Written Testimony on Behalf of Nullification

Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:

State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.

What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.

Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states. The creature cannot tell the creator what the limits of its powers are. Only the states themselves have the final say over what their undefined and unenumerated powers are. And Madison said that if the central government should intrude into the state’s reserved powers, the states would have a “duty” to “interpose” and protect their citizens from harm.

Consequently, state nullification is not an act whereby a state refuses to comply with a federal law that it doesn’t like. Nullification is the claim that the supposed law is not a law at all because it is unconstitutional. To deny state nullification is to say the central government can define the limits of its own powers which makes our liberties a gift to us from the central government. That is what one is logically committed to who says the Supreme Court has the final say over what the reserved powers of the states are.

But who honestly believes that? The Constitution does not even remotely give the Supreme Court that power. And if an amendment to the Constitution were sent to the states for ratification stating that the Supreme Court has the final say over what the Constitution means, there is no chance it would be ratified by three quarters of the states. The people would not hand over the power to decide their fundamental liberties to nine unelected, politically well connected lawyers.

The Founders knew the central government would inevitably intrude into the reserved rights of the people, and they sought to prevent this with a system of checks and balances. The president can nullify a bill of Congress, but Congress by two thirds vote can nullify that act. The Supreme Court can nullify an act of Congress, or of the president, as unconstitutional. Congress can nullify the powers of the Court by restricting its appellate jurisdiction and by impeachment, and so on with many other nullifications.

We may call these horizontal nullifications operating between the departments of the central government. But what if, instead of checking each other, these departments began cooperating with each other to usurp power from the states to enhance central power and benefit the ruling class? To check this usurpation the horizontal checks are worthless. So the founders wisely recognized the need for a vertical check on central power arising from the people of the several states as sovereign parties to the constitutional compact. That vertical check is known as state interposition or nullification.  Jefferson considered this vertical check to be the most important of all. And it has been used throughout American history to protect the liberties of the people. New England states nullified the embargoes of Jefferson and Madison in 1808-09. They nullified the War of 1812, the draft, and did not participate. Later, Northern states nullified the fugitive slave laws. Orders of the Supreme Court were nullified by Wisconsin in 1859, and there are other cases.

We enjoy ample forms of constitutional nullification (both horizontal and vertical) to protect our liberties. But that does not mean they will be exercised. For instance, by a simple majority, Congress could, under Article III, nullify the Supreme Court’s control over school prayer, abortion, law enforcement, gun control, and a hundred other things by removing those topics from the Court’s appellate jurisdiction. But it has refused to exercise that power. The Republican Party controls the House which has exclusive control of the purse. The House by a simple majority could nullify Obamacare tomorrow by refusing to fund it, but it is not likely to do so. Instead the House cooperates in the expansion of central power. And so it goes.

The states, as sovereign parties to the constitutional compact, have the authority to interpose and to protect their citizens from unconstitutional acts of the central government. If you think Obamacare is bad, wait until you see what we are likely to confront in the future. Now is a historic moment for the states to step forth and erect a shield to protect their citizens from this latest of many intrusions into their reserved powers.

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  • Anonymous

    With no real check on the wont of all three branches of the federal govenment to pass unconstitutional laws (Legislative), take unconstitutional actions (Executive) and let those laws and actions stand (Judicial), something needs to be done.
    It seems to me something more than states nullifying federal laws needs to be done. I don’t know what that would be that would also not become corrupted, but I’m open to ideas. France has a Constitutional Commission, but that’s the extent of my knowledge.

  • http://www.facebook.com/rob.a.holmes Rob Holmes

    This was a great statement. Facebooked!

  • John

    Civil disobedience. We need a tax resistance movement in this country.

  • FreemanDjango

    Some people argue that nullification was not expressly provided for in the Constitution. So, they argue, it must not have been important to the ratifiers or that power does not even exist.

    In addition to the obvious fact that the federal Constitution was not designed to list every power a state had, I point out that the US Supreme Court was not given the power to declare laws unconstitutional and just pulled that out of their collective asses in Marbury v Madison in 1803. Liberals seem to LOVE that power…

    Using the same type of reasoning CJ Marshall used in Marbury, it’s easy to conclude that the states (on behalf of the people of each state) have the power to nullify acts of the Feds.

  • SC-OK

    South Carolina’s AG has already weighed in as to how he sees the issue…
    http://www.scag.gov/wp-content/uploa…haw-county.pdf

    Distressing…

  • Franklin

    “Some people argue that nullification was not expressly provided for in the Constitution.”
    Not that you aren’t thinking the same already, but it was. Isn’t the “tenth” enough for these yutzes? And if they further wish to suggest that my interpretation also reserves, to the states and the people, the right to peaceably do whatever the hell I want that isn’t enumerated, well, my God, they finally stumble upon the truth.

  • Dorwin Dow

    An unlawful order does not need to be obeyed. Indeed, in many cases, it must not be obeyed. Hence nullification is a natural, inherent, necessary, and unalienable right. It is included in the most sacred of properties – the conscience. Only the federal government requires expressed powers. This is an unexpressed right and power reserved for the states and the people. If it were not, the constitution would be meaningless from its inception.

    “Government of, by, and for the people” may be explained by expressions lifted from the Declaration of Independence:
    Government of the people: deriving its just powers from the consent of the governed.
    Government by the people: founded on such principles and organized in such form as the people deem most likely to accomplish their safety and happiness.
    Government for the people: established to secure unalienable rights with the blessings of liberty for the people and their posterity.

    Forms of this expression are found elsewhere, most notably in the familiar Gettysburg Address, yet they derive from an even earlier source: “This Bible is for the government of the people, by the people, and for the people” (John Wycliffe, Prologue to the English translation of the Bible, 1384). Our government was constructed to give “we the people” the final say. In America, in the political sense, sovereignty rests in the people, the government must answer to them, and they have authority to hold it accountable. Our founding fathers warned us that governmental authoritarianism would continually creep in to obscure, erode, invert, and pervert this republican structure.

    “The natural progress of things is for liberty to yield and government to gain ground.” “When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” “Educate and inform the whole mass of the people. … They are the only sure reliance for the preservation of our liberty.” “The price of liberty is eternal vigilance.” — Thomas Jefferson

    Power always tests its limits; once allowed outside its lawful limits, it is restrained only by how much power it can consume as it subtly corrupts everything it touches while shifting accountability away from itself. “We the people” who formed this government to serve us must continually assert our authority over it by exercising those lawful powers given to us by God and embedded in our institutions in order to continually bring government back within the restraints of its lawful constitutional borders. “We the people” are the guardians over the government we created.

    If we ain’t gonna do it, we ain’t gonna do it – and you can’t make us.

  • FreemanDjango

    I could not agree more!

  • redman

    John, tax resistance is not what is needed but rather tax law education. The federal tax is an excise tax and therefore a tax on privilege. See losthorizons.com for the facts and truth on the federal tax.

  • Luke Weinhagen

    I like to use the following analogy to remind people of the relationship between the people and the government:

    You have three children. You tell them one evening that they get to decide what is for dinner but they have to agree with each other.

    Does this mean you as the parent have waived the final say? No, it does not.

    Your children do not have the inherent power to decide what is for dinner, they only have the power you have granted them. If they decide dinner should be cake and ice cream, and all three agree, it does not change the fact that their power is on loan. You can, as the source of that power, say “No, you can pick what we have for dinner but it has to be real food”.

    In doing this you have in essence just created the informal dinner constitution for your home for that evening. You have granted power to a body of others to make decisions on your behalf, and have limited the exercise of that power. Also you recognize that you, as the source of power, have the final say in any and all decisions made using that granted power.

  • Dan Itse

    Yes, the Constitution for the United States does expressly provide for nullification. Only laws pursuant to the Constitution are part of the Supreme law of the land, Article VI. To quote Hamilton in Federalist 33: “But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.” Or in Federalist 28: “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.”

  • Dan

    Tom, I’m curious what check would be in place in the case of a state nullifying a federal law that (arguably I’m sure) is constitutional but they deem not to be in their favor. Sorry I’m sure you addressed this in “Nullification” but I haven’t been able to read it yet.

  • http://www.facebook.com/people/Steve-Jones/1624845227 Steve Jones

    Well, the central government DOES define the limits of its own powers using the federal courts as justification. Believe me, I am all for specific limited powers actually listed in the Constitution. However, if 70 years ago the federal government could demand a farmer not plant wheat for his own use, what freaking chance do we have? Now the federal courts (re. Obama-care) are saying that the federal government can tax anything they want and THAT is total control. For example, what’s to stop them from imposing a $100,000 tax on each gun sold? The Constitution has no teeth.

  • Connie

    When a state legislature refuses to nullify, what recourse do the people have? The 10th says ‘states or the people’. The word ‘or’ suggests to me a way for the people to circumvent the legislature.

  • flcaveman

    They can’t because it would INFRINGE my right to own a gun.

  • FreemanDjango

    Dan Itse

    I wish the Constitution contained an express section that defined a detailed procedure for state nullification. Sadly, the words “in pursuance of” are far too vague to bind anyone who wants to make this argument.

    Quotations from Federal papers are fun to read but they don’t have the force of law, are often contradicted by other writings from the time and are easily ignored by TPTB when they don’t like the sentiment.

    It only took a few years and the USSC decided IT had the power to declare laws unconstitutional in Marbury v. Madison (1803). Not surprising, but it’s too bad the States didn’t get there first…

  • FreemanDjango

    Connie

    Ideally, the people of a State would unseat any legislator who refuses to act according to the US and/or State Constitution. This could be by recall, impeachment or simply at the ballot box. Sadly, the masses today WANT a big government to take care of them so this is just not happening…

  • FreemanDjango

    Steve
    Exactly. Wickard v. Filburn is the case I always bring up when I want to argue that there is simply no limit to Federal power under the case law interpreting the Constitution. The document has become worthless because the people don’t respect it at all. The masses WANT Big Government to take care of them and if it infringes on any of YOUR rights, that’s just too bad. They want what they want…

  • FreemanDjango

    Dan

    The practical effect today of nullification is not really known because it’s not been done in recent times and there is no procedure for it that all the States have agreed to in advance. That’s why it should have been specifically provided for in the Constitution.

    The effect today would depend on the issue in question. If it were a big enough issue, the State should be able to secede over it and go its own way. If the feds weren’t so damn deep into EVERY corner of the nation on EVERY issue, there wouldn’t be many issues that would warrant a big stink.

    Once the US Supreme Court took it upon itself to determine constitutionality in Marbury (1803), the States’ thunder was stolen and the 1798 Kentucky Resolution was gradually forgotten. After the so-called Civil War, the message was clear that States were not allowed to disagree with the all-powerful Central Government.

    Nullification today can’t really occur until the people of the several States see themselves as, theoretically at least, more powerful than the federal government, which was the original idea. We are a LONG WAY from that ideal…

    State governments and their citizens have become so intertwined with the Feds and so dependent on federal money that it’s hard to imagine a State going against the federal will on a major issue for long. If nullification were explored more fully by the people of the States, they might realize that they need to get off the federal teat and start acting as the locus of power they were intended to be in the Constitution.

    Today, the States are like unemployed adult children living at home with Mom and Dad (the Feds) and pretending to be independent. It just doesn’t work. Mom and Dad have the power because they have the money and the wealth behind them.

    Until the States grow up and start to act like the center of power for their citizens, there is simply no real hope for the concept of nullification and diversity among the several States, as originally contemplated in the Constitution.

    As far as I can see, the vast bulk of Americans WANT an all-powerful genie to take care of them so they are not interested in a small central government and local control and responsibility. However, the THREAT of nullification is making some headway when certain issues like guns, aliens and drugs come up in some states.

    But, the power to print and borrow money is an AWESOME power that gives the federal government a HUGE advantage over the States…

  • http://twitter.com/EdwardTPowell Ed Powell

    This is brilliant. You should put it as the Preface of any new edition of your book.

  • http://www.facebook.com/people/Sukdeth-Punjasticle/100002232860607 Sukdeth Punjasticle

    you know that, I know that, but if only he knew that

    http://www.huffingtonpost.com/2013/03/18/missouri-birth-control-law_n_2901115.html?ncid=edlinkusaolp00000009