NULLIFICATION: The Power to Right Constitutional Wrongs

NULLIFICATION - John Greenleaf Whittier (Abolitionist and Nullifier)    by Diane Rufino, July 9, 2015

THOMAS JEFFERSON wondered how the country would respond in the case its government passed a law that was clearly unconstitutional. As Secretary of State under our first president, George Washington, he already witnessed the wheels of government try to enlarge provisions in the Constitution to give the administration unchecked powers to tax and spend. Washington would establish the first National Bank. Jefferson knew the trend would continue. And it did.  Our second president, John Adams, signed the Alien & Sedition Acts into law, which were laws addressing the Quasi War (undeclared) with France at the time. The French Revolution just killed off the monarch and his family and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants and Americans were split in their support of the old French system or the new republic. Although the Alien Acts (3 of them) were offensive, it was the Sedition Act that was most glaringly so. The Sedition Act made it a crime (fines and jail sentences) should any person “write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States….”   The Constitutional red flags went up at once.  The immediate violations jumped out to men like Jefferson and Madison, and many others. While the Alien Acts violated the 10th Amendment and the Due Process clause of the 5th Amendment, the Sedition Act was a blatant violation of the 1st Amendment and its guarantee of Free Speech (most importantly, political speech!)  John Adams, a Federalist, saw nothing wrong with any of the laws.  Neither did his Federalist co-members of government or his Federalist judges.  Thomas Jefferson, the Vice President at the time (since he got the second highest votes in the election of 1796) wasn’t a Federalist. He was a Republican-Democrat (a party he founded).  [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!].  The Checks and Balances didn’t work. Political power was more important than the rights the government was created to protect!

And so, convictions quickly followed. Journalists, publishers, and even congressmen were fined and jailed. Not a single person targeted was a Federalist. The only ones targeted were Republicans.  The men who wrote our founding documents – Jefferson and Madison – began a series of correspondences to discuss what should be done to prevent such unconstitutional laws from being enforced on people who had a rightful expectation of exercising the liberties promised in the Declaration and in the Bill of Rights. (And of course they had to be very careful lest they be convicted under the law!)  Jefferson saw that there are 3 possible remedies when a government tries to enforce unconstitutional laws..  (1) Seek an opinion from the Judiciary;  (2) Secession; or  (3) Nullification.  Jefferson advised against the first two remedies.  He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the President were not required to abide by its ruling. Furthermore, the courts were all Federalists at the time and were part of the problem!.  Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but said it was far too extreme and every effort should be made to keep the union together in a workable fashion.  The third option, he said, was “the rightful remedy.”  Nullification, he said, was the remedy inherent in the states’ ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union.  Madison agreed.

Nullification is the doctrine which states that any law that is made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials – federal and state. When the government passes a law pursuant to its powers, it is supreme and binding. Every level of enforcement recognizes the law. States are obligated to uphold it and help enforce it.  An example are the federal immigration laws.  When the government passes a law that it has no authority to make – such as the Sedition Act, which offends the 1st Amendment which is a strict prohibition on the government with respect to individual speech (political speech) – then in terms of legality, the law is null and void.  For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws).  Since the law is null and void, no enforcement agency should force the law on the people. Government will never admit its law is unconstitutional or unenforceable and so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced.  The states are the rightful parties to stand up for the people against a tyrannical act of government. When the government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People (see the 10th and the 9th Amendments).  Every party must always jealously guard its sphere of government; it’s bundle of rights.  States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.

Well, immediately, Jefferson and Madison got out their pens and drafted the Kentucky Resolutions of 1798 and of 1799 (Jefferson, for the Kentucky state legislature) and the Virginia Resolutions of 1798 (Madison, for the Virginia state legislature).  Both states passed them, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states.  The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.

In the Kentucky Resolutions of 1798, Jefferson wrote:

  1. Resolved, 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.

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as 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, agreeable to its obvious and real intention, 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, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing 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, being sovereign and independent, have the unquestionable right to judge of its infraction; and that anullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. 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 the compact; as no further valid that 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.

The government hates the doctrine of Nullification and has used every opportunity to discredit it.  And it makes sense.  And doctrine that gives power to the States is offensive to the federal government. It makes them harder to control. We all know how angry the government gets when any state criticizes or attempts to frustrate the government’s laws, policies, and agenda.  Nullification, like secession, is a fundamental sovereign power reserved to each state. Since the states did not form the Union by unlimited submission to the common government they created, certain powers remain vested in them.  Despite what Lincoln and Obama may claim, the states did NOT create, or attempt to create, or even envision creating a “perpetual” Union by ratifying the Constitution.  Those words are merely wishful thinking by despots and revisionists.

NULLIFICATION - When Injustice Becomes Law, Nullification Becomes a Duty

The biggest tool the government has in its arsenal to shut down the discussion of Nullification is RACISM.  According to the government’s position – as evidenced in texts, government spokespersons, liberal pundits, college professors – Nullification is a racist doctrine that was used to help the states resist integration following Brown v. Board of Education (1953). For years, the southern states were demonized and punished by the northern states for the Civil War (War of Northern Aggression) and because the North was forcibly and quickly transforming their society, there were actions that would clearly be classified as “reactive” and “lashing out.” The North, as the victors of the war, had the benefit of writing history and telling the “official” story.  Nullification was used once in the south after the Brown decision. It was used by the governor and state legislature of Arkansas to prevent integration of the schools in the state (they amended the state constitution). They believed the decision was arbitrary and unconstitutional and believed the court had no power to enforce it. After all, approximately 1/5 of the entire membership of Congress signed a statement in 1956 pretty much declaring the same thing. They also feared what would happen given the level of hostility in the state. But Little Rock continued to move forward with its plan for desegregation. Eventually, in 1958, the Little Rock School Board filed suit asking for a court order allowing them to delay desegregation. They alleged that public hostility to desegregation and opposition created by the governor and the state legislature created an intolerable and chaotic situation. The relief the plaintiffs requested was for the African-American children to be returned to segregated schools and for the implementation of the desegregation plan to be postponed for two and a half years. The case went to the Supreme Court, which declared that no state had the right to ignore any of its decisions. Citing Chief Justice John Marshall in Marbury v. Madison, the Court emphasized that its decisions are binding on all the states and that to ignore them is to “wage war on the Constitution.” In other words, opponents of nullification assert that this case stands for the premise that states cannot nullify federal laws.

Racism invites passion. It questions motives, clouds judgment, obscures facts, and shuts down debate. Racism assumes that no party has any grievance or concern more important than that of the African-American. It assumes there is no part of history more important than slavery, abolition, and Jim Crow.  Racism never dies, according to the government.  Racism never dies, according to the irresponsible media.  Perhaps it is no coincidence that our current government is fanning the flames once again in history of racism and making sure we are once again defined as a racist nation. In this time when Nullification should be the topic everyone wants to re-address, the countering argument will always be: “Look, they’re trying to go back to the days of segregation.”

And so, I wanted to write this to emphasize the REAL story of Nullification..  and the REAL success of Nullification.  It wasn’t in light of the Alien & Sedition Acts. It wasn’t the publication of the Kentucky and Virginia Resolutions (because, let’s be honest, most of the other states were too timid to adopt similar resolutions and so the states, in the end, didn’t stand up to the government as Jefferson and Madison had hoped. There were probably 2 reasons for this: (1) The Acts were set to expire at the end of Adams’ term, which was only 2 years away so why get their panties in a wad; and  (2) the Union was extremely fragile at this point  – rebellions all over the place over the government’s authority to tax and collect – and the states didn’t want to exacerbate the situation.  The real success story of Nullification was in the rejection of the Constitution’s Fugitive Slave Laws.

Yes, the American flag, believe it or not, was the official flag of a slave nation for 77 years (1788 – 1865).  Slavery was protected in the United States by the Constitution for those years. Although slave importation had been abolished by the time the Constitution was ratified and the Union was created, the institution itself was still constitutional. Not only was it constitutional, but slaves, as property, were required (by the Constitution) to be returned to their owner. State agents, courts, and instrumentalities were required to enforce these federal laws.  But abolitionists in the North, like Rosa Parks herself sitting on a seat in a public bus, knew that the laws were revolting and fundamentally wrong.  Through civil acts of disobedience, like Ms. Parks refusing to give up her seat, those in states of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, either outright enacted laws which nullified Fugitive Slave Laws or they acted to frustrate or otherwise render useless any attempt to enforce them. Nullification was a very successful way for escaped slaves to finally realize freedom in the North. It’s pretty hard to claim Nullification is racist, like its opponents do, when it served such a public good (while the US Constitution protected something so evil).   The following video does an amazing job to educate people on the history of Nullification and to explain its power to right wrong.  (from the Tenth Amendment Center)


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