Publius Huldah. The Bill of Rights and Constitution are ignored. Our Framers advised two remedies to enforce the Constitution. First, James Madison said our constitution requires a virtuous people to select men of virtue and wisdom to office. The second remedy is “don’t go along with the lawlessness.” State legislatures must oppose violations of the Constitution instead of eagerly taking handouts to implement violations of our Constitution. (Timeline 36:00 – 43:00. View her speech here.)
Thomas Jefferson, Alexander Hamilton, and James Madison wrote that each state has the natural right to nullify unconstitutional federal laws on their own. Since the federal government is the creature of the states, the states are the final authority on whether their creature violated the compact. These are the framers’ words, and is proof they supported nullification by the states.
Don’t believe that the states are victims of federal tyranny. When they take money from the government for unconstitutional programs, they are “enthusiastic participants in federal tyranny.”
Rodney Dodsworth Response. Among the three, Jefferson, Hamilton, and Madison, only Jefferson advocated legislative nullification of congressional statutes. From the Kentucky Resolutions of 1799, “That the several states who formed that instrument (the Constitution), 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.” Reason demands those who formed the compact, and not its administrators, be the judge of the extent of powers delegated to it. Despotism is assured when the general government is the exclusive judge of delegated powers.
Alexander Hamilton, in The Federalist #33: When individuals form a governed society, the laws of that society must be the supreme regulator of their conduct. When several “societies combine into a larger political society, the latter, in accordance with its constitutional powers, must necessarily be supreme . . . otherwise, it would be a mere treaty, which is dependent on the good faith of the parties, and not a government.”
However, acts of the larger society that are inconsistent with the powers granted by member societies are usurpations and deserve to be treated as such. Hamilton asked, “Who judges whether laws passed for executing the powers of the Union are necessary and proper?” Further, “If the federal government should overreach the just bounds of its authority, making tyrannical use of its powers, the people, who created it, must appeal to the standard they have formed and correct the injury done to the Constitution as needs may suggest and prudence justify.” Hamilton advised the people to take appropriate, measured action. Just as every infraction of the Constitution does not justify revolution, neither do they necessarily justify nullification.
James Madison, in his January 1800 Report on the Virginia Resolutions of 1798, viewed the Constitution as the deliberative expression of the whole society, of We the People, and therefore the entirety of society should, if necessary, reverse unconstitutional acts. Like Hamilton, he advised a measured approach in which the states, acting in concert through Interposition:
- Seek congressional repeal of the offending law.
- Introduce a constitutional amendment through congress.
- Make applications to an Article V state amendments convention.
As opposed to rendering the offensive act as void within their states, the state legislatures appeal, through their senators, for congressional reconsideration. Next, and through congress once again, the state legislatures press their senators to seek relief through a Constitutional amendment. Finally, on behalf of the sovereign people, states make applications for an Article V convention.
Here, in a convention of the states and subsequent ratification conventions, is the deliberative assembly of one people, one nation, with one interest, that of the whole, where, not local purposes, not local prejudices are the guide, but the general good, resulting from the general reason of the whole. James Madison, wrote, “An individual independence of the states is utterly irreconcilable with the idea of an aggregate sovereignty.”
When members of a republic are faced with usurpation or tyranny, they must correct the errors of the larger republic; it is admission that a government composed of reps of the people and states has tripped, if not failed. The ultimate question to be answered is, when faced with unconstitutional acts by the national government, what is the most appropriate or least objectionable response by the sovereign people?
Do states have a natural law duty to secure the welfare of their communities? They certainly do. Nullification of unconstitutional laws, regulations and scotus opinions is consistent with natural law. Yet, this approach is not hazard-free. When an individual state legislature has the power to defeat congressionally enacted law, law enacted by other states in the Union, the Constitution ceases to be a societal compact. Taken far enough, invalidation of national acts by state legislatures eventually destroys the larger society created by the Constitution, and renders the US, once again, a de facto confederation of independent republics. Nullification is a recipe for disunion. (See Nullification Crisis of 1832.)
My break with Ms. Huldah over nullification isn’t as sharp as my disagreements with her in previous posts. It isn’t that she is wrong, but nullification is not the better or more expedient solution. Legislative nullification of national laws not only invites disunity, it practically begs for the use of force. Unfortunately, where it is practiced, it’s been used to oppose valid Constitutional acts of the nation! By law or practice, sanctuary cities to varying degrees protect illegal aliens from deportation. I doubt this is the sort of nullification Ms. Huldah had in mind.
While the state nullification route is destructive, the Article V convention process is unacceptably too slow to deal with rampant, unconstitutional acts in the thousands by the national government.
But, can the two approaches be melded into an acceptable form that better serves and may save our republic? Yes. Mark Levin’s Liberty Amendment to empower three fifths of state legislatures to repeal national laws, regulations, and supreme court decisions, strikes the balance sought by Article V supporters and opponents. Being neither objectionable nor ponderous, it would empower our state legislators, on behalf of the people, to stand athwart tyranny. Knowing this, a reinvigorated people will be naturally encouraged to closely watch and participate in statewide matters and elections. In quick time, the nation will witness improvement in the quality of state legislators, and just maybe save the republic.
For more on this subject, check out Professor Rob Natelson’s Struggling With Nullification.
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