 when congress passed a set of Acts known as the Alien and Sedition Acts. At the time congress was worried about a possible war with France (ironic that even then war concerns trumped liberty) and thought it prudent to outlaw speech they deemed supportive of the French. These Acts were supported and passed by the Federalists who used them mainly to suppress political opposition from the Anti-Federalists/Democratic-Republicans. Two Founders, Madison and Jefferson, argued that these two Acts were (and are) unconstitutional. In response they created the Kentucky and Virginia Resolutions. In the Kentucky Resolution Jefferson states: "That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general 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 special 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. While Madison is the author of the Virginia Resolution and of the Constitution, it is interesting to note that even though he was a Federalist he came to this conclusion: "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 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." Through nullification, the States have the ability to uphold the Constitution and the Oath in Article 6 clause 3. This was a way for States to act as a check or safeguard against a tyrannical federal government in case it absorbed powers not enumerated in the first three Articles. They also included the 10th amendment in the Bill of Rights to clarify this. The amendment 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. Unfortunately the Supreme Court has a long history of ignoring States Rights and always being in favor of expanding federal powers that were never delegated to the general government. This started with Justice John Marshall and has continued to the present day. The biggest test to date of nullification and States Rights was the War for Southern Independence more commonly known as the Civil War.Originally the war started out not about slavery but about self governorship. The reason I say for Southern Independence is that the States believed that the Constitution was a contract between the themselves and as such could be ended when so desired. This means that as the States entered into the contract voluntarily, they could also leave as they had not given up their sovereignty. In fact the Revolutionary War was fought because the Colonists refused to implement Parliament's taxes and laws which thereby nullified them. The Founders then understood that nullification could happen at many different levels of government, especially when Thomas Jefferson wrote this in the Declaration of Independence: "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, and to provide new Guards for their future security." When laws are passed by Congress that violate the Constitution then it is the duty of the respective States to preserve civil liberties at all costs. Congress will always find a new excuse or reason to pass a law. If our States fail to act as a check on the federal system then we can be sure to repeat history and We the People will once again be forced to rise up and act as the ultimate check on the system with a revolution.