Keep the Federal Government in Check with NULLIFICATION – Not Liberty Amendments!

Nullification - Mark Levin v. Thomas Jefferson

by Diane Rufino, October 10, 2013

Mark Levin, who wrote an excellent book “The Liberty Amendments” to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers “kooks.”  His solution is to keep the federal government in check by a series of constitutional amendments.

My question to Mr. Levin is this:  Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to “alter or abolish” government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean?  It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that’s why those amendments are included… They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It’s time those who have had their rights trampled upon step up and say NO MORE.  Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence.  As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter.  The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

The Rightful Remedy is Nullification and NOT constitutional amendments. Don’t get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy.  But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People.  Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to “Please, please, please try to respect the Constitution.”

It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core.  John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…  It is stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves.”  Thomas Paine, in his Rights of Man, wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  And in 1782, in his Notes on Virginia, Thomas Jefferson explained: “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”

I believe Mark Levin is dead wrong in attacking the Nullification movement.  I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution – when the Constitution was never legally amended to get us in the predicament that we are in – then he has a flawed understanding of our founding principles and the American founding philosophy of government.

He presupposes that only the People and the States need to abide by Constitutional limits.  It doesn’t matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms.  Mr. Levin is so hung up on “what the People and the States can constitutionally do” to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote “The Liberty Amendments,” the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual.  A government that is supposed to serve the People (“that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”) should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from “altering” their government so that it isn’t “becoming destructive of its ends.” Nullification, on the other hand, checks the government at every instance.  It puts sovereign power in the hands of those who were the intended depositories – the People.

Nullification is the magic bullet.  As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

Opponents of Nullification want to take this remedy away.  They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on.  First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause.  They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement “badge” that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don’t get the urge to second-guess the actions and intentions of the federal government.

Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld.  Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States.  Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws.  Opponents of nullification claim this is the constitutional.

They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim.  The two principles actually work hand-in-hand.  The Supremacy Clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn’t say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority.  And that’s where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People.  A free people should never have to suffer the enforcement of unconstitutional laws on them.

Unfortunately, the government doesn’t want to recognize the inherent limitation in the Supremacy Clause – that only those laws made “in pursuance” to the Constitution are supreme.  It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause.  People want Liberty.  Governments want concentrated power.  These are competing goals.  Our Founders understood that.  And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government.  “Reserved” powers meant exactly that.  Those powers not expressly delegated to the federal government are reserved by the People and the States.

In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn’t have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history – the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion.  That opinion held: “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

Chief Justice Warren continued: “It is necessary only to recall some basic constitutional propositions which are settled doctrine.  Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,  that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 “to support this Constitution…..  If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

Justice Frankfurter, concurring in the opinion, wrote separately: “The States must yield to an authority that is paramount to the State.”

Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based.  Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

The Supreme Court likes to cite its early decision in Marbury v Madison (1803).  Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution.  And it’s no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government.  Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers.  Nullification doesn’t ask us what the Supreme Court says on a particular matter.  Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority.  Nullification is an implied principle.  It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples’ rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

As we all know, We the People are vested, under Natural Law and God’s Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the “consent of the governed,” by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights).  The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to “alter or abolish” their government when it becomes destructive of its ends.  As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles.  The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain “declaratory and limiting phrases” – which would be our Bill of Rights.  Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively.  This is precisely the type of government referred to and envisioned in our Declaration…  one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it.  But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power.  That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power.  Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects.  In particular, the decision emphasized and reinforced two key constitutional themes:

(1)  Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified).  Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don’t magically change definition as the times change and the Constitution doesn’t evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

(2)  Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party.  Anytime a justice veers from his oath and doesn’t interpret the Constitution according to strict construction and original intent he commits TREASON.  “The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.”

On the other hand, Jefferson disagreed with Marshall’s reasoning with respect to judicial review, the doctrine the case is known for establishing.  In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. “Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.  If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Marshall continued: “An act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written Constitution.”  In other words, when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid.  Jefferson criticized the decision by arguing that “the Constitution has erected no such tribunal” with such power.  He argued that “to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy.”

It’s worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of “judicial review”).  There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

As one lawyer and opponent of Nullification writes: “Anyone who believes that Nullification is legitimate either 1) Hasn’t read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside.”  Obviously this lawyer hasn’t read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself.  Both warned about putting too much power in the federal judiciary.

Thomas Jefferson wrote to William C Jarvis in 1820: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”   

Jefferson wrote to Charles Hammond in 1821: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

And Abraham Lincoln, in criticizing the Dred Scott decision, said: “If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

I have read what our Founders wrote about Nullification.  I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based.  I believe it to be as foundational a principle as limited government and “government of the People.”  I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders – to honor the spirit of our American Revolution and to secure individual liberty.  I always question the intentions and judgment of federal court judges.

Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court’s decisions: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”  And we should take his advice and disregard the Court’s opinion in Cooper – and in Ableman too!

Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

      “A decision by the Supreme Court does not establish a ‘supreme Law of the Land’ that is binding on all persons and parts of government, henceforth and forevermore.  Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary.  But there is a necessary distinction between the Constitution and constitutional law.  The two are not synonymous. The Constitution is a document of our most fundamental law.  It begins ‘We the People of the United States, in Order to form a more perfect Union…’ and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed – the fundamental requirement of any legitimate government – is transformed into a government complete with ‘the powers to act and a structure designed to make it act wisely or responsibly.’ Among its various ‘internal contrivances’ (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, ‘the supreme Law of the Land.’

      Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

      The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution – the executive and legislative no less than the judicial – has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.  For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

     But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

     Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story.  In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than ‘the supreme law of the land.’ Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is ‘what the judges say it is.’ The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

     Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President’s to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee – which, by the way, passed his state’s Senate by a vote of 39 to 9 – would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood – that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land – just like the Constitution.  He was faulted, in other words, for failing to agree with an idea that would put the Court’s constitutional interpretations in the unique position of meaning the same as the Constitution itself.

     My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, ‘that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ This was the reason, in Marshall’s view, that a ‘written Constitution is one of the greatest improvements on political institutions.’

     Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, ‘each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’ And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is ‘our peculiar security.’

     Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, ‘is to submit to government by judiciary.’”

It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

Here is my biggest problem with Mr. Levin’s promotion of his “Liberty Amendments” – aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do.  Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process….. Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification.  Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government.  When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table.  In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, “those of us with the authority to say no to the federal government executing that authority.”  As every supporter of Nullification knows, the individual states pre-existed the federal government.  While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand).  As Maharrey explains: “The states created the federal government and enumerated power to it.”  In his writings and when he presents, he is quick to cite Madison’s famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

Nullification - Michael Maharrey 2013

Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution.  Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government.  Government is a “creation” of the People and not its ruler.

If our Founding Fathers and founding revolutionaries had taken Mark Levin’s approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention – to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government – and hence the delegates were without proper authority to do what they did).

Thomas Jefferson wrote: “That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by 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 a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY.”   [Kentucky Resolutions of 1799]

James Madison, in his Notes on Nullification (1834), explained: “…when powers are assumed which have not been delegated, a nullification of the act“ is “the natural right, which all admit to be a remedy against insupportable oppression…”

In the Virginia Resolutions of 1798, Madison wrote: “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 (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are 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…”

At North Carolina’s ratifying convention, James Iredell told the delegates that when ‘Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.’  In December 1787, Roger Sherman of Connecticut observed that an ‘excellency of the constitution’ was that ‘when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.’”

I’ll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

Constitutional attorney, Publius Huldah, recently wrote: “Resistance to tyranny is a natural right – and it is a duty.”   I’ll support Ms. Huldah’s position anyday over those attorneys who oppose Nullification.  Ms. Huldah sides with the People and their Natural Rights.  Those other attorneys side with a centralized, all-powerful and all-knowing government – the very thing we fought a Revolution to rid ourselves of.

In the United States, natural rights are protected by government and not violated by it.  At least that was the American ideal.

Nullification is the Rightful Remedy when you understand the simple truth – that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves.  The federal government is not just stepping on the States’ rights, but it is a usurpation of INDIVIDUAL liberty.  Nullification is our immediate remedy to re-assert and reclaim those rights.  Read the Declaration of Independence again.  All government power comes from the individual.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf.   They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose.  Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be “worked upon by the temper of the times.”  All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

Again, as Thomas Paine wrote in his Rights of Man (1791): “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation.”  For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War.  Washington wanted his men to understand full well what they were fighting for in America’s quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. “

That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government…”   The federal government has no right or power to interfere with the right of the People to do so.  Similarly, it has no right to take away the remedy of Nullifcation.

Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: “How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?” As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express “further limitation” on the federal government. In other words, the federal government would be limited by the recognition and assertion of States’ Rights and States’ powers.  The preamble to the Bill of Rights states clearly that “a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”  In other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States’ rights and People’s rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can’t limit the Bill of Rights.  After all, the Bill of Rights is also a limit on the federal courts !!

In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin’s Article V Convention will offer any real relief.  It is very unlikely that our constitutional republic can be properly restored under that scenario – at least not in the near future. The American people are growing too restless and frustrated to wait.  In his article about a Nullification event in Wisconsin, Christian Gomez wrote: “As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: ‘All it takes for evil to succeed is for a few good men to do nothing,’ Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting.”

 

References:

Thomas Woods, “Is Nullification Unconstitutional?,” February 5, 2013.  Referenced at:  http://www.tomwoods.com/blog/is-nullification-unconstitutional/

Christian Gomez, “’Restoring the Republic’ Event in Wisconsin Addresses Nullification,” The New American, September 25, 2013.  Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification,” Freedom Outpost, September 14, 2013.  Referenced at:  http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

Cooper v. Aaron, 358 U.S. 1 (1958)

Ableman v. Booth, 62 U.S. 506 (1859)

Marbury v. Madison, 5 U.S. 137 (1803),

Edwin Meese III, “The Law of the Constitution.”  A Speech delivered to Tulane University on October 21, 1986.  Referenced at:  http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

Federalist No 45.  http://avalon.law.yale.edu/18th_century/fed45.asp

James Madison, Report of 1800.  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

 

APPENDIX:

Ableman v. Booth (1859)  –

The Court noted:  “It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court.”

It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

This Constitution, and the laws of the United States which shall be passed 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, anything in the Constitution or laws of any State to the contrary notwithstanding.’

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.

The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some tribunal was created to decide between them finally and without appeal.

This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.

We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States…..

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them…..   Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.

The Fugitive Slave Act is fully authorized by the Constitution of the United States.”  [pp. 516-525]

 

Is Nullification Unconstitutional

By Thomas Woods, February 5, 2013

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose of and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my article: “Nullification: Answering the Objections,” by Tom Woods, Liberty Classroom [http://www.libertyclassroom.com/objections/ ] and/or pages 288-290 of my book Nullification.

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NULLIFICATION: The Truths and the Fallacies

Nullify Now - North Carolina (Thomas Jefferson quote)    by Diane Rufino

PART I:  Nullification is the Rightful Remedy to Limit the Federal Government to its Constitutional Objects

Nullification is the theory that says that actions of the federal government that are passed, imposed, or exercised in excess or abuse of the express authority granted in the Constitution are not enforceable. If there is no proper foundation for the action, then that action is null and void and a state has the right, in fact the duty, to refuse to enforce it on its people. Nullification is an essential principle to ensure that the People are insulated from federal tyranny.

Nullification is a legal theory rooted firmly in constitutional history and based on the very limitations articulated in the US Constitution, specifically the Tenth Amendment and Article VI, Section 2 (“Supremacy Clause”). It is based on the federal nature of our government (separation of powers; “dual and competing sovereigns”), on the Supremacy Clause (only those laws made “in pursuance to the Constitution” are supreme and therefore trump state law), and most strongly, on the compact nature of the Constitution (the states formed the Constitution as a compact, agreeing to delegate some of their sovereign power – certain specified powers – to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a “right to judge for itself” the extent of the federal government’s powers).  The compact – the social compact – that the states signed in forming the Union in 1789, is similar to contract law. Contracts, as we all know, outline the obligations and benefits to each of the signing parties. The parties are likewise bound by the express language of the contract. We understand this theory and this issue of contract construction as we all have signed contracts. If one party attempts to change the terms or exceed authority under the contract, the other party can either chose to ignore the perverted exercise of contract power or can break the contract altogether.

The fundamental basis for government and law in this country, as in most societies, is the concept of the social compact (or social contract). Social compact is an extension of Natural Law (upon which our Declaration is based) which states that human beings begin as individuals in a state of nature and then organize into societies for mutual benefit. They create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. James Madison confirmed the nature of the US Constitution as a social compact in Federalist No. 39.

The key features of a social compact are: (i) retention of natural rights; (ii) common defense of those rights; and (iii) limitation of government power.

Now, it is true that the compact assures that the Constitution and the laws made in pursuance to it (Article VI) shall be valued as the supreme law of the land, but the converse is equally true. All power not expressly granted is reserved by the States and on those objects, state law is supreme law. This is our system of dual sovereignty. That is the brilliant design feature of our American government system which our Founders believed would ensure the protection of our God-given rights. But unfortunately, our Founders thought the government could be trusted to respect its boundaries, to protect that “precious jewel” that is liberty. They believed that if the branches of government were “advised” that their particular actions were unconstitutional, they would quickly remedy the situation and undo what they had done.

Hah, fat chance that was going to happen. It was only a few years into the operation of the federal government when it attempted, successfully too, to enlarge its powers and redefine the terms of the Constitution. And that’s when our most important Founders – Thomas Jefferson and James Madison – had to remind state leaders why we fought the Revolutionary War in the first place and what their fears had been when considering ratifying the Constitution. That’s when Jeffersonian Nullification was born. It was born out of the notion that the federal government must not be permitted to hold a monopoly on constitutional interpretation, for if it has the unchecked power to judge the extent of its own powers, it will continue to grow and encroach on the rights and liberties of the People and the States.

In his written assurances to the States that the Constitution was delegating only limited powers from them to a federal government, Alexander Hamilton wrote in Federalist No. 78: “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

In order that the States (and the People) be completely assured of what precise objects that their sovereign power was being delegated to the government for, James Madison explained it in the clearest of terms in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”    

In Federalist No. 26, Alexander Hamilton wrote: “The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”

And with this duty to protect its citizens against encroachments from the federal government – to be both their VOICE and their ARM of discontent – we see the seeds that were sown for Nullification and Interposition (the duty to intercede and prevent the usurpation and “arrest the evil”).

Our Founders understood the nature of power….  Power can only be checked by power.

In the Kentucky Resolutions of 1799, which questioned the constitutionality of the Alien & Sedition Acts, Thomas Jefferson wrote:

If those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by 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 a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY:  That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution…

In the Virginia Resolutions of 1798, also addressing the unconstitutionality of the Acts, James Madison wrote:

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 (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are 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…

       That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy..

Historians and constitutionalists explain the Jeffersonian theory of Nullification in a way that is slightly misleading. They teach us that constitutional theory allows a state the right (and perhaps even the duty) to nullify, or invalidate, any federal law which that state has determined to be outside the powers delegated to the government under the Constitution. In other words, they say, a state has the right to determine when a federal law is unconstitutional and therefore decide not to enforce it.

Nullification is actually simpler than that. We live in a country founded on the notion of Individual Sovereignty – that man is supreme and government flows from the sovereign rights and powers of the individual. In our free society, founded on the supremacy of individual rights, constitutions were drafted to list those powers that the people agreed to delegate to their government for the protection of their rights and the orderly management of their communities. The US Constitution was no different. All other powers were retained by the People. Laws are only enforceable in such a constitutional republic when there is express authority granted by the People to do so. Consequently, when the federal government passes a law that exceeds or abuses power delegated in the Constitution, that law is AUTOMATICALLY  NULL and VOID.  It is automatically unenforceable on a free people. Judges are SUPPOSED to declare it void (to put that official check on the legislative branch and force them to repeal the law), but even if they don’t, the law is already null and void.  The federal judiciary was originally intended to be a “check” and was supposed to “advise” only. It was intended to be the weakest of all branches.

So, under the doctrine of Nullification, the states don’t really declare laws to be null and void.  Rather, they recognize that certain laws are null and void. Then they exercise their duty to maintain the integrity of our free society by refusing to enforce any unconstitutional law on their citizens.

PART 2:  Nullification is a Constitutional Principle, Exercised by our Founding Generations

There is no easier way for tyranny to take hold than for a People to remain silent when they know, or should know, what their rights are. There is no easier way for a government to usurp the natural rights of a People to govern themselves than to stand by and let that government legislate when it has no authority to do so.

The early colonists certainly didn’t miss an opportunity to stand up for their rights. In fact, the Sons of Liberty formed (much like today’s Tea Party and Tenth Amendment Center) to point out where Britain was violating their rights and to help organize opposition and protest. Samuel Adams, the leader of the Sons of Liberty in Boston, wrote the following in 1769 with these words:

DEARLY BELOVED,

REVOLVING time hath brought about another anniversary of the repeal of the odious Stamp Act,—an act framed to divest us of our liberties and to bring us to slavery, poverty, and misery. The resolute stand made by the Sons of Liberty against the detestable policy had more effect in bringing on the repeal than any conviction in the Parliament of Great Britain of the injustice and iniquity of the act . It was repealed from principles of convenience to Old England, and accompanied with a declaration of their right to tax us; and since, the same Parliament have passed acts which, if obeyed in the Colonies, will be equally fatal. Although the people of Great Britain be only fellow-subjects, they have of late assumed a power to compel us to buy at their market such things as we want of European produce and manufacture; and, at the same time, have taxed many of the articles for the express purpose of a revenue; and, for the collection of the duties, have sent fleets, armies, commissioners, guard acostas, judges of admiralty, and a host of petty officers, whose insolence and rapacity are become intolerable. Our cities are garrisoned; the peace and order which heretofore dignified our streets are exchanged for the horrid blasphemies and outrages of soldiers; our trade is obstructed ; our vessels and cargoes, the effects of industry, violently seized; and, in a word, every species of injustice that a wicked and debauched Ministry could invent is now practiced against the most sober, industrious, and loyal people that ever lived in society. The joint supplications of all the Colonies have been rejected; and letters and mandates, in terms of the highest affront and indignity, have been transmitted from little and insignificant servants of the Crown to his Majesty’s grand and august sovereignties in America.

These things being so, it becomes us, my brethren, to walk worthy of our vocation, to use every lawful mean to frustrate the wicked designs of our enemies at home and abroad, and to unite against the evil and pernicious machinations of those who would destroy us.”

Son of Liberty

From a small, secret group of agitators in Boston and in Connecticut, the Sons of Liberty grew to the point that there was a group in every one of the thirteen colonies. They organized demonstrations, circulated petitions, published newspaper articles, distributed flyers and handbills, and in general did all they could to bring the message of liberty to the colonists. But it was their simple acts of civil disobedience – like protesting a tax on tea by dumping 342 chests of tea into the Boston Harbor, protesting the tax on documents (Stamp Act) by forcing officials to the Crown to resign or to refrain from unloading ships from Britain, or forming angry mobs in response to the Quartering Act – which prevented the enforcement of some of the acts of Parliament that the colonists found intolerable. It was when the King responded with further punitive and oppressive measures – which Jefferson would refer to as “abuses and usurpations” – it was clear the colonies would have to declare their independence in order to remain free.

By frustrating the enforcement of the Stamp Act and the other intolerable, the Sons of Liberty exercised their early right of nullification. They recognized that the British Parliament had no right to legislate for them when they were not provided representation, as guaranteed in their English Bill of Rights of 1689. Any piece of legislation that is passed without proper authority is automatically null and void and cannot be rightfully enforced. This is the basis of the doctrine of Nullification. The Sons of Liberty stood up for this principle and energized the colonists to stand up for their rights and especially their right NOT TO SUBMIT to laws that were not properly passed in accordance with their government charters.

Nullification, as you can see, is an important check and balance on the power of the federal government, which seeks, at every turn, to enlarge and concentrate its powers and to pervert the meaning and intent of the Constitution. There has been no greater enemy than the federal courts which now openly, flagrantly, and arrogantly declare that the Constitution is a “living, breathing document” that is to be re-interpreted willy nilly and as they, the judges, believe will best reflect and serve the social norms of the day.

In fact, Nullification is probably the most important check and balance of them all. Dual and co-equal sovereigns, each jealously guarding their respective sphere of power, will maintain that delicate balance of power that our Founding Fathers designed and which the States themselves agreed to. It’s the same way that two skilled attorneys, adversarial in nature (the prosecution and the defense) will aggressively provide that justice is served. And it’s the same way that two political parties, one to the left in its ideology and the other to the right, will ultimately assure that policy remains somewhat in the middle so that our society is tolerable for everyone.

In Federalist No. 33, Alexander Hamilton asked and answered an important question: “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”  Hamilton doesn’t limit the measures that people can use to redress the situation when government oversteps the bounds of its authority.  According to Hamilton, the remedy should be in proportion to the violation. If we are to take Hamilton at his word for the government’s taxing power, we should, with the same enthusiasm, take him at his word for the ability to push the government back within the bound of the Constitution.

Referring to the title of this article, the truth is that Nullification is a valid constitutional doctrine reserved “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact (US Constitution).”  James Madison, Virginia Resolutions of 1798. The states, who wrote, debated, amended (Bill of Rights), and ratified the Constitution to create the federal government are the rightful parties who have the authority, and are indeed “duty-bound, to interpose (intercede) for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”  Virginia Resolutions of 1798.  The truth is that Nullification, while not under that express term, was an important principle and an important tool to prevent abusive and unconstitutional laws from being enforced on the colonists/colonies and then on the citizens of the various “united” States and the states themselves when the US Constitution was adopted. The fallacy is that the Constitution itself, through the Supremacy Clause, renders Nullification an illegitimate remedy. Thefallacy is that the Supreme Court, as the ultimate authority on the intent and meaning of the Constitution, has rejected the doctrine. The fallacy is that Nullification was the favored state remedy of slavery proponents and white supremists. And the fallacy is that the Civil War distinguished rightful remedies to limit government power.

Part 3:  Opponents of Nullification Attempt to Discredit our Founding Principles With Various False Criticisms

            A.  The Misrepresentation of the Supremacy Clause and Proper Constitutional Bounds 

Critics are quick to say that the theory of nullification has never been legally upheld and in fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958. They say that the courts have spoken on the subject and have held that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.

The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of Nullification as the other branches are. As will be discussed later, the federal judiciary was the first branch to enlarge its powers, in the case of Marbury v. Madison.

Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”  The is no debate that the Constitution, as originally drafted and defended, and as intended and ratified, designed a government of limited powers. Therefore it follows that only laws passed to legislate for the limited functions listed in the Constitution are supreme. Regarding objects and designs not expressly listed in the Constitution, the Ninth and Tenth Amendment remind us that they are reserved to the People or the States, respectively, and the federal government can claim no such supremacy. The Supremacy Clause states a preemptive doctrine that asserts sovereignty just as equally as the Ninth and Tenth Amendments assert sovereignty.

Hamilton continued in Federalist No. 33: “It is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. 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. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

Critics also like to discredit Nullification by associating it with the more controversial episodes in our history.  A popular claim is that Nullification was used to perpetuate slavery because it was embraced by Southern leaders who did not want blacks to take their place as free and equal men in their societies. They especially link Nullification to South Carolina’s colorful Senator John C. Calhoun who was not only a vocal proponent of the doctrine and used it to justify his state’s refusal to recognize the Tariff of Abominations in 1832, but he was a strong supporter of slavery and a white supremist. They like to say that Nullification led to the tariff crisis (or Nullification Crisis of 1832) pitting the South against the North and eventually precipitating the Civil War. They allege that the Civil War settled the question of Nullification.

There are so many flaws in these arguments.

Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws, including the Tariff of 1828, the Tariff of 1832, the Fugitive Slave Act of 1850, and even the 1854 ruling by the Wisconsin Supreme Court which held that Wisconsin didn’t have to comply with the Fugitive Slave Act. None of these efforts were legally upheld, although all were successful in providing the relief they sought.

In the late 1820′s, the nation suffered an economic downturn, with South Carolina being hit especially hard. The government enacted high protective tariffs (high tariffs on imports, particularly finished goods). The North, industrial as it was, manufactured finished goods but needed raw materials (such as cotton, sugar, etc) while the South, an agrarian society, purchased almost all finished products from imports. It also made most of its money from its export of cotton, tobacco, and sugar. The tariff, as the South viewed it, harmed the South while at the same time providing an enormous benefit to the North. With the higher prices on imported finished goods, it had the effect of “protecting” the products of the North. In other words, the finished goods of the North would be preferred over imports because of the price. The South would be forced to buy products from the North, thus enriching the North. On the other hand, because of the United States’ high protective tariffs, other countries retaliated by imposing high tariffs on American imports, which greatly harmed the South. To compete, the South had to lower her prices. Like a vulture, the Northern industries noticed that Southern cotton, sugar, etc weren’t selling and took advantage of the fact that they could buy her goods at reduced prices. South Carolina was opposed most vehemently to the protective tariffs. South Carolina believed that a “common government” should serve both regions equally and in this case, it was harming the South in order to enrich the North. South Carolina alleged that the tariffs were extremely detrimental to her well-being.

In the summer of 1828, South Carolina state representative Robert Barnwell Rhett appealed to the governor and to his constituents to resist the majority in Congress regarding the high tariff (referred to as the “Tariff of Abominations”). Rhett emphasized the danger of doing nothing:

But if you are doubtful of yourselves – if you are not prepared to follow up your principles wherever they may lead, to their very last consequence – if you love life better than honor,…. prefer ease to perilous liberty and glory, then awake not!  Stir not!  Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair.”

Also in 1828, John Calhoun published his “Exposition and Protest,” although anonymously, in which he discussed Nullification. (He was Andrew Jackson’s Vice President at the time and Jackson was strongly opposed to Nullification):

If it be conceded, as it must be by everyone who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion.”

In 1832, inspired by Calhoun’s defense of Nullification as the rightful remedy to not suffer unconstitutional federal legislation (he strongly supported and promoted the Kentucky and Virginia Resolutions, by Thomas Jefferson and James Madison, respectively), South Carolina decided to use the doctrine to escape the oppression of the tariff.  Its position was that Nullification could be used by a state to resist a federal law that was not specifically authorized by the U.S. Constitution.  South Carolina then assembled a democratically-elected convention and issued an Ordinance of Nullification. This ordinance declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of South Carolina.

The Ordinance of Nullification read:

Whereas the Congress of the United States by various acts, purporting to be acts laying duties and imposts on foreign imports, but in reality intended for the protection of domestic manufactures and the giving of bounties to classes and individuals engaged in particular employments, at the expense and to the injury and oppression of other classes and individuals, and by wholly exempting from taxation certain foreign commodities, such as are not produced or manufactured in the United States, to afford a pretext for imposing higher and excessive duties on articles similar to those intended to be protected, bath exceeded its just powers under the constitution, which confers on it no authority to afford such protection, and bath violated the true meaning and intent of the constitution, which provides for equality in imposing the burdens of taxation upon the several States and portions of the confederacy: And whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish, hath raised and collected unnecessary revenue for objects unauthorized by the constitution.

      We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled “An act in alteration of the several acts imposing duties on imports,” approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled “An act to alter and amend the several acts imposing duties on imports,” approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.”

The Ordinance of Nullification was not received well and soon escalated to what came to be referred to as the Nullification of 1832. Andrew Jackson was inflamed and was intent on arresting Calhoun and having him hang in Washington DC. He also had Congress pass the Force Bill which authorized the use of military force against any state that resisted the tariff acts. It was feared that South Carolina would secede if pushed, and so, the members of the US Senate and then House came together to work out a solution. In 1833, Senator Henry Clay and Senator Calhoun proposed a compromise bill to resolve the Crisis. The Tariff of 1833 (also known as the Compromise Tariff of 1833), would gradually reduce the tariff rates over a 10-year period to the levels set in the Tariff of 1816 – an average of 20% lower.  The compromise bill was accepted by South Carolina and passed the US Congress and thus effectively ended the Nullification Crisis.  South Carolina got the relief it sought.

As a side note, Abraham Lincoln, who ran on the Republican Platform for president in the election of 1860, was originally a Whig and was still a Whig at heart. He was a true follower of Senator Henry Cabot Lodge.  As such, he was a strong supporter of protective tariffs and promised to raise the tariff to the 1828 rate. Is it any wonder why tensions in the South were elevated with the election of Lincoln?

            B.  The Misrepresentation of Nullification with respect to Slavery

One of the biggest criticisms is that that Nullification was asserted for the purpose of perpetuating slavery. The record, however, is absolutely clear on this issue. Frustration of the federal Fugitive Slave Law was accomplished by nullification efforts all over the North and because of the success of those efforts, slaves were encouraged to seek their freedom and the movement to end slavery was able to gain momentum.

Although the concepts of States’ Rights and Nullification are historically associated with the South, they were employed by northern states to resist the Fugitive Slave Act of 1850. While the southern states defied the federal government by refusing to accept the abominable tariffs, the northern states defied the government by refusing to enforce the Fugitive Slave Act, which they believed was an unconstitutional commandeering of the state and at its core, a repugnant law that offended their conscience. Under this law, stringent measures were imposed to catch runaway slaves. These included:

  • Penalizing federal officials that did not enforce the law
  • Rewarding federal officials that did enforce law
  • Requiring free citizens to help capture runaway slaves
  • Fining or imprisoning citizens helping runaways escape
  • Prohibiting runaways from testifying on their own behalf in court
  • Denying jury trials to runaways

Special federal commissions, not courts, worked with U.S. marshals to handle runaway cases. Commissioners and marshals who failed to hold captured runaways could be sued, thus compelling them to enforce the law. They received $10 for every runaway delivered to a claimant, but only $5 for cases in which the runaway was freed. This provided a financial incentive to send even free black men and women into slavery. The law not only jeopardized the liberty of every black citizen, but it also infringed on the freedom of white citizens by forcing them to hunt for runaways against their will.

State and local governments openly defied the law:

1).  The legislatures of Maine, Massachusetts, Connecticut, Rhode Island, Michigan, and Wisconsin passed “personal liberty laws” making it nearly impossible to enforce the Fugitive Slave Act in those states.

2).  The Wisconsin Supreme Court declared that the Tenth Amendment protected states from repugnant federal laws like the Fugitive Slave Act, specifically citing the Virginia and Kentucky Resolutions of 1798 as the basis for its opinion.

3).  The Chicago City Council called northern congressmen who supported the act “traitors” like “Benedict Arnold and Judas Iscariot.”

4).  When the U.S. Supreme Court ruled that states could not free federal prisoners convicted of helping runaways, the Wisconsin legislature called “this assumption of jurisdiction by the federal judiciary… an act of undelegated power, void, and of no force…”  (The Wisconsin Supreme Court nullified the Supreme Court’s decision.  See discussion below)

In addition to local governments, the people themselves took matters into their own hands:

1).  In Syracuse, New York, in 1851 a jury effectively nullified the law by acquitting all but one of 26 people who had been arrested for freeing William “Jerry” Henry. Among those 26 persons arrested and tried was a US Senator and the former Governor of NY.  Jerry ultimately escaped to Canada.

2).  When Joshua Glover was captured by U.S. marshals in Milwaukee, Wisconsin, the sheriff supported local opinion by freeing Glover and jailing the marshals; Glover also escaped to Canada.

3).  In Pennsylvania, a mob of free blacks killed a slaveholder attempting to capture a runaway.

4).  Military force was needed to disperse a mass meeting after a black man was apprehended in Detroit.

5).  Throughout Ohio, town meetings branded any northern official who helped enforce the law “an enemy of the human race.”

6).  Other cities and states refused to help enforce the law simply because it was too expensive. Returning one runaway to the South cost the city of Boston $5,000. Boston officials never enforced the law again. All of these acts of defiance and nullification were ironically adopted from principles first introduced and later invoked by southerners.

When Wisconsin residents refused to enforce the Fugitive Slave Law and return escaped slave, Glover, an ensuing series of arrests would give the state Supreme Court the opportunity to use Nullification to proclaim the law’s unconstitutionality. The case would be known as In re Booth.

What has become known as the Booth case is actually a series of decisions from the Wisconsin Supreme Court beginning in 1854 and one from the U.S. Supreme Court,Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These decisions reflect Wisconsin’s attempted nullification of the federal fugitive slave law, the expansion of the state’s rights movement and Wisconsin’s defiance of federal judicial authority. The Wisconsin Supreme Court in Booth unanimously declared the Fugitive Slave Act of 1850 unconstitutional. The U.S. Supreme Court overturned that decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate upholding the fugitive slave law. That mandate has never been filed.

When the U.S. Constitution was drafted, slavery existed in this country. Article IV, Section 2 provided that:  ”No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

Based on this provision, Congress in 1793 passed a law that gave slave owners the power to have a runaway slave arrested in any state and returned.  The law remained intact until 1850, by which time the moral sentiment of the North against slavery had become aroused; the Liberty Party had been organized, the underground railroad had flourished and many northern men and women refused to act as slave catchers or assist in perpetuating slavery. Because of the increasing difficulty the slave holders faced in reclaiming runaway slaves, Congress passed the Fugitive Slave Act of 1850. The law placed the mechanism for capturing runaway slaves in the hands of federal officers. It provided that these cases would be heard by a federal judge or court commissioner and allowed the slave owner to prove the debt owed by the slave but precluded testimony from the fugitive entirely. The new law also increased the penalties for resistance and for concealment of fugitives.

Although it was intended as a compromise, the new law actually fueled the flames of anti-slavery sentiment and from 1854 to 1861, Wisconsin politics was dominated by the question of whether the state had to defer to the federal government’s efforts to enforce the Fugitive Slave Act.

In the spring of 1852, a slave named Joshua Glover escaped from a Missouri plantation and made his way to Racine, where he found work at a sawmill. Two years later, his owner tracked him down and had him apprehended by federal marshals under the Fugitive Slave Act. Glover was held in the Milwaukee County Jail pending a hearing.  When Sherman M. Booth, editor of the Milwaukee abolitionist newspaper, The Free Democrat, heard of the capture, he is said to have mounted his horse and galloped through the streets of Milwaukee shouting: “Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at 2:00!” Booth’s lawyers then persuaded a Milwaukee County Court judge to issue a writ of habeas corpus (a judicial order freeing Booth) directing the U.S. marshal to bring Glover before the county judge and justify his detention

Before the hearing could take place, Booth appointed a committee to prevent the “kidnapping” of Glover by the federal authorities. After Booth made a fiery speech, a mob led by one of the other committeemen, John Ryecraft, battered down the jail doors, freed Glover and spirited him away to Canada.  Federal authorities charged Booth with assisting Glover’s escape. Booth was released on bail but two months later, at his own request, he was delivered to the U.S. Marshal. Booth’s surrender was calculated to bring a test case in the state courts challenging the constitutionality of the fugitive slave law. On the day after the surrender, Booth’s attorney, Byron Paine (later a justice of the Wisconsin Supreme Court), successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus. At that hearing, Smith asked the parties to address the constitutionality of the fugitive slave law. Paine, citing Thomas Jefferson’s writings, said states have the right to impose their authority when their sovereign rights are violated by the federal government. Paine argued that Congress had no authority to make laws based on the fugitive slave clause of the Constitution and that the Act of 1850 was unconstitutional because it denied a trial by jury and vested judicial powers in court commissioners. On June 7, 1854, Smith ordered that Booth be released, finding the warrant of commitment defective and the fugitive slave law unconstitutional.

When the US Attorney General learned of the decision, he appealed it to the US Supreme Court. The case –  Ableman v. Booth – was heard in 1859, just one year before slavery would a major issue of the presidential election.  In that case, the Supreme Court upheld the constitutionality of the Law and further held that Wisconsin did not have the power to nullify the Fugitive Slave Act.  In a decision written by Justice Roger Taney (who also wrote the infamous Dred Scott decision): “No power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” [pg. 62]

The justices of the Wisconsin Supreme Court justices were then instructed to file the U.S. Supreme Court’s mandates reversing the judgments and dismissals in the Booth case. Although there had been some changes to the bench in the years since the case was heard, the majority opinion was that the federal court had no power to review the judgments of the state Supreme Court and Wisconsin was well within its right to nullify the Fugitive Slave Law, and so the justices voted not to file the mandates in the Booth cases. The Wisconsin Supreme Court would write: “The Supreme Court said that the States cannot, therefore, be compelled to enforce the Fugitive Slave Act. We regard the action of the Supreme Court of the US, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the Constitution. This assumption of jurisdiction by the federal judiciary is an act of undelegated power, and therefore without authority, void, and of no force.”

[Booth was subsequently arrested by federal agents and placed in a state penitentiary. Since Wisconsin did not assert its duty to interpose and prevent federal agents from such conduct, Booth remained in custody. But only a few short months later, on the eve of Lincoln’s inauguration, President Buchanan would pardon him].

Wisconsin successfully nullified the Fugitive Slave Law in its state.  It did not back down. It did not reverse the judgment on Booth, as the US Supreme Court instructed. Although the Civil War would start in less than two years and the affections that bound North and South together would be strained, the state of Wisconsin maintained its position on the constitutionality of the Fugitive Slave Law and held to its conviction that it was unenforceable in its borders.

Contrary to the critics’ position that Nullification was used to promote and support slavery, the only real time we saw it used with regard to slavery is in an effort to discourage enforcement of laws to return slaves that have successfully escaped and to therefore encourage their escape to the north.

The critics of Nullification go even further and try to discredit Nullification by blaming it, for example, for Arkansas’ refusal to integrate their schools following the Brown v. Board of Education decision in 1953 which demanded that school segregation be ended immediately.  Martin Luther King Jr. himself vilified Nullification in his “I Have a Dream” speech in Washington DC in 1963.  He said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by their character.  I have a dream today. I have a dream that one day down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; that one day right down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

To condemn Nullification for one bad application would require that we also condemn the Supreme Court because of its Dred Scott decision.  Besides, there are many constitutional scholars who don’t wonder if the Brown decision was decided using an interpretation that itself was unconstitutional. While it should be universally agreed that purposeful segregation of the races based on the assumption that blacks are an inferior race had to end. It was a shameful policy that has rocked our moral conscience as a nation. But, to use the very same criteria (race), especially as in the bussing cases, to remedy for the past sins of segregation has been challenged as an unconstitutional exercise of judicial power. A violation of the 14th Amendment is a violation of the 14th Amendment, whether it’s used for bad or for good.

C.  Misrepresentation because of Political Correctness  

There is nothing more harmful to liberty and nothing more harmful in a free society than to shut down ideas and avenues of redress under the pretext that it “is offensive” to certain groups of people. Certainly, one of the oldest tricks in the book is the one whereby supporters of a centralized energetic government demonize the message that empowers its people. And that’s what has happened with Nullification and the Civil Rights Movement.

Martin Luther King Jr. used the words Nullification and Interposition for effect and to elicit passions that evoke memories of slavery and efforts by the South to deny them Civil Rights. Had he been honest, he would have also praised Nullification for providing the North with the reason not to enforce the Fugitive Slave Laws and condemning runaway slaves to a life of continued forced servitude as nothing more than personal property.

It was Arkansas’ actions in response to the Brown v. Board of Education decision that led to the Cooper v. Aaron case and appeared to give Nullification opponents ammunition. In the wake of the Brown case, the school district of Little Rock, Arkansas formulated a plan to desegregate its schools but most other school districts in the state opposed the Supreme Court’s rulings and attempted to find ways to perpetuate segregation. As a result, the Arkansas state legislature amended the state constitution to oppose desegregation and then passed a law relieving children from mandatory attendance at integrated schools. The school board of Little Rock, however, ignored then mandate and continued on with the desegregation program. In fact, it was this decision that led to the incident known as the “Little Rock Nine” incident (or the “Little Rock School Crisis of 1957″).  In 1957, the NAACP enrolled nine black children at Little Rock Central High. Arkansas’ Governor Orval Faubus energetically opposed the desegregation plan and even deployed the Arkansas National Guard to block the entrance to the school. On September 9, the Little Rock School District issued a statement condemning the governor’s deployment of soldiers to the school, and on September 24, President Eisenhower ordered the 101st Airborne Division of the US Army to Little Rock and federalized the entire 10,000-member Arkansas National Guard, taking it out of the hands of Faubus. The crisis was over and the nine students were finally permitted to attend Little Rock Central.

On February 20, 1958, five months after the integration crisis, members of the Arkansas state school board (along with the Superintendent of Schools) filed suit in the US District Court for the Eastern District of Arkansas, urging suspension of Little Rock’s plan of desegregation. They alleged that public hostility to desegregation and that the opposition of Governor Faubus and the state legislature created an intolerable and chaotic situation. The relief the plaintiffs requested was for the black 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 would make its way to the Supreme Court later that same year.

In that case, Cooper v. Aaron, the Supreme Court, in a unanimous decision in Cooper  v. Aaron, noted that although the school board had apparently acted in good faith, it was nonetheless constitutionally impermissible under the Equal Protection Clause to maintain law and order by depriving the black students their equal rights under the law.  It began its analysis by noting that Justice John Marshall, in 1803 in the landmark case of  Marbury v. Madison, declared that “It is emphatically the province and duty of the judicial department to say what the law is.” The Marbury decision established the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.  The Cooper opinion then went on to state: “The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land under Article VI of the Constitution (the Supremacy Clause) which therefore makes it of binding effect on the States.”  Furthermore, the Court reasoned, since every state official takes an oath to support the US Constitution, they are bound to solemnly support the Constitution and such rulings. The Court then rejected the notion that a state has no duty to obey a federal court order that it believes to be unconstitutional.  In other words, the Court rejected nullification and interposition. “In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

It is worth noting that the Framers and Founding Fathers never assigned the Supreme Court the responsibility that Justice Marshall assumed for the Court in Marbury v. Madison – that it shall be the sole province of the Supreme Court to declare what the Constitution says and means. It is a power that the Court, a branch of the federal government, assigned and delegated to itself. And that decision has never been challenged, even though the Federalist Papers speak differently of the function of the federal judiciary.

Furthermore, the Supreme Court has no more the right to declare Nullification an improper check and balance on the power of the federal government as it does on the Separation of Powers doctrine or the President’s Veto power.

Some legal scholars have publicly criticized the Court’s rationale in Cooper. Perhaps the most famous criticism comes from former US Attorney General (under Ronald Reagan) and brilliant constitutional attorney, Edwin Meese III, in his law review article entitled The Law of the Constitution. In that article, Meese accused the Supreme Court of taking too much power for itself by setting itself up as the sole institution responsible for the interpretation of the Constitution. He wrote that while judicial interpretation of the Constitution binds the parties of the case, it should not establish a supreme law of the land that must be accepted by all persons.

             D.  Misrepresentation by an Incorrect Assessment of the Civil War  

Perhaps one of the most popular arguments given by the opponents of Nullification is that the Civil War settled the issue.

Of course, this is a preposterous assertion. Core constitutional principles weren’t destroyed, even though President Lincoln did everything in his power to destroy the Constitution itself. Just because a constitutional government was suspended and the proper role of the federal government was temporarily derailed does not mean our system was abandoned. The US Constitution was never rejected and supplanted by another. Our supreme law was merely modified by a few amendments and the southern states were punished (severely) for their audacity in seceding.

Opponents allege that it was the Southern States and their seditious spirit (ie, embracing Nullification) that led to the Civil War. It seems that it never occurred to them to read the Inaugural Address of Jefferson Davis, President of the Confederate States of America, where he talked about their pure allegiance to the spirit of the American Revolution and the principles embodied in the Declaration of Independence.

As Thomas Jefferson so aptly explained, the power of Nullification is that it accomplishes peacefully what rebellion would accomplish forcibly..  and that is a rejection of a government that refuses to abide by its constitutional bounds.  Nullification is a gentle nudge, by the States, to put the federal government on notice that it has violated the terms and spirit of the Constitution, and therefore putting the ball back in its court so it can take the proper steps and remedy the situation. That’s why Jefferson, in fact, one of the reasons he termed it the “Rigthful Remedy.”  Nullification doesn’t lead to Secession, it prevents it.  Only when the federal government refuses to abide by the boundaries the people have entrusted it do the People have to consider more extreme measures.

In his book Is Davis a Traitor, Albert Taylor Bledsoe writes: “The subjugation of the Southern States and their acceptance of the terms dictated (forced upon them) by the North in the War of Coercion may be considered as having shifted the Federal Government from the basis of compact to that of conquest, and thereby extinguished every claim to the right of secession for the future.”

Whether one believes we have been conquered by our own government determines what they believe about Nullification and Secession. Whether one believes Bledsoe’s assessment or not speaks volumes about whether that person cherishes liberty.

Our Declaration of Independence proclaims that in America, individual liberty is grounded firmly in Natural Law and God’s law. To secure that foundation, our country adopted the government philosophy of John Locke which says that people have rights preexisting government, government exists to protect those rights, and government should not stand in the way of its own dissolution should it violate those rights. This is the express message of the Declaration.

It’s obvious that in the wake of the Civil War, the nature of government has fundamentally changed and that the relationship between itself and the people has been transformed. But while there are those who accept the notion that with the War of Coercion the government took a stand against the rights of the individual (and won) and who believe we must submit to this new system, the question really boils down to this….  Did the government have the right to coerce the States and the People to fight a war for ITS own preservation and domination?  Did it have the right to subjugate the Southern States against their will?  NO, it did not. Nowhere did the government have the right to act as it did and therefore the consequences are NULL and VOID.

Those who support Nullification still believe in the fundamental truth that people have rights that preexist government and that government exists primarily to protect our rights from those that do not respect them and NOT to control us and coerce us into serving its goals.

As Jefferson Davis indeed predicted, the northern victors would succeed in teaching history which vindicates their efforts and violations. And so, through our public schools, the great majority of books, government opinion, and even the significance of the Lincoln Memorial on the national mall, we are led to believe that Abraham Lincoln was our most important and beloved president. The reality, according to historian Larry Tagg in his book  The Unpopular Mr. Lincoln: America’s Most Reviled President, is that he was the most hated of all American presidents during his lifetime. He was so thoroughly hated in the North (especially in New York) that the New York Times editorialized a wish that he would be assassinated. Thomas DiLorenzo, who has done extensive research on Lincoln, said the hatred was perfectly understandable.  Lincoln committed so many constitutional violations that even Congress’ collective head was spinning. The Congressional record is full of discussion as to the extent of his violations. He illegally suspended Habeas Corpus, imprisoned tens of thousands of Northern political critics without due process, and shut down over 300 opposition newspapers. If they still tried to use the mail to distribute news, he called out the army, seized their property, and prevented their access to the US mail. He enforced military conscription with the murder of hundreds of New York City draft protesters in 1863 and with the mass execution of deserters from his army. He deported a congressional critic (Democratic Congressman Clement Vallandigham of Ohio); confiscated firearms; and issued an arrest warrant for the Chief Justice of the Supreme Court (Roger Taney) when he issued an opinion that only Congress could legally suspend Habeas Corpus. He blocked southern ports without authorization of Congress (which is far and above the type of action necessary to quash a rebellion; it’s an act of war). Most of all, he waged an unnecessary war, not authorized by Congress, that resulted in the death of 1 in every 4 young men (3.4% of the population at the time; 3.4% of today’s population would be approximately 8.5 million Americans). The real legacy of the Civil War, is Lincoln’s “false virtue” – that he felt justified in trampling all over the Declaration of Independence, the US Constitution, and the sovereign rights of the states in order to do what he personally believed was necessary.  To say Lincoln saved the Union by waging the Civil War is like saying a man saved his marriage by beating his wife into submission.

For those who believe that the Civil War settled the question of whether Nullification is a proper remedy, then I ask this: How is it that a constitutional remedy can be destroyed by unconstitutional conduct by the President of the United States and the US Congress?  How the essential principles of self-preservation and self-government proclaimed in the Declaration of Independence be destroyed by the very institution that that document assured would be established to protect those rights?  How can a liberty-minded people buy into this fatal argument that it is OK for the US government, a creature of the People themselves, to take a hostile position with respect to the Declaration of Independence and deny them the promise “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  How is it that a nation so singular in its purpose when it fought the Revolutionary War (to secede from an oppressive government, in order to live free and govern themselves accordingly) has deteriorated to the point that its people can no longer make the essential connection between their Constitution and the principles proclaimed in the Declaration which underlie it?  It was all about liberty and freedom – the condition of independence (liberty) and the right to go about our business without being controlled or subjugated (freedom). In explaining why it was so important for our founding colonists to stand up against the growing tyranny of the British King and Parliament, Mercy Otis Warren perhaps articulated it best when he said, in 1774, “in order to preserve inviolate, and to convey to their children the inherent rights of men, conferred on all by the God of nature, and the privileges of Englishmen claimed by Americans from the sacred sanction of compacts.” And so the Declaration proclaimed the supremacy of Man (“to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle him”) and outlined the purpose of government (to secure and protect his rights). By the very words of the Declaration, man has inalienable rights that no government can take away and he has the right to defend them and preserve them. That’s why the document provides that man can “alter or abolish” his government when it becomes destructive of his rights and the free exercise thereof. In other words, the rights of man would always trump the power of government; and while man has the right of self-preservation, the government has no such right.

The Constitution merely designed a government according to the moral dictates of the Declaration. That’s why it was limited in scope and permeated with so many checks and balances in order that it remain so. Thomas Paine wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” Rights of Man (1791-1792)

The Supreme Court, in one of its earliest cases – Vanhorne’s Lessee v. Dorance (1795), which addressed a property matter as between the states of Pennsylvania and Connecticut – Judge Paterson explained: “What is a Constitution?  It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.  The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…”  [Indeed, the unprecedented task confronting the Court in its infancy was that of interpreting our new written constitution so as not to disturb the settled, existing framework of the document as written, intended, and understood by the States when they signed it. That task was short-lived].

We are NOT free when we wait for the government or for the Supreme Court to tell us what our rights are or tell us that avenues that were once open to us to restrain the power and influence of government over our once-free lives are no longer available (because they threaten the power of government).

Again, the government was instituted to protect that rights of self-government and self-determination for us; not to destroy them. And if we believe that we have the right to define our government and reclaim the rights that We the People are endowed with that a government is trying to take away or has taken away, then we have to believe in Nullification. It is the rightful constitutional remedy that restores the proper balance of sovereign power – peacefully.

Unfortunately, all too often the government is more concerned in controlling the governed rather than controlling itself, and so the responsibility falls to us to control it.

E.  The Misrepresentation that the Courts Have the Final Word

In 1958, in the case Cooper v. Aaron, the Supreme Court rejected the doctrines of Nullification and Interposition, asserting that states have no right to refuse to enforce federal law (even when that law is one created from the bench rather than the legislature). A person who is brainwashed into believing that the federal judiciary was established to be the one final tribunal to declare what the Constitution means and which laws are constitutional and therefore bind all states and persons to those decisions has not done his or her homework. That person is a sheep.. the kind of citizen that an all-powerful government treasures and hopes to multiply.

Our Founders had something quite different in mind. Sure, Founders like Alexander Hamilton believed it best that one tribunal speak on constitutionality – for consistency. But that voice was only to render an opinion and not to have the power of supremacy.

With respect to the Founders’ intentions for the federal judiciary (as an independent branch), I tend to follow the view that Hamilton set forth in Federalist No. 78:

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

      This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter….. Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

      Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

       There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

       If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

      This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

      But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body.

      If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty… ”     [Then Hamilton goes on to explain that judges of the federal judiciary will be insulted from the passions of temporary political whims or majorities who want the legislature to act in violation of the Constitution by account of their life tenure.  That is what, in his opinion, would keep the federal judiciary as the faithful check on the other branches by reviewing their actions for constitutionality and rendering constitutional ‘opinions’].

The intended role of the judiciary, both generally and specifically, was to serve as the “bulwarks of a limited constitution against legislative encroachments.” (Federalist No. 78). The Founders believed that the judges would “regulate their decisions” by the word and spirit of the Constitution for the preservation of that limited government which was so necessary for maximum liberty. As the “faithful guardians of the Constitution,” the judges were expected to resist any political effort to depart from its literal provisions. The text of the Constitution and the original intention of those who framed and ratified it would be the judicial standard in giving it effect and preserving its integrity.

The Court was intended to strictly interpret and offer an opinion as to the meaning of the Constitution, as well as the legality of the actions of the Executive and Legislative branches. It was intended to protect the People from unjust laws and oppressive conduct by their government. As James Madison explained, the Constitution was written the way it was in order “to first enable the government to control the governed and in the next place, to oblige it to control itself.” An independent, constitutionally-bound judiciary was the oversight which was created to remind the other branches to control itself.

From what I understand from the Federalist Papers and the intent of the Founders, the power to interpret the Constitution should reside with the federal judiciary in order that there be one tribunal that speaks with one voice, rather than opinions all over the place by each of the states. But the Supreme Court was not intended to do anymore than offer “an opinion” as to the meaning of a particular provision of the Constitution or as to the constitutionality of a particular piece of legislation. The Court was supposed to interpret strictly in accordance to the plain meaning and the spirit of the ratifying conventions. Once the Court rendered an “opinion,” it was the understanding that the other branches would respond accordingly, ie, Congress would repeal a bill that was passed without proper and express authority, or if it refused to do so, the President would veto it (under the checks and balances). States would refuse to enact legislation that violated the Supremacy Clause. In other words, how the other branches responded to the ‘opinion” was their concern, but as to the separation of powers between the legislative and executive branches (together with the state’s direct voice in the Senate), and then the voice of the States under the 10th Amendment and the people’s power at the ballot box, in the end the only actions of the government that would be enforced at the state level (ie, on the People) would be those that adhere to the language and spirit of the Constitution.

Founders like Thomas Jefferson and James Madison quickly saw the threat the federal judiciary posed to a constitutionally-limited government. It’s one of reasons why Jefferson, when discussing the possible remedies available when the federal government oversteps its constitutional boundaries, expressly rejected the federal courts. He strongly advised the States and the People NOT to trust the judiciary with their precious liberties. Again, he expressed the opinion that the States were the best and most reliable guardians of that precious jewel and that’s why Nullification was the “Rightful Remedy.”

Here are some of the warnings and comments he made about the federal judiciary (again, being mindful that he was witnessing firsthand how the Supreme Court was actively re-defining the Constitution and undermining its guarantees of individual liberty):

To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”   [in a letter to William C. Jarvis, 1820]

The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”    [in a letter to Charles Hammond, August 18, 1821]

The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.”   [in a letter to Thomas Ritchie, December 1820]

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”    [in a letter to W. H. Torrance, 1815]

The Constitution meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”    [in a letter to Abigail Adams, 1804]

The true barriers of our liberty are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed.”   [in a letter to L. C. Destutt de Tracy, 1811]

The powers of the Supreme Court were fundamentally transformed – enlarged – by the Court itself in 1803 in the case Marbury v. Madison. In the opinion he wrote in that landmark case, Chief Justice Marshall declared that the Court had much more power than merely offering an opinion to the other branches. Not only would the Court have power to render opinions to the other branches and to “put the States and the People on notice,” it would also have enforcement power. It would be the final word on matters of the Constitution to which all sovereigns would be bound… (Unfortunately, the Court is part of the federal government and not necessarily a fair umpire for the parties to the social compact that is the US Constitution. The decision, to me, seems to contradict that which Hamilton sought to assure the States in Federalist No. 78 – that the judiciary would not be superior to the other branches such that its decisions would not be subject to checks from the other branches (or the States). And it seems to contradict what the states found so troubling with a proposed federal government that had stronger powers than the Continental Congress under the Articles – that the federal government would have the tendency to become centralized, at the expense of the States, and would have the exclusive domain to define what its powers are.

If we had remained with that pre-Marshall definition of the Court’s power, then the States would have clearly been able to check the opinion of the federal judiciary by either concurring with it and abiding happily by the decision (relying on their understanding of the Constitution through the Federalist Papers and their ratification debates) or disagreeing and thus ignoring it.

Marbury is not entirely a bad decision. Strict constitutionalists will agree that parts of Marshall’s analysis are spot on.

The facts of the case, in and of themselves, give support to the skepticism that Thomas Jefferson had of the federal judiciary and its capacity to align itself with evil-intentioned government officials rather than act as a neutral and constitutionally-restrained independent tribunal. The case arose as John Adams tried to stack the federal courts with Federalists in his final hours as President in a move to frustrate the incoming Thomas Jefferson (who, after the attempt to establish a Federal Bank and the seeming concurrence of many Federalists with Hamilton’s position of “implied government powers). Adams made the commissions and handed them to his Secretary of State to deliver them. All were delivered except for a few, one of which was the appointment for William Marbury. The appointments were made pursuant to the Judiciary Act of 1801, which Adams had Congress pass in a specific attempt to stack the courts.

After the Constitution was ratified, the first Congress passed the Judiciary Act of 1789 which established the federal court system. It established a Supreme Court (with a Chief Justice and 5 associate justices), three circuit courts, and 13 district courts (one district court for each of the 13 states). In November 1800, Adams lost his bid for re-election. Jefferson was elected President. Turns out the Congress changed hands as well. The Federalists, who had been in power, lost control of the House and Senate. But for those few months before Jefferson and the new Congress took office, the Federalists still had control. As I mentioned above, in order to frustrate his nemesis and his administration, Adams persuaded Congress to pass a new law – the Judiciary Act of 1801 – which would increase the number of judges sitting on the federal benches and therefore give him the opportunity to appoint several new federal (Federalist) judges. Section 13 of the Judicary Act provided: :The Supreme Court shall have power to issue writs of prohibition to the district courts and writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States.”

Adams appointed about 39 new judges pursuant to the Judiciary Act. His Secretary of State delivered them successfully. However, he failed to deliver the commissions of 3 new justices before Adams’ term of office ended. Again, one of those commissions was to go to William Marbury. When Jefferson took office in March 1801 and learned of Adams’ attempt to pack the courts with Federalists, as well as the failure to successfully deliver the 3 commissions, he instructed his Secretary of State, James Madison, to refuse the appointments. Marbury then applied to the Supreme Court for the remedy offered him under Section 13 of the Judiciary Act.

The case asked 3 questions: (1) Does Marbury have a right to the appointment? (2) Does the law afford him a remedy? and (3) Is the law that affords that remedy constitutional? Chief Justice Marshall concluded that Marbury had a right to the appointment and that the Judiciary Act offered him a remedy to assert that right. But the case boiled down to the question of whether Section 13 conflicted with the Constitution, and he concluded that it did. It improperly enlarged the original jurisdiction of the Supreme Court. Article III established original jurisdiction and Congress does not have the power to alter the Constitution (only the amendment process can do that).

In reaching the decision that Section 13 is unenforceable, Justice Marshall articulated several principles that re-enforce the notion of limited government, social compact, original intent, and yes, nullification. He wrote:

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

      That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

      This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

      The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

     Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

     If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

      Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution and is consequently to be considered by this Court as one of the fundamental principles of our society. the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

 From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.  The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to that Constitution is void and that courts, as well as other departments, are bound by that instrument.

      If the courts aren’t bound by the phraseology of the Constitution, why does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 

      ‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.’

      Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

      It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. [pp. 176-182]

The problem arose when Marshall announced that the Court would possess the power of deciding upon the “operation” of the law being scrutinized. The Court would made the final decision and all branches, all state courts, etc would be bound by its decision.

The problem with believing the indoctrination that when the Supreme Court speaks, the issue of supremacy is determined without question is that it compromises our notion of Liberty and our fundamental belief that our government is a creature of the People, constrained by the Rule of Law.

The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, it will, without a shadow of a doubt, continue to grow, regardless of elections, the separation of powers, and the various checks and balances. There should be no more powerful indictment of this statement than the Supreme Court’s approval of Obamacare and its ringing endorsement of an unlimited taxing power.

Part 4: Why Nullification? 

The TRUTH about Nullification is that it is legitimate and is the only way to effect a meaningful check on the federal government when the executive, legislative, and judicial branches unite on an incorrect interpretation of the Constitution and threaten the independence of the States and the reserved rights of the People. The federal government CANNOT be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, as Madison and Jefferson warned in 1798-99, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power. Nullification has always been available to push the government back within the boundaries of the Constitution but for too long, those hostile to the Constitution have insinuated – FALSELY – that the doctrine was the reason for the Civil War and for segregation, thereby trying to use shame to invalidate it.

We should take a cue from Patrick Henry. When others were celebrating the Constitution and rejoicing that a more effective compact was created, Henry urged them to cool their heads and take a step back and look carefully at the document they were asked to ratify.  It was his opinion that the government created by the Constitution would tend to concentrate power, strip power from the states, and become no better than England’s monarchy (“it squints toward monarchy”).  He urged Virginia to reject the Constitution. He reminded the delegates that trade, power, and security should not be the first concerns on their mind.  He said the proper inquiry should be “how your liberties can be better secured, for liberty ought to be the direct end of your government.”

On that first day of the Virginia Ratifying Convention, June 5, 1788, Patrick Henry addressed the delegates with these words:

Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take everything else!  Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.   

       When the American spirit was in its youth, the language of America was different..  Liberty, sir, was then the primary object. We are descended from a people whose government was founded on liberty: our glorious forefathers of Great Britain made liberty the foundation of everything. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British ancestors: by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty? I trust, sir, our political hemisphere will ever direct their operations to the security of those objects.”

The jury is still out on this thing we call the Great American Experiment. We separated from Great Britain when we insisted on governing ourselves consistent without our own values. Those values were articulated in the Declaration of Independence. Contrary to the “divine right of Kings” which was the system respected in Britain, the American colonies would establish a government “of the people, by the people, and FOR the people.” It would go one step further.. it would establish a government whose powers were derived from the people themselves (so that the people could always take them back when they were fed up with that government). While the British people had to stand up for their rights many times, Americans have never done so since the Revolutionary War. The British protested and demanded that the King respect their rights in 1100 (resulting in the 1100 Charter of Liberties), in 1215 (the Magna Carta or “Great Charter”), in 1628 (the Petition of Right of 1628), in 1641 (The Grand Remonstrances of 1641), in 1679 (the Habeas Corpus Act), and finally in 1689 (English Bill of Rights of 1689).  [The Grand Remonstrances and The English Bill of Rights, like our Declaration of Independence, set out lists of grievances against the King for usurpations of the rights that were proclaimed in the earlier charters]. The interesting thing about history of the British people in asserting their rights and demanding restraint from their government is that each time they did so, they were able to secure greater freedom. We can take a lesson from British history. There is another great distinction between the British and our system. When the Kings signed those charters, they often did so very reluctantly. For example, almost immediately after  King John (the infamous King John of the Robin Hood legend) signed the Magna Carta, he ignored it. It was ignored on and off until the 17th century. The point is that the rights of the people were enjoyed at the mercy of the King. There was no meaningful way to enforce the charters. Parliament tried to, but as with King Charles I (son of King James I, who granted the charters to the Pilgrims and Puritans to settle in America), when Parliament tried to force his hand, he turned around and dissolved it. Our Founding Fathers intended that our Constitution and Bill of Rights would be stand the test of time, guarantee the proper relationship between the People and government, and not jeopardize the rights and liberties of the people. That’s why they divided power among two equal sovereigns (power to check power) and why they included so many checks and balances. To deny Nullification is a dangerous decision. To deny it is to: (i) deny the wisdom of our Founders; (ii) trust your rights to a government which is growing more hostile to them by the day; and (iii) submit to the notion that government is capable of restraining itself and capable of divesting itself of all the unconstitutional powers it has already assumed and repealing such laws it has passed.

Liberty must always come first. Liberty is a gift, as KrisAnne Hall says, that we must pay forward. We don’t pay it forward by not second-guessing the actions of the federal government, especially when we know it likes to enlarge its powers at every chance.  We don’t pay it forward by accepting the government’s version that constitutional remedies that were put in place by our Founders to preserve the rights on which this country are founded are no longer valid. We pay it forward by preserving it. We do that by using every option we have to limit the intrusion of government in our lives and over our property. Our Constitution is not the living, breathing document that the progressives and federal judges claim it to be, for if that is the case, it can be twisted so completely as to destroy our understanding of it.  The only thing that is living and breathing is us, the citizens of the United States who have inherited a precious gift of freedom to live our lives and raise our families. And so let’s use the common sense and spark of brilliance that God so endowed us with when he also endowed us with free will and inherent rights.

References:

Cooper v. Aaron, 358 U.S. 1 (1958).  http://supreme.justia.com/cases/federal/us/358/1/case.html

Marbury v. Madison, 1 Cranch 137, 5 U. S. 177 (1803)

Ableman v. Booth, 62 U.S. 506 (1858). http://supreme.justia.com/cases/federal/us/62/506/case.html

In re Booth, 3 Wis. 1 (1854). http://www.wicourts.gov/courts/supreme/docs/famouscases01.pdf

Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795).  http://press-pubs.uchicago.edu/founders/documents/v1ch16s24.html

Robert Lowry Clinton, “The Supreme Court Before John Marshall,” Supreme Court Historical Society.  Referenced at: http://www.supremecourthistory.org/publications/the-supreme-court-before-john-marshall/

Walter Coffey, “Nullifying the Fugitive Slave Law,” February 3, 2013.  Referenced at: http://waltercoffey.wordpress.com/2013/02/03/nullifying-the-fugitive-slave-act/

Federalist Papers No. 33 – http://www.constitution.org/fed/federa33.htm

The Kentucky Resolves of 1799 (Thomas Jefferson) –  http://avalon.law.yale.edu/18th_century/kenres.asp

The Virginia Resolves of 1798 (James Madison) –  http://avalon.law.yale.edu/18th_century/virres.asp

Edwin Meese III, “The Law of the Constitution,” October 21, 1986  (speech transcript) – http://www.justice.gov/ag/aghistory/meese/meese-speeches.html

Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788 – http://www.constitution.org/rc/rat_va_04.htm#henry-01

Thomas DiLorenzo, “More on the Myth of Lincoln, Secession and the ‘Civil War,”  The Daily Bell, June 2, 2013.  Referenced at:  http://www.thedailybell.com/29156/Thomas-DiLorenzo-More-on-the-Myth-of-Lincoln-Secession-and-the-Civil-War

Full text of “American patriotism: speeches, letters, and other papers which illustrate the foundation, the development, the preservation of the United States of America”  – http://www.archive.org/stream/patriotismam00peabrich/patriotismam00peabrich_djvu.txt

Nullify Now! Coming to Raleigh, NC

Nullification - Tenth Amendment language    by Diane Rufino, May 27, 2013
The NC Tenth Amendment Center is organizing a Nullify Now! Rally in Raleigh this fall. Nullify Now! is a national tour, sponsored by the Tenth Amendment Center and Foundation for a Free Society, to educate and activate Americans on the Jeffersonian principle of Nullification. Nullification, simply put, is the right of the state, under the Tenth Amendment and Supremacy Clause, to reject, nullify, and refuse to enforce unconstitutional federal acts – from all three branches!!  The Raleigh event will be in September or October, depending upon the venue that is chosen. We want to start getting the word out now and ask that people share the information with as many people and groups as possible. There is perhaps nothing more important in the defense of liberty in our current precarious times than the education of ordinary Americans and state officials on the topic of Nullification. And given the hostility of our current leadership in the state legislature to states’ rights movements and the general reluctance in both houses to stand up to unconstitutional federal action, the time is now to begin that education.  Nullify Now.

The event capitalizes on the best-selling book “Nullification: How to Resist Federal Tyranny in the 21st Century,” by historian Thomas Woods.  Thanks to this important contribution by Mr. Woods, the doctrine of nullification, a founding principle, is being re-introduced to Americans and being revived all over the country. Its power and significance is ever more clear now that our own government has become a source of tyranny and oppression. Thomas Woods is a Senior Fellow at the Mises Institute and the author of other best-sellers, such as “Meltdown,” and “Rollback.”

In a nutshell, nullification is a constitutional doctrine that acknowledges the division of power between the federal government and the States – ie, the federal nature of our government. The right of each sovereign – the federal government and each state – to jealously guard its powers, and the Supremacy Clause of the US Constitution, which announces that only those laws made in pursuance to the delegated powers to each branch, are supreme and enforceable. In other words, any law that is not made in pursuance of a power expressly delegated to the government or any law made that abuses any constitutional power is null and void and unenforceable. The term “Nullification” was coined by Thomas Jefferson in 1799 in addressing the unconstitutionality of the Alien and Sedition Acts, but the fact is that the doctrine is as deeply rooted in our founding as is the sovereignty of the individual, the inalienability of fundamental liberties, federalism, supremacy, and checks and balances. When the state delegates met in Philadelphia in 1787 to draft a new constitution, their task was to design a common government that would take care of overlapping functions and allow the states to sufficiently unite. James Madison, the major architect of the Convention and of the “new” government, arrived in Philadelphia with quite a different scheme than what he eventually came to embrace. He arrived as a “nationalist,” believing in a strong national government of centralized powers that compromised the sovereignty of the individual states. In fact, his scheme of government would have given the federal government a “negative” (or a veto) on any state action that the government believed was at odds with its interests. But communications with Thomas Jefferson (letters from France) and a stark rejection by an overwhelming majority of delegates helped him understand the wisdom of a “federal” government of limited powers, with the “negative” (or veto) being given to the States who would be the sovereigns most likely to find their powers intruded upon and jeopardized.  Therefore, the legislative branch was designed as a bicameral branch, with one house representing the interests of the states (Senate), which gave the states an immediate opportunity to “negate” or veto an act of the legislature that it believed exceeded the scope of the Constitution and encroached upon the powers of the States.  To further entrench the notion that States retain the bulk of their sovereign powers and therefore have a right to assert them, the Tenth Amendment was proposed by the states and added to the Constitution (otherwise they wouldn’t ratify it).  A state “negative” is what Jefferson would later refer to as “nullification.”

For almost 200 years, the federal government has looked to its constitutional limitations with disdain.  It dared to take the position that the Constitution is one of hidden and implied powers and that government needs what it needs.  And it found a way around those limitations. First the Supreme Court delegated itself the exclusive power to declare what the Constitution means and what powers the government has. Yes, a branch of the government declared it would figure out what powers it has. And from that moment, the exercise of constitutional interpretation evolved into an opportunity for nine unelected individuals to use the bench to re-interpret our Constitution, to transform the intent of government, and to effect societal change (good and bad). Thomas Jefferson warned about this: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”  The questions are these: Will federal politicians act to limit their own power?  Will federal judges limit their power?  The answer to both questions is no.  If  the federal government – all 3 branches – were ever to be the sole and exclusive arbiter of the extent of their own power, that power would always grow. And then we are in a position where the “abuses and usurpations” of government and of human liberties that were levied against King George of England and which justified the fight for our independence are being willingly tolerated here in the United States in the 21st century.  Nothing can be more dangerous since the Constitution is the document that protects our precious rights laid out in the Declaration of Independence. Education on the doctrine of nullification is an education on how the States and the People can constitutionally exercise rights that the government now believes don’t exist.

Critics contend that states have no power to review the constitutionality of federal laws and federal action.

“That’s what the courts are for,” they say.  Those very courts, after the Supreme Court’s pronouncement in Marbury v. Madison (1803) that the federal courts are to interpret the Constitution and judges are limited by its precise wording and intention, have gone way beyond simple constitutional interpretation to make policy from the bench. Those very courts, after the decision in Marbury, have reclassified the Constitution as a “living, breathing document” that is no longer confined to traditional interpretation.  Those same courts have rendered decisions on secession and nullification when those topics aren’t even addressed in the Constitution (federal courts are limited to federal questions – alleged violations of the US Constitution, federal law, or a treaty to which the US is a party).  Those same courts told Dred Scott that black people don’t have any rights under our Declaration or Constitution and approved the indefinite detention of an entire race of citizens in the 1940′s.  No freedom-loving person should be looking at the courts to defend and preserve liberty.

The States, and not the courts, will be the ones to stop unconstitutional federal mandates.  As Thomas Jefferson said, Nullification is the “Rightful Remedy.”

Since September 2010, the Tenth Amendment Center has been hosting a national tour to educate people on this topic and to re-engage them with their Constitution and principles of freedom. The goal is to teach about nullification, its constitutional basis, when it’s been used in history, why the criticisms (ie, “It’s unconstitutional because the Supreme Court has ruled on it” and “The Civil War settled it”) are misinformed, why nullification has become more popular, why Americans need to learn about this doctrine, and its potential. So far, Nullify Now! events have been held in Orlando, Philadelphia, Fort Worth, Los Angeles, Austin, Jacksonville, and Manchester, NH.  Raleigh is the next conference. Our neighbors, South Carolina and Virginia, are both planning them in their states. Future events are also being organized in the Bay Area, CA, Seattle, Las Vegas, Miami, Indianapolis, Chicago, and in the states of Idaho, Wisconsin, and South Dakota.

The opponents of nullification and the mainstream media want Americans to believe that Nullification is an evil doctrine because it was used to support slavery. They want to shame citizens into believing that to support this concept is to be un-American and to somehow endorse the mindset that gave rise to the Civil War. These false arguments are the very reason that the Tenth Amendment Center felt it was necessary to begin a campaign of proper education.  The truth will allow everyone to come to an educated conclusion about nullification.

The Tenth Amendment knows that the topic of Nullification is one clouded in mystery. People want to know more but don’t know where to learn about it truthfully. They want to believe there is a constitutional way for their states to protect their individual rights. In North Carolina, people have heard disturbing comments from their elected state leaders in the past year, such as the following: “Because NC lost the Civil War, we have no right to second-guess the actions and policies of the federal government.”  “The state constitution forbids us to second-guess the federal government. It’s essentially a surrender document that hasn’t been amended.”  “The 10th Amendment no longer means what it used to. That was decided by the Civil War.”  “The US Constitution doesn’t mean what it used to and we really don’t know what it means now.”  ”Nullification is an outdated, racist doctrine that was used for bad and has no legitimacy.” “The legitimacy of Nullification was decided by the Supreme Court.”  Can these statements possibly be correct?  Education will give people of North Carolina the answer. We hope it will also educate those officials who articulated these offensive positions. Fortunately, the Tenth Amendment Center promotes the topic of Nullification from the mouth and pen of Thomas Jefferson and James Madison, our most important of Founding Fathers. Each wrote a critical founding document and therefore are the proper authorities on the subject.

I’m sure liberty-minded folks support the notion that the federal government is one of limited powers and that the Supremacy Clause is a recognition of that limit and not an open invitation to the government to rule supremely on any and all objects it wants to. It can’t be that the federal government has the sole and exclusive authority to declare what the constitution means and how it applies to its branches and powers. The government can’t be sole and exclusive authority on the extent of its own powers. It’s a sure path to tyranny. I agree that the term “Nullification” scares many people and puts them on the offensive because of the crisis of 1832 with John Calhoun and South Carolina and because of the actions of Southern Democratic leaders in the post-Brown v. Board of Education era to repudiate the decision to integrate schools and society. I certainly get it and understand the negative connotations. But the positive exercises (not necessarily summoning the term “nullification”) have far out-weighed them, such as the actions of the Sons of Liberty which so thoroughly frustrated the British agents in the colonies prior to 1776 that such intolerable acts as the Stamp Act and Quartering Acts could never be enforced, the insistence in the Constitutional Convention in 1787 and in the individual state ratifying conventions for a state “negative” on the federal government (the Senate branch and the Tenth Amendment are examples), the nullification of the Fugitive Slave Act by the southern states, the nullification by a state court of Wisconsin (Glover case 1854) of the Fugitive Slave Act (in fact, the WI court said, despite what the US Supreme Court would later say in Dred Scott that Africans were not a class of persons covered by the Constitution or Declaration and hence were not entitled to any protections offered by those documents, including not having a right to bring suit, slaves and former slaves absolutely have a right to bring an action in a court of law), the state opposition to the federal Real ID which has effectively prevented its enforcement, the nullification of the NDAA by Virginia, and the rejection of state health insurance exchanges by 26 states as a way to show their opposition to federal intrusion into a state matter – healthcare, These are just a few instances of nullification (the pushing back of the federal government because it attempted to over-reach its constitutional authority.

There are many things going on at the national level which threaten our precious American freedoms. The War on Terrorism has expanded executive powers and extended the Rules of War to our homeland, thereby clashing with our Bill of Rights. There is talk of limiting the scope of the Second Amendment. The federal taxing power has been expanded by the Obamacare decision to give the government the option of coercing and controlling human conduct in the marketplace and in controlling human behavior in general.  Unelected officials are using the full power of the federal government to target, harass, censor, and intimidate American citizens. And privacy rights have never been so fragile. Everyone has an issue that is important to them, whether it be gun ownership rights, losing control over one’s healthcare because of Obamacare, gay marriage, the expansion of Homeland Security to spy on ordinary Americans, the drones-in-the-sky program, etc.  It may not be my issue or your issue, but collectively they all touch on the one thing that unites us in a common title – that of an “American.”  Americans enjoy a country where the government is tasked first and foremost with protecting their freedom.  When I think of how groups try to shut each other down or marginalize their issues, I can’t help but think of the words that Pastor Martin Niemoller wrote in light of the Nazi Holocaust:

First they came for the communists, and I did not speak out–
because I was not a communist;

Then they came for the socialists, and I did not speak out–
because I was not a socialist;

Then they came for the trade unionists, and I did not speak out–
because I was not a trade unionist;

Then they came for the Jews, and I did not speak out–
because I was not a Jew;

Then they came for me–
and there was no one left to speak out for me.

To minimize the freedom and expression of one group is to minimize freedom and express for all.

Take, for example, the Daily Kos. It accuses conservatives of trying to prevent and thwart social progress in the United States.  It writes that “their weapons of choice are nullification and secession.” It writes that conservatives resort to “these pernicious ideas in order to prevail on such issues as the rights of the unborn and gun rights.” To equate conservatives as enemies of the state is to silence the voice of our Founding Fathers on critical issues that touch on successful government and human liberty. To shut down those who speak for the unborn is to deny the unborn a voice.

The Daily Kos is wrong.  The weapon of choice for conservatives is education.

Please plan to attend the Nullify Now! event in Raleigh this fall. Once the date and venue are set, it will be posted on the NC Tenth Amendment Center website and Facebook page. In the meantime, please help spread the word.

      ***  Diane Rufino is the Deputy Director of the NC Tenth Amendment Center

Why Have African-Americans Abandoned the Republican Party When the Republican Party Has Never Abandoned Them?

          by Diane Rufino

“I have no separate feeling about being an American citizen and colored. I am merely a fragment of the Great Soul that surges within the boundaries. My country, right or wrong.”    –  Zora Neale Hurston.

The history of African-Americans is a history of cruelty and callousness. But then it became a history of triumph and character.  As Frederick Douglass once said, in the beginning we watched how a man was made a slave, but then we saw how a slave was made a man.

When the delegates from twelve of the original thirteen states met in Philadelphia in 1787 (Rhode Island didn’t participate) to draft a new constitution that would “create a more perfect union,” the hope, and indeed the plan, was to abolish slavery. At first, South Carolina, Georgia, and North Carolina refused to join that union if the institution was outlawed, but then North Carolina gave in, noting that it already had a state law which banned the slave trade (although not directly).  But South Carolina and Georgia were steadfast and unyielding.  The plan for a Union would not work without those states.  [1]

Thomas Jefferson said: “There is preparing, I hope, under the auspices of heaven, a way for a total emancipation.” George Washington said, near the end of his life, wrote these words:  “It is among my first wishes to see some plan adopted by which slavery in this country shall be abolished by law. I know of but one way by which this can be done, and that is by legislative action; and so far as my vote can go, it shall not be wanting.”  Patrick Henry said, “We should transmit to posterity our abhorrence of slavery.”  And George Mason, of Virginia, who refused to sign the Constitution because it did not abolish slavery outright, was particularly passionate on the subject: “Slavery is slow poison, which is daily contaminating the minds and morals of our People. Practiced in acts of despotism and cruelty, we become callous to the dictates of humanity, and all the finer feelings of the soul. Taught to regard a part of our own species in the most abject and contemptible degree below us, we lose that idea of the dignity of Man, which the hand of nature had implanted in us, for great and useful purposes…..    Every master of slaves is born a petty tyrant. Slaves bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins, by national calamities.”  [Mason’s prediction about “national calamities” would come to pass in 1861].

A compromise was needed to bring South Carolina and Georgia together with the other states.

In the final draft of the Constitution, as submitted on September 17, 1787, a provision was intentionally included in Article I, respecting the duties of the legislative branch.  In Section 9 (“Limits on Congress”), our drafters included the following prohibition: “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.”  In other words, the government could not ban the importation of slaves for 20 years after the adoption of the Constitution.

The compromise on slavery occurred because the delegates as a whole agreed with Roger Sherman of Connecticut, who made the observation that it was better to let the Southern states import slaves than to part with those states.

As the designated year 1808 approached, those opposed to slavery began making plans for legislation that would ban, or outlaw, the trans-Atlantic slave trade.

In fact, in 1805, the first such piece of legislation was introduced by a senator from Vermont. The following year, in his annual address to Congress, President Thomas Jefferson urged Congress to pass the bill, which it did.  The law was finally passed by both houses of Congress on March 2, 1807, and then signed it into law on March 3, 1807 by Jefferson.  However, given the restriction imposed by Article I, Section 9 of the Constitution, the law would only become effective on January 1, 1808.

The 1807 law ending the importation of slaves did nothing to stop the buying and selling of slaves within the United States and that turned out to be another battle for another day.  This issue of slavery would not be resolved until the end of the Civil War and then with the passage of the 13th Amendment.

The condition of the Negro during the time of slavery here in the United States can be summed up by a sermon delivered in 1808 by Bishop Absalom Jones:

The history of the world shows us, that the deliverance of the children of Israel from their bondage, is not the only instance, in which it has pleased God to appear in behalf of oppressed and distressed nations, as the deliverer of the innocent, and of those who call upon his name. He is as unchangeable in his nature and character, as he is in his wisdom and power. He has seen the affliction of our countrymen, with an eye of pity. He has seen the wicked arts, by which wars have been fomented among the different tribes of the Africans, in order to procure captives, for the purpose of selling them for slaves. He has seen ships fitted out from different ports in Europe and America, and freighted with trinkets to be exchanged for the bodies and souls of men. He has seen the anguish which has taken place, when parents have been torn from their children, and children from their parents, and conveyed, with their hands and feet bound in fetters, on board of ships prepared to receive them. He has seen them thrust in crowds into the holds of those ships, where many of them have perished from the want of air. He has seen such of them as have escaped from that noxious place of confinement, leap into the ocean; with a faint hope of swimming back to their native shore, or a determination to seek early retreat from their impending misery, in a watery grave. He has seen them exposed for sale, like horses and cattle, upon the wharves; or, like bales of goods, in warehouses of West India and American sea ports. He has seen the pangs of separation between members of the same family. He has seen them driven into the sugar; the rice, and the tobacco fields, and compelled to work–in spite of the habits of ease which they derived from the natural fertility of their own country in the open air, beneath a burning sun, with scarcely as much clothing upon them as modesty required. He has seen them faint beneath the pressure of their labors. He has seen them return to their smoky huts in the evening, with nothing to satisfy their hunger but a scanty allowance of roots; and these, cultivated for themselves, on that day only, which God ordained as a day of rest for man and beast. He has seen the neglect with which their masters have treated their immortal souls; not only in withholding religious instruction from them, but, in some instances, depriving them of access to the means of obtaining it. He has seen all the different modes of torture, by means of the whip, the screw, the pincers, and the red hot iron, which have been exercised upon their bodies, by inhuman overseers: overseers, did I say? Yes: but not by these only. Our God has seen masters and mistresses, educated in fashionable life, sometimes take the instruments of torture into their own hands, and, deaf to the cries and shrieks of their agonizing slaves, exceed even their overseers in cruelty. Inhuman wretches! though You have been deaf to their cries and shrieks, they have been heard in Heaven. The ears of Jehovah have been constantly open to them: He has heard the prayers that have ascended from the hearts of his people; and he has, as in the case of his ancient and chosen people the Jews, come down to deliver our suffering country-men from the hands of their oppressors. He came down into the United States, when they declared, in the constitution which they framed in 1788, that the trade in our African fellow-men, should cease in the year 1808.  He came down into the British Parliament, when they passed a law to put an end to the same iniquitous trade in May, 1807.  He came down into the Congress of the United States, the last winter, when they passed a similar law, the operation of which commences on this happy day.”

Bishop Jones delivered that sermon on January 1, 1808, in St. Thomas’s, or the African Episcopal, Church, Philadelphia, in recognition of the legislation that was passed that day by the US Congress to abolish the African slave trade.

By 1820, most of the Founding Fathers were dead and Thomas Jefferson’s party, the Democratic-Republican Party, had become the majority party in Congress, outnumbering the Federalists.  In fact, 1820 is said to be the year which marked the death of the Federalist Party.  With this new Democratic-Republican Party in charge, a change in congressional policy emerged.  At the time, a law that was enacted in 1789, prohibiting slavery in federal territory, was still on the books. In 1820, the Democratic-Republican Congress passed the Missouri Compromise and reversed that earlier policy and thereby permitted slavery in almost half of the federal territories. Several States were subsequently admitted as slave States.  For the first time since the Declaration of Independence and the Constitution, slavery was being officially promoted by congressional policy. Yet, the only way for the Congress to promote slavery was to ignore the principles in the founding documents. As Founding Father and President John Quincy Adams explained:  “The first step of the slaveholder to justify by argument the peculiar institutions of slavery is to deny the self-evident truths of John Quincy Adams the Declaration of Independence. He denies that all men are created equal. He denies that they have inalienable rights.”

Jefferson’s Democratic-Republican Party would lay the foundation for the Democratic Party.  In 1828, the Democratic-Republicans split over the choice of a successor to President James Monroe, and the party faction that supported many of the old Jeffersonian principles, led by Andrew Jackson and Martin Van Buren, became the Democratic Party.  Andrew Jackson is considered our first Democratic president.  Ironically, the Democratic party believed in strict adherence and strict interpretation of the Constitution, as well as limited government and states’ rights, and it opposed a national bank and the concentration of wealth in the hands of a few.  [2]

The Democrats soon became the leading party in Congress and they passed several pro-slavery laws, including the infamous 1850 Fugitive Slave Law.  The Fugitive Slave Law required Northerners to return escaped slaves back into slavery or else pay huge fines. In many instances, the law became little more than an excuse for southern slave hunters to kidnap free blacks in the North and carry them into slavery in the South.

In 1854, the democratically-controlled Congress passed another law which strengthened slavery – the Kansas-Nebraska Act. Even though Democrats in Congress had already expanded the federal territories in which slavery was permitted through their passage of the Missouri Compromise, the compromise retained a ban on slavery in the particular territory that would later become the states of Kansas and Nebraska. But through the Kansas-Nebraska Act, the Democrats were able to repeal that ban and therefore allow slavery to be introduced into parts of the new territory where it previously had been forbidden, thereby increasing the national area in which slavery would be permitted. This law led to what was called “bleeding Kansas,” where pro-slavery forces came pouring into the territory that was previously free and began fighting violent battles against the anti-slavery inhabitants there.

Northern leaders such as Horace Greeley (famous NY newspaper editor of his day), Ohio Senator Salmon Chase (a senator from Ohio, and Massachusetts Senator Charles Sumner (senator from Massachusetts, known as a powerful orator) could not sit back and watch the flood of pro-slavery settlers cross the parallel. They began to toss around the idea for a new party.  In 1854, six anti-slavery members of Congress – belonging to the Democratic Party, the Whig Party, and the Free Soil Party – wrote an article entitled “Appeal of the Independent Democrats” which was widely published in major newspapers all over the states and territories and which criticized the Kansas-Nebraska Act.  The six authors were as follows:

Salmon P. Chase  (Senator from Ohio; member of the Free Soil Party; later to become Lincoln’s Secretary of Treasury and then appointed by him to the Supreme Court where he later wrote an opinion announcing that states have no right to secede from the Union)

Charles Sumner (Senator from Massachusetts; although he helped found the Free Soil Party, he took his seat in the US Senate in 1851 as a Democrat. Sumner was known as a powerful orator. In fact, in 1856, after he delivered an intensely anti-slavery speech called “The Crime Against Kansas” on the Senate floor, he was almost beaten to death by a senator from South Carolina)

J. R. Giddiugs   (anti-slavery congressman from Ohio; member of the Whig Party who would befriend a fellow Whig, Abraham Lincoln)

Edward Wade  (Congressman from Ohio, member of the Free Soil Party)

Gerritt Smith  (Congressman from New York, member of the Free Soil Party; staunch abolitionist)

Alexander De Witt  (Congressman from Massachusetts, member of the Free Soil Party)

The “Appeal of the Independent Democrats” stated:

      “The original settled policy of the United States, clearly indicated by the Jefferson provision of 1784 and the Northwest Ordinance of 1787, was non-extension of slavery.  In 1803 Louisiana was acquired by purchase from France and the plain language of the treaty under which the territory had been acquired from France emphasized that national policy……

     We appeal to the people. We warn you that the dearest interests of freedom and the Union are in imminent peril. Demagogues may tell you that the Union can be maintained only by submitting to the demands of slavery. We tell you that the Union can only be maintained by the full recognition of the just claims of freedom and man. The Union was formed to establish justice and secure the blessings of liberty. When it fails to accomplish these ends it will be worthless, and when it becomes worthless it cannot long endure.

     We entreat you to be mindful of that fundamental maxim of Democracy—EQUAL RIGHTS AND EXACT JUSTICE FOR ALL MEN. Do not submit to become agents in extending legalized oppression and systematized injustice over a vast territory yet exempt from these terrible evils.

     We implore Christians and Christian ministers to interpose. Their divine religion requires them to behold in every man a brother, and to labor for the advancement and regeneration of the human race.

     Whatever apologies may be offered for the toleration of slavery in the States, none can be offered for its extension into Territories where it does not exist, and where that extension involves the repeal of ancient law and the violation of solemn compact. Let all protest, earnestly and emphatically, by correspondence, through the press, by memorials, by resolutions of public meetings and legislative bodies, and in whatever other mode may seem expedient, against this enormous crime.

      For ourselves, we shall resist it by speech and vote, and with all the abilities which God has given us. Even if overcome in the impending struggle, we shall not submit. We shall go home to our constituents, erect anew the standard of freedom, and call on the people to come to the rescue of the country from the domination of slavery. We will not despair; for the cause of human freedom is the cause of God.”

Following the publication of this “Appeal,” spontaneous anti-slavery demonstrations occurred throughout 1854.  Sentiment was quickly building for this new political party which would oppose slavery and help secure equal civil rights for negroes.  It would become known as the Republican Party.  The Republican Party name was christened in an editorial written by newspaper magnate Horace Greeley. Greeley printed in June 1854: “We should not care much whether those thus united against slavery are designated ‘Whig,’ ‘Free Democrat’ or something else.  We  think some simple name like ‘Republican’ would more fitly designate those who had united to restore the Union to its true mission of champion and promulgator of Liberty rather than propagandist of slavery.”

By 1855 it would already have a majority in the US House of Representatives.  By 1856, it held its first nominating convention, in Philadelphia, where it announced that it had become a unified political force.  It’s first presidential candidate would be Abraham Lincoln in 1860.  And his platform would specifically include a pledge not to permit slavery to exist into any US territory that was not already a state.

Before Lincoln would run for president, there would be one more insult to the negro – the infamous Dred Scott decision of 1857. This decision would energize the growing abolitionist movement.

In Dred Scott v. Sandford, the Supreme Court addressed the issue of whether a slave who escaped from a slave state to a free state is considered free.  And the words and thought which flowed from the minds of such supposed constitutional scholars entrusted with the bench of the highest court in the land represented the lowest point in American constitutional jurisprudence.

On March 6th, 1857, Chief Justice Roger B. Taney, a Democrat, a staunch supporter of slavery, and one intent on protecting the South from northern aggression, delivered the majority opinion. He summed the case up in one question: “The question is simply this: Can a negro, whose ancestors were imported into this country (from Africa), and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?  One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.”

Taney answered: “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

Seven of the nine justices agreed that Dred Scott should remain a slave, but Taney did not stop there. He referred to blacks as an “inferior race” and an “unfortunate race” and a degraded and unhappy race.”  He said they are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery.”  He ruled that blacks, whether slaves or as free men, are descended from an inferior race which was never intended to be included among the class of persons protected by our Declaration of Independence or Constitution.  As he explained, the framers of the Constitution believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.” Justice Taney ruled that as a slave, Scott was not a citizen of the United States, could never be a citizen, was therefore not entitled to any rights or privileges afforded by the Constitution, and therefore had no right to bring suit in the federal courts on any matter.  In other words, because blacks (Africans, as Taney referred to them) are an inferior race, they are only fit to serve the interests of other human beings. No African, therefore, can ever be protected by the Constitution.  Referring to the language in the Declaration of Independence that includes the phrase, “all men are created equal,” Taney reasoned that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration….”

In addition, he declared that Scott had never been free, due to the fact that slaves were personal property; thus the Missouri Compromise of 1820 was unconstitutional, and the Federal Government had no right to prohibit slavery in the new territories. The court appeared to be sanctioning slavery under the terms of the Constitution itself, and saying that slavery could not be outlawed or restricted within the United States.

There was a growing abolitionist movement in the United States at the time, particularly in the northern states.  And the Dred Scott decision gave further fuel to ignite the movement.  As mentioned above, Abraham Lincoln ran in 1860 on a platform which promised to end the spread of slavery. He would prohibit slavery in any territory of the United States; only those states already established would be able to keep the institution. He believed if slavery was contained, it would easily die a natural death.  [3]

When Lincoln won the election, and even before he was inaugurated, the southern states began to secede from the Union.  South Carolina led the way.  Eleven southern states would secede and form a new nation – the Confederate States of America – with their own constitution, government, and leaders. Their new constitution permitted slavery outright.  President Lincoln, believing the states had no right to secede, attacked the Confederacy (at Fort Sumter) and engaged them a Civil War from 1861-1865.

The Civil War was fought for many reasons but one instigating factor was slavery, indeed.  While the North did not invade the South for the purpose of abolishing slavery, in 1863, it became politically expedient for Lincoln to announce that slaves will be emancipated.  He figured it would energize the war effort, hasten the defeat of the South, and end the war.  And so, on January 1, as the nation approached its third year of horrible bloodshed, Lincoln issued his Emancipation Proclamation which declared that “all persons held as slaves within the rebellious states are, and henceforward, shall be free.”  The 1963 Emancipation Proclamation was a great boost for moral, particularly among slaves and abolitionists.

Despite this expansive wording, the Emancipation Proclamation was limited in many ways.  First, it would be seen as a temporary war measure, since it was solely based on Lincoln’s war powers. Furthermore, the Proclamation did not free any slaves in the border states nor itself make slavery illegal. It applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control. Most important, the freedom it promised depended upon Union military victory.  What it did, however, was to invigorate the abolitionist sentiment in the north, and more importantly, it changed the character of the war.  The war went from being a war to re-unite and save the Union to a war to free the slaves.  After Lincoln delivered the Proclamation, every advance of federal troops expanded the domain of freedom. Moreover, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators. By the end of the war, approximately 186,000 black soldiers and sailors had fought for the Union and for freedom.  But how to overcome the limitations of the Emancipation Proclamation and memorialize the intent and spirit it represented?

A constitutional amendment would have to be the answer.

Even before the war had come to an end, in April 1865, an amendment to the US Constitution was drafted to abolish slavery and a vote was taken in Congress.  It would be the 13th Amendment, which provides: “Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction.”  The Senate proposed the amendment in February of 1864 and passed it two months later.  But the House refused to pass it.  President Lincoln then got involved.  If the House wouldn’t pass it, then he would make sure the amendment was added to the Republican Party platform for the upcoming Presidential election. His efforts must have worked because the House passed the joint resolution (the 13th Amendment) on January 31, 1865, by a vote of 119 to 56.  It was a very partisan amendment, with 100% of House republicans voting in favor and only 23% of democrats supporting it. It was then sent to the states for adoption.  Note that the Civil War had not yet been won at this point.  The bloody war would not end until April 9, when the great General Robert E. Lee surrendered the Army of Northern Virginia (the confederate army) to the victorious General Ulysses S. Grant at Appomattox, Virginia.

The 13th Amendment was finally ratified on December 6, 1865 when 27 out of the 36 states ratified it (= 3/4 of the states, as required by Article V of the Constitution).  Unfortunately, Lincoln would not live to see the day when slavery would be officially abolished in the country for he was assassinated on Good Friday, April 14.

When the war ended, and the Confederate States of America were defeated, plans had to be made for the individual southern states to re-enter the Union.  Conditions had to be required. And as it turned out, some degree of punishment would be inflicted as well.  While the 13th Amendment received the approval of 3/4 of the states and became effective as part of the Constitution, many of the southern states were still bitter and not willing to recognize blacks as anything other than slaves or an inferior race of people. Slavery may have been abolished by the Constitution but it didn’t mean that they, as states, had to treat them any differently.  Blacks may have been free, but the states weren’t about to permit them to be citizens.  And so Congress came up with the Civil Rights Act.

That was still the year of 1865.

In 1865,  Republican Senator Lyman Trumbull (of Illinois) proposed the Civil Rights Act.  (He was also the co- drafter of the 13th Amendment).  The Civil Rights Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude.  It also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property.  The Civil Rights Act passed both houses of Congress, but President Andrew Johnson vetoed it – in 1865 and then again in 1866.  But in 1866, a 2/3 majority in each house overcame the veto and the bill became law (hence, the official name of the legislation – the Civil Rights Act of 1866).  But that victory didn’t come without a fight by the Democrats.  Democrats tried to stall the passing of this legislation by declaring it was unconstitutional, but Trumball, an attorney and former chief justice of the Illinois Supreme Court, countered by arguing that Congress had power to enact it in order to eliminate a discriminatory “badge of servitude” prohibited by the Thirteenth Amendment.  [In the 20th century, the US Supreme Court would ultimately adopt Trumbull’s rationale in finding congressional power to ban racial discrimination by states and by private parties].

To eliminate any doubt about its constitutionality and to make sure that no subsequent Congress would later repeal or alter its core provisions, Republican members of  Congress decided to memorialize the Civil Rights Act in a constitutional amendment. The Civil Rights Act of 1866 would become our 14th Amendment.  Republican members of the US Congress took advantage of the fact that the southern states were not yet restored to the Union.  In order to be sure that they had the required majority of Senators to pass the amendment (2/3, as required by Article V of the Constitution), they pulled a fast one.  They simply refused to seat Senators from the southern states.

The 14th Amendment declares that free slaves are citizens – not only of the United States but also of the state in which they reside – and as such are entitled to all the privileges and immunities of citizenship.  (“All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state they reside.”)   It also provides that freed slaves cannot be deprived of Life, Liberty, and Property without Due Process and that they are entitled to the Equal Protection of the laws.  The Citizenship Clause and the Equal Protection Clause of the 14th Amendment paralleled the “citizenship” language and the “nondiscrimination” language, respectively, in the Civil Rights Act of 1866.  (They would not be re-admitted until 1868- 1870).

Specifically, the 14th Amendment reads:   Section 1:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Citizenship Clause provides a broad definition of citizenship that expressly overruled the infamous Dred Scott decision of 1857, which declared that all blacks – slaves as well as free – were not and could never become citizens of the United States.  The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights. And the Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for the Supreme Court’s decision in Brown v. Board of Education (1954), which precipitated the dismantling of racial segregation in our schools.

The 14th Amendment was proposed on June 13, 1866, as House Joint Resolution 127, and was then immediately sent to the states for ratification.  At that time, the eleven defeated confederate states were not yet re-admitted to the Union. Nonetheless, as with the 13th Amendment, they were asked to ratify the 14th Amendment, which all refused to do – except Tennessee, which adopted it immediately and was therefore permitted re-admission. It was re-admitted on July 24, 1866. (Tennessee had been conflicted even from the very beginning as to whether it wanted to secede or not.  In fact, after the state legislature voted to secede from the Union, a large portion of the population tried to secede from Tennessee and remain with the Union).  In addition, the 14th Amendment was decidedly rejected by the border states as well. By March 1867, twenty states had ratified and thirteen had rejected the proposed amendment. With the southern and border states refusing to adopt the 14th Amendment, it failed to secure the 3/4 of states necessary for ratification as required under Article V.   And so the amendment failed to pass.

After learning that the proposed amendment’s failure, the Republicans (specifically referred to as the “Radical Republicans”) in Congress responded by passing the Reconstruction Act of March 2, 1867, which essentially put the south under martial law and restricted their abilities to govern themselves and to participate in the federal government.  Under the congressional plan, the former confederacy (minus Tennessee) was broken up into five military districts. Each district was under the control of federal troops and headed by a particular northern Civil War general.  This was the notorious Reconstruction Era, which would have longstanding impressions on the southern states.  The purpose of Reconstruction, as was made clear by the Reconstruction Act, was to punish the South.  The law set out to determine the conditions under which the southern states would be permitted to return to the Union, how they would be re-seated in government, how they would govern themselves, what would become of their “rebellious” leaders, and how they would treat their freedmen.  All this would be determined while the states were under martial law and under the scrutiny of the federal government.  Specifically, in order to be re-admitted to the Union , the states would have to rewrite their constitutions to disqualify former Confederate officials from office and guarantee black males the right to vote.  Most importantly, the states would have to ratify the 14th Amendment.  Once these conditions were met and military rule was ended, then could the former confederate states be re-admitted to the Union.  As one Republican (northern) representative described the situation: “The people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet.”

By July 9, 1868, with ratification by North Carolina, Louisiana, and then South Carolina, enough states had ratified the 14th Amendment so that it was certified to become part of the US Constitution.  It would not be until 1870 that the last southern state, Georgia, would be re-admitted and the Union would be reconstituted.  [4]

Let’s return again to the year 1865.  In that year, the Republican Congress created the Bureau of Refugees, Freedman, and Abandoned Lands (aka, “Freedman’s Bureau”) to help freed slaves transition from bondage to freedom.  An Inquiry Commission was tasked with assessing the needs of Freedman to justify whether such a Bureau was  worthwhile, and in their Final Report, the Commission concluded:

“Let us beware the temptation to treat the colored people with less than even justice, because they have been, and still are, lowly and feeble. Let us bear in mind that, with governments as with individuals, the crucial test of civilization and sense of justice is their treatment of the weak and the dependent.

God is offering to us an opportunity of atoning, in some measure, to the African for our former complicity in his wrongs. For our own sakes, as well as for his, let it not be lost. As we would that He should be to us and to our children, so let us be to those whose dearest interests are, by His providence, committed for the time to our charge.

As regards the question, What amount of aid and interference is necessary or desirable to enable the freedmen to tide over the stormy transition from slavery to freedom?   We have chiefly to say that there is as much danger in doing too much as in doing too little. The risk is serious that, under the guise of guardianship, slavery, in a modified form, may be practically restoredThose who have ceased, only perforce, to be slave-holders, will be sure to unite their efforts to effect just such a purpose. It should be the earnest object of all friends of liberty to anticipate and prevent it. Benevolence itself, misdirected, may play into the hands of freedom’s enemies, and those whose earnest endeavor is the good of the freedman may, unconsciously, contribute to his virtual re-enslavement.

The refugees from slavery, when they first cross our lines, need temporary aid, but not more than indigent Southern whites fleeing from secessionism, both being sufferers from the disturbance of labor and the destruction of its products incident to war. The families of colored men, hired as military laborers or enlisted as soldiers, need protection and assistance, but not more than the families of white men similarly situated. Forcibly deprived of education in a state of slavery, the freedmen have a claim upon us to lend a helping hand until they can organize schools for their children. But they will soon take the labor and expense out of our hands, for these people pay no charge more willingly than that which assures them that their children shall reap those advantages of instruction which were denied to themselves.

For a time we need a freedman’s bureau, but not because these people are negroes, only because they are men who have been, for generations, despoiled of their rights. The Commission has, in supplemental report made to you last December, recommended the establishment of such a bureau, and they believe that all that is essential to its proper organization is contained, substantially, in a bill to that effect reported on April 12 from the Senate Committee on Slavery and Freedmen.”

The Freedman’s Bureau established schools to teach freed slaves how to read and write and provide them with a basic education. The Bureau also provided food, set up courts to protect emancipated slaves’ contractual and other civil rights, and founded savings banks to protect their assets. The crowning achievement of the Freedman’s Bureau was its significant accomplishments in the area education, particularly in the face of the hostile political environment towards blacks at the time. By the end of 1867, the number of schools had doubled and the number of blacks (adults and children) being educated had tripled.  At the same time, the number of banks (including the “Freedman’s Saving & Trust Company,” chartered by Congress) had increased and freedmen were saving at a rate of four times higher than the previous year to purchase homestead plots and businesses.

Unfortunately, the activities of groups such as the Ku Klux Klan (KKK), as well as state action in the form of Black Codes and then Jim Crow, would present barriers to the Republican’s plan to advance the freed slaves and make sure that the Civil Rights Act of 1866 would fail to secure their civil rights. The KKK, as we’ll soon see, was started in 1866 to frustrate the attempts of Republicans to infect the South.  Black Codes were laws that were passed in the 1860′s by the Southern states (and varying from state to state), to maintain the inferiority of freed blacks and to undermine their civil rights. The black codes were passed in retaliation to the abolition of slavery and the defeat by the North.  They had their roots in the former slave codes, which were premised on the notion that Africans were property, or chattel (and therefore, had very few, if any, legal rights).  Black Codes were distinct from Jim Crow. Jim Crow refers to an era ushered in later in the 19th century, following Reconstruction.

As mentioned earlier, 1867 was the start of the Reconstruction Era.  In order to be re-admitted to the Union , the former confederate states would have to endure military rule until they met the conditions set forth in the Reconstruction Act –  including rewriting their constitutions to disqualify former Confederate officials from office, guaranteeing black males the right to vote, and ratifying the 14th Amendment.  During Reconstruction, military governors oversaw the registration of voters, in order that freed slaves were not disenfranchised. Under the scrutiny of federal troops, elections were held in which the freed slaves could vote. At the same time, while whites who held leading positions under the Confederacy were not only barred from running for office but were also temporarily denied the right to vote.  It was a profoundly bitter time for the South.

Reconstruction was never part of Lincoln’s plan to restore the Union.  We have to take him at his word.  In his second Inaugural Address, he declared: “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace.”

As one reference describes that period of time for the South: “Reconstruction is the period after the war when the South was under martial law and when the people basically lost their rights as Americans, was a terrible time for the citizens of the former Confederate States of America. It was intended by the US Congress as punishment for secession. The South was controlled by military leaders, who may have been excellent commanders in battle, but were pretty much universally horrible as governors. A ‘carpetbagger’ government was put in place… Men who were generally scoundrels and often criminals served as ‘rulers’ of the states and communities. They appointed former Union sympathizers and former slaves in positions of authority, to infuriate and humiliate the people. This was pretty much a lawless time throughout much of the south, not unlike that in the western territories. [Former Civil War General Nathaniel Bedford] Forrest described that government as ‘I believe that party to be composed, as I know it is in Tennessee, of the worst men on Gods earth – men who would not hesitate at no crime, and who have only one object in view – to enrich themselves.’ “  [ www.freesociety.com]

Reconstruction would last for 17 years and would be responsible for much of the resentment that the South continues to feel for the North and for the government in general.

In ten out of the eleven seceding southern states (again, all except Tennessee), black freedmen and white transplants from the North (known as “carpetbaggers” because many brought their belongings in large carpet bags)  and white Southerners who switched allegiance and supported Reconstruction (known as “scalawags“) joined together to establish republican bi-racial state governments during the Reconstruction era. They introduced various reconstruction programs, secured massive federal aid to re-build railroads and other transportation, established public school systems, and raised taxes to fund it all.  They also helped freed blacks become involved in the local government, become educated, and become employed. These groups, however, were seen as outsiders and/or traitors and were attempting to transform the South into a society that it wasn’t ready to accept. They would have to be stopped.  Thus was born the Ku Klux Klan.

History teaches us that the Ku Klux Klan was a violent organization aimed at terrorizing and intimidating former slaves. They operated as a secret society – a bunch of cowards with white gowns and masks, often carrying guns and a noose.  We know the Klan’s record of burning crosses and lynching negroes. We know its record on civil rights.

But the reason the Ku Klux Klan was formed was for a far different purpose.  The KKK was founded in 1866 in Pulaski, Tennessee, by six former Confederate officers of the Civil War.  These men approached distinguished General Nathan Bedford Forrest, one of the great heroes of the war, with the idea of a “police force” and asked for his “blessings,” for he held the love and respect of the people.  He gave his blessings, and in return, he was appointed their first leader. He was the first Grand Wizard.  He would describe the organization as a social club and as “a protective political military organization.”  It was initially formed to help take care of poor Confederate widows.  They also fought crime and “took care” of criminals.  In other words, they basically restored order to the South, where for years there was none.

In an interview, General Forrest had this to say: “Yes, sir. It is a protective political military organization. I am willing to show any man the constitution of the society. The members are sworn to recognize the government of the United States. It does not say anything at all about the government of Tennessee. Its objects originally were protection against Loyal Leagues and the Grand Army of the Republic; but after it became general it was found that political matters and interests could best be promoted within it, and it was then made a political organization, giving its support, of course, to the democratic party…….Since its organization, the leagues have quit killing and murdering our people. There were some foolish young men who put masks on their faces and rode over the country, frightening negroes, but orders have been issued to stop that, and it has ceased. You may say, further, that three members of the Ku-Klux have been court-martialed and shot for violations of the orders not to disturb or molest people.”

But soon, the Klan took on a more aggressive nature.  It began to “persuade” freed blacks to assume their former status and to “scare” them into not voting or running for any elected office, as well as to harass and intimidate northern transplants, southern republicans, and other southerners who were supportive of the Union.

Controversy exists over whether Forrest actually played an active part in the organization and when he decided to sever his associate with it.  Within a year or two of the Klan’s founding,  Forrest was asked if he was a member and he answered: “I am not, but am in sympathy and will co-operate with them. I know that they are charged with many crimes that they are not guilty of.”  In 1869  he asked the KKK to disband, stating: “being perverted from its original honorable and patriotic purposes, becoming injurious instead of subservient to the public peace.”

Again, the KKK, as originally intended, did not target Negroes.  In fact, Forrest gave many speeches and talks around the Memphis area from 1866, the year the KKK was founded, until 1874.  Most of these speeches talked of peace, patriotism for the US Constitution, and trying to bring the country back together.  On several occasions, he addressed black groups, to which he spoke these words: “We are born on the same soil, breathe the same air, live on the same land, and why should we not be brothers and sisters?”  This is hardly the rhetoric of the Ku Klux Klan that it would later become — a murderous hate group.

[Someone once asked Robert E. Lee to name the greatest soldier produced on either side during the war and he replied, “A man I have never seen, sir. His name is Forrest.”  William Tecumseh Sherman, General of the Army of the Potomac, who during the War called him “that devil Forrest,” also had a high opinion of Forrest and said, “Forrest was the most remarkable man our Civil War produced on either side.” ]

As we all know, the KKK would continue on to spread into nearly every Southern state, launching a “reign of terror” against Republican leaders – black and white.  It would become the “militant arm” of the Democratic Party.  Forrest’s grandson, Nathan Bedford Forrest II, a democrat and Grand Dragon of the KKK, wrote in the September 1928 edition of the Klan’s The Kourier Magazine: “I have never voted for any man who was not a regular Democrat.  My father  never voted for any man who was not a Democrat.  My grandfather was the head of the Ku Klux Klan in the Reconstruction days….  My great-grandfather was a life-long Democrat….  My great-great-grandfather was…one of the founders of the Democratic party.”

In Dr. Eric Foner’s book, A Short History of Reconstruction, he wrote: “In effect, the Klan was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy.  It aimed to destroy the Republican party’s infrastructure, undermine the Reconstruction state, reestablish control of the black labor force, and restore racial subordination in every aspect of Southern life.”  [pg. 184].  He provides many accounts of the horrific acts of terror inflicted by Democrats on black and white Republicans.  Professor Foner recounts one such act of  terror: “Jack Dupree was a victim of a particularly brutal murder in Monroe County, Mississippi. Assailants cut his throat and disemboweled him, all within sight of his wife, who had just given birth to twins.  He was ‘president of a republican club‘ and known as a man who ‘would speak his mind.’”   [pp. 184-185].

After examining the abundant evidence concerning this violence, US Senator Roscoe Conkling concluded that the Democratic Party was determined to exterminate blacks in those States where Democratic supremacy was threatened.  As a response to Democratic violence in the South, and in order to further secure the civil rights of blacks, Congress passed the 15th Amendment, explicitly guaranteeing voting rights for blacks.

The 15th Amendment – the final of the three post-war civil rights amendments was proposed by the US Congress on February 26, 1869.  It was ratified by the states in 1870.  It was the first-ever constitutional expansion of voting rights.  Like the two previous civil rights amendments, it was passed along partisan lines. Not a single one of the 56 Democrats in Congress at that time voted for the 15th Amendment.  Not a single Democrat, either from the North or the South, supported granting explicit voting rights to black Americans. Several fierce advocates of equal rights, like Senator Charles Sumner of Massachusetts, abstained from voting because it did not go far enough, in their opinion.  They wanted the amendment to prohibit such arbitrary schemes which states might use to restrict black suffrage, such as literacy tests and poll taxes. Yet, despite the opposition from Democrats, the 15th Amendment did pass, thanks to the overwhelming support by Republican legislators. With the passage of this Amendment, leading abolitionist Wendell Phillips joyfully exclaimed, “We have washed color out of the Constitution!”

Reconstruction officially ended with the presidential election of 1876, which is discussed below. The newly-elected president, Rutherford B. Hayes, removed the remaining federal soldiers from the military districts and the southern states were once again free to resume their traditional state functions. Once the soldiers were gone, however, southern Democrats started mistreating the black people again with no fear of punishment because there were no soldiers to enforce the new laws, including the Civil Rights Act of 1866 and the civil rights amendments.  As Republican influence was waning in the former confederacy, there was little political protection for the emancipated blacks from the Republican Party. It would only get worse in the years following the end of martial law.

The period that followed Reconstruction was known as “Redemption.”  Redeemers were part of the Southern Democrats who sought to oust the Republican coalition of freedmen, carpetbaggers, and scalawags and “redeem” the states from the Republicans back to the Democrats.  Redemption would be complete before the election of 1880.

It wasn’t until 1876 that the Southern Democrats were finally able to regain state political control. And it occurred thanks to the efforts of the Ku Klux Klan and other more formal paramilitary (terrorist/intimidation) groups affiliated with the Democratic Party, such as the White League and the Red Shirts.  And it most specifically occurred thanks to the fraud and controversy which surrounded the 1876 election between Republican presidential candidate Rutherford B. Hayes and Democrat Samuel J. Tilden.  By 1876, only 3 states – Louisiana, South Carolina, and Florida – were not yet “redeemed.”  The election ended up with 20 disputed electoral votes.  On election night, as the votes were counted and the results circulated about the country by telegraph, it was clear that Tilden had won the popular vote.  His final popular vote tally would be 4,288,546. The total popular vote for Hayes was 4,034,311. But the election was deadlocked. Tilden had 184 electoral votes, one vote short of the required majority. Four states – Oregon, South Carolina, Louisiana, and Florida – had disputed elections, and those states held 20 electoral votes.

A special commission, the Electoral Commission, was established by Congress to resolve those votes. There were 15 members – 7 members from the Democratic House, 7 members from the Republican Senate, and one member from the Supreme Court (who turned out to be a Republican). The commission voted along strict partisan lines to award all the disputed voted to Hayes, making him the winner by an electoral count of 185-184.  Infuriated Democrats threatened to contest the election results until a deal was struck with Republicans. The Democrats would agree to support the commission’s finding in exchange for removing federal troops from the South, naming a Southerner to the Hayes’ cabinet, and allocating federal aid to the South.  The Democratic Party regained power in South Carolina in 1877 and other states quickly followed.  Thus was the quick rise and fall of the Republican Party in the South.

The 1880′s began the period known as the Jim Crow era.  This was the era where democratic state legislatures attempted to roll back the advances on behalf of freed slaves and other blacks by the Republicans. It was during this time that democratic state legislatures disfranchised most blacks and many poor whites through a combination of state constitutional amendments and electoral laws. They segregated blacks from white society and plantation owners found new ways to bind their former slaves as miserably-paid workers through sharecropping and other contractual arrangements. For all intents and purposes, many blacks found themselves in virtually the same position they had occupied before their emancipation.

In 1896, the Supreme Court heard the case of Plessy v. Ferguson, which addressed a  Louisiana Jim Crow law that segregated rail cars. Homer Plessy, a black man, tried to board a “whites-only” train in Louisiana when the car designated for blacks was full.  Once he boarded, he was forcibly removed and jailed. He sued the state, claiming the Louisiana segregation laws violated both his 13th and 14th Amendment rights. The Supreme Court, by a vote of 8-1, ruled that the 14th Amendment did not include a requirement that the races needed to be co-mingled and therefore upheld the doctrine of “Separate but Equal” when it came to facilities for blacks.  Segregation was justified, providing the facilities and services were essentially equal.  Plessy marked the beginning of a 58-year period where Jim Crow laws were largely unchallenged and condoned by the federal government.  It not only perpetuated the white supremacist beliefs of the time, but also made it possible for states to make and enforce Jim Crow laws with impunity.

As admirable and inspiring as blacks were in the years following their liberation, a stark contrast in human nature was seen by the forces against them. Groups like the KKK and southern democrats behaved shamefully, deplorably, and inhumanely. Blacks began a distinguished, dignified, and long-overdue chapter in their history after the Civil War, but the opposite was true for the groups who acted in opposition to their freedom and to their rapid success. Many southern Democrats despised blacks and Republicans and they utilized every means possible to keep them from voting – including not only the use of devious and cunning means but also the direct use of violence. Here’s the thing. After slavery was abolished, ALL freed slaves and other blacks were Republicans. [In the South, whites were mostly Democratic, but some could be Republican. Southern whites loyal to the antebellum South were mostly Democratic. Whites who sympathized with the North and wanted civil rights for blacks were Republican (scalawags). The worst thing you could be in the Reconstruction era South, and in the years that followed, was a Republican. And the most offensive Republican was a black one.

By 1900, democrats actually began actively to seek a repeal of the 14th and 15th Amendments.  As democratic Senator Ben Tillman from South Carolina explained:  “We made up our minds that the 14th and 15th Amendments to the Constitution were themselves null and void; that the civil rights acts of Congress were null and void; that oaths required by such laws were null and void.”  Prominent democratic leader A. W. Terrell of Texas said that the 15th Amendment guaranteeing black voting rights was “the political blunder of the century.”

Democrats from both the North and the South agreed with Terrell and Tillman, and several asked for a repeal of the  amendments.  Louisiana Senator Samuel McEnery, who was one of those democrats, was confident that the effort would succeed.  He even declared: “I believe that not a single southern Senator would object to such a move.”  Fortunately, the attempt failed.

In 1901, at the same time that democrats were seeking to roll back the civil rights amendments, republican President Teddy Roosevelt infuriated many democrats by inviting Booker T. Washington, a mulatto former slave who went on to become the leader of the Tuskegee Institute, to the White House.  Washington became the first American of African descent to dine with a President at the White House.  He served as an advisor to three republican US presidents – William McKinley, Roosevelt, and William Taft.  Democrat President Woodrow Wilson, however, would not seek his counsel.

In 1915, the pro-Klan movie “Birth of a Nation” by D.W. Griffith was released to help beef up the ranks of the Ku Klux Klan.  It was based on a book called “The Clansman” which was written by an avid racist, Thomas Dixon Jr.  Dixon’s text incorporated some material from Woodrow Wilson’s book, “History of the American People” – particularly the part portraying the Ku Klux Klan in a sympathetic light.  For example, it includes this piece from Wilson’s book: “The white men were roused by a mere instinct of self-preservation until at last there had spring into existence a great Ku Klux Klan, a veritable empire of the South, to protect the Southern country.”  This section also made it into Griffith’s movie.  Democratic president Woodrow Wilson (1913-1921) held a private showing of this racist Klan-recruiting film at the White House.  It was the first film to ever be shown at the White House.  How racist was this film?  It would become a major recruiting tool.  It would be so successful that it helped the Klan to reach its peak membership of almost two million. Could the success in recruitment stem, perhaps, from an endorsement of the film from the highest office in the land?

President Woodrow Wilson was the first southerner to be elected to the White House since 1844 and only the second Democrat to be elected since Reconstruction. While he is respected as a scholar (serving as president of Princeton University) and viewed as a man of peace, especially in the public school system (he presented his “Fourteen Points of Peace” to Congress for establishing a lasting peace in Europe after WWI and wanted so badly to establish his particular version of a League of Nations), he was also regarded as an outright racist and a white supremacist. There is certainly an abundance of historical documentation to support this statement. While serving as the president of Princeton, Wilson discouraged black from applying to the university.  And then when he served as Governor of New Jersey, he refused to confirm the hiring of blacks in his administration. As Wilson was known to say: “Segregation is not humiliating; it’s a benefit!” As historians explain, he was a product of the pre- and post-war South and was brought up under the assumption at the time that the black race was inferior to the Saxon people. He was also bitter over the forced policies of Reconstruction on the southern states.  He feared what might arise from a South “ruled by an ignorant and inferior race.”  Ironically, in the election of 1912, “an unprecedented number” of blacks left the Republican Party to cast their vote for Wilson, a Democrat because they were encouraged by his promises of support for minorities.

But once he took office however, he acted contrary to his campaign promises. Black leaders quickly noticed that he put segregationist white southern democrats in charge of many executive departments.  He fired most of the blacks who held appointed posts within the federal government, and then permitted his segregationist cabinet appointees to establish official segregation policies in the Post Office, Treasury, and Navy, which until that time had been desegregated.  (Many of these would remain segregated clear into the Truman administration, in the 1940’s). Suddenly, under his authority, photographs were required of all applicants for federal jobs and new facilities were designed to keep the races working there separated (including separate toilets and lunch rooms).  And then the democrat-controlled House proposed passed a bill making it a felony for any black person to marry a white person in Washington DC.

In the early 20th century, African-Americans needed a President to offer them hope.  In many parts of the country, mostly in the South however, whites made them feel inferior.  State laws enshrined a presumption of inferiority. And the Supreme Court had upheld those laws, thereby allowing the perpetuation of such laws and establishing cruel stereotypes.  In the early 1860’s, Abraham Lincoln was one such president who offered hope.  In a time when it wasn’t necessarily acceptable, he formed a strong friendship with a man of color – Frederick Douglass, a freed slave.  Douglass was welcome at the White House and was often there to speak with the President.  The mutual affection the men had for each other inspired Douglass to write these words in his memoirs after Lincoln was assassinated: “I have often said elsewhere what I wish to repeat here, that Mr. Lincoln was not only a great president, but a great man — too great to be small in anything. In his company I was never in any way reminded of my humble origin, or of my unpopular color.”

But Woodrow Wilson would not be that kind of president.  His government policies would remind black Americans of their humble origin and of their unpopular color.  It would remind them of the low expectations that the country still had of them.  Robert Kennedy once spoke most eloquently about the importance of standing up for the rights of others. “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope… and crossing each other from a million different centers of energy and daring those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”

The Jim Crow effectively ended in 1954 when the Supreme Court struck down school segregation in the Brown v. Board of Education case.  The case addressed de jure(legislative) segregation in public schools.  Segregation was permissible at the time, supported by the Plessy standard – “separate-but-equal.” As long as facilities were fairly equal, the Supreme Court did not interpret the 14th Amendment to require a physical mixing of the races. With Plessy v. Ferguson, the Supreme Court kept the spirit of Jim Crow alive by proclaiming from the highest legal tribunal that segregation was permissible under the 14th Amendment’s notion of Equal Protection of the laws.  But after looking at the particular case of public school segregation, Chief Justice Earl Warren, who delivered the Court’s opinion, declared that the doctrine of “separate-but-equal” doctrine of Plessy had no place in public education. It was a personal opinion that he held strongly and which he apparently withheld during his Senate confirmation for the high court.  He was appointed to the Supreme Court in 1953 by President Harry Truman just in time for oral arguments in the Brown case.  As soon as the Senate confirmed him, he told his colleagues on the bench that he believed racial segregation violated the Constitution and that only if one considered African Americans inferior to whites could the practice be upheld.

Chief Justice Earl Warren was a Republican. In fact, he ran as a Republican for the seat of Governor of California, which he won. He served three terms. 

Brown v. Board of Education, 347 U.S. 483 (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. Handed down on May 17, 1954, the Warren Court’s unanimous (9–0) decision stated that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and was a major victory of the civil rights movement.  It is said that the case was decided by the results of a “doll test.”

The doll test at the heart of the Brown decision was designed by Mamie and Kenneth Clark, African-American (husband and wife) psychologists, to study the effects of segregation and racism on the self-esteem of black children.  In the test, black children were put in a room with two types of dolls – a white doll with blonde hair and a brown doll with black hair – and then observed to see which dolls they preferred to play with. The children were then asked questions inquiring as to which doll is the nice doll, which one looks bad, which one has the nicer color, etc.  (Mamie used a similar test as the basis of her master’s thesis).  All the black children preferred the white dolls.  The findings of the Clarks’ doll test were submitted to the Supreme Court as evidence of the negative impact of segregation on the mental and psychological status of black schoolchildren. The Clarks concluded that the children felt the impact of segregation and felt a sense of inferiority.

The key holding of the Court was that, even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and unconstitutional. They found that a significant psychological and social disadvantage was given to black children from the nature of segregation itself (drawing on the “doll study” research). This aspect was vital because the question was not whether the schools were “equal,” which under the Plessy standard, they should have been, but whether the doctrine of “separate-but-equal” was constitutional with respect to public education. The justices answered with a strong “no.”  Chief Justice Warren wrote:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does… Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system… We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

The decision did not sit well with Southern Democrats.  After 90 years, they still weren’t willing to allow blacks to “sit at the same table” with whites.

In a campaign known as “Massive Resistance,” Southern white legislators and school boards enacted laws and policies to evade or defy the U.S. Supreme Court’s Brown ruling and its mandate to desegregate schools “with all deliberate speed.”  [Brown v. Board of Education II (1955), where the Supreme Court specifically addressed the relief that would be appropriate in light of the 1954 Brown decision].  In 1956, nearly every congressman in the Deep South – 101 in all (out of the 128 total in the region) – signed a document entitled the “Southern Manifesto,” drafted by Senator Strom Thurmond, to repudiate the decision.  19 Senators and 77 members of the US House from the southern states signed it.  Of all the 101 southern legislators who signed the document, all were Southern Democrats – except two congressman from Virginia who were Republicans. The Southern Manifesto said the Brown decision not only represented “a clear abuse of judicial power,” but it was an unconstitutional interpretation. It argued that the Constitution does not grant the government the power to legislate in the area of education and it has no power to force states to integrate their schools. Furthermore, the signers urged their state officials to resist implementing the Court’s mandates.

Two years later, in response to the Southern Manifesto and in response to southern opposition in general, the Supreme Court revisited the Brown decision in Cooper v. Aaron(1958), asserting that the states were bound by the ruling and affirming that its interpretation of the Constitution was the “supreme law of the land.”

The Southern Manifesto on Integration (of March 12, 1956) read:

      The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.

     The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders. 

     We regard the decision of the Supreme Court in the school cases as clear abuse of judicial power. It climaxes a trend in the Federal judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the states and the people. 

     The original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other amendment. The debates preceding the submission of the Fourteenth Amendment clearly show that there was no intent that it should affect the systems of education maintained by the states. 

     The very Congress which proposed the amendment subsequently provided for segregated schools in the District of Columbia. 

     When the amendment was adopted in 1868, there were thirty-seven states of the Union. Every one of the twenty-six states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same law-making body which considered the Fourteenth Amendment. 

     As admitted by the Supreme Court in the public school case (Brown v. Board of Education), the doctrine of separate but equal schools “apparently originated in Roberts v. City of Boston (1849), upholding school segregation against attack as being violative of a state constitutional guarantee of equality.” This constitutional doctrine began in the North – not in the South – and it was followed not only in Massachusetts but in Connecticut, New York, Illinois, Indiana, Michigan, Minnesota, New Jersey, Ohio, Pennsylvania and other northern states until they, exercising their rights as states through the constitutional processes of local self-government, changed their school systems. 

      In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly declared that under the Fourteenth Amendment no person was denied any of his rights if the states provided separate but equal public facilities. This decision has been followed in many other cases. It is notable that the Supreme Court, speaking through Chief Justice Taft, a former President of the United States, unanimously declared in 1927 in Lum v. Rice that the “separate but equal” principle is “within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment.” 

     This interpretation, restated time and again, became a part of the life of the people of many of the states and confirmed their habits, customs, traditions and way of life. It is founded on elemental humanity and common sense, for parents should not be deprived by Government of the right to direct the lives and education of their own children. 

     Though there has been no constitutional amendment or act of Congress changing this established legal principle almost a century old, the Supreme Court of the United States, with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land. 

     This unwarranted exercise of power by the court, contrary to the Constitution, is creating chaos and confusion in the states principally affected. It is destroying the amicable relations between the white and Negro races that have been created through ninety years of patient effort by the good people of both races. It has planted hatred and suspicion where there has been heretofore friendship and understanding. 

      Without regard to the consent of the governed, outside agitators are threatening immediate and revolutionary changes in our public school systems. If done, this is certain to destroy the system of public education in some of the states. 

     With the gravest concern for the explosive and dangerous condition created by this decision and inflamed by outside meddlers. 

     We reaffirm our reliance on the Constitution as the fundamental law of the land. 

     We decry the Supreme Court’s encroachments on rights reserved to the states and to the people, contrary to established law and to the Constitution.

     We commend the motives of those states which have declared the intention to resist forced integration by any lawful means. 

     We appeal to the states and people who are not directly affected by these decisions to consider the constitutional principles involved against the time when they too, on issues vital to them, may be the victims of judicial encroachment. 

     Even though we constitute a minority in the present congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the states and of the people be made secure against judicial usurpation. 

     We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation. 

     In this trying period, as we all seek to right this wrong, we appeal to our people not to be provoked by the agitators and troublemakers invading our states and to scrupulously refrain from disorder and lawless acts.

Signed by:

Members of the United States Senate:
Alabama:  John Sparkman and Lister Hill.
Arkansas:  J. W. Fulbright and John L. McClellan.
Florida:  George A. Smathers and Spessard L. Holland.
Georgia:  Walter F. George and Richard B. Russell.
Louisiana:  Allen J. Ellender and Russell B. Lono.
Mississippi:  John Stennis and James O. Eastland.
North Carolina:  Sam J. Ervin Jr. and W. Kerr Scott.
South Carolina:  Strom Thurmond and Olin D. Johnston.
Texas:  Price Daniel.
Virginia:  Harry F. Bird and A. Willis Robertson.

Members of the United States House of Representatives:
Alabama:  Frank J. Boykin, George M. Grant, George M. Andrews, Kenneth R. Roberts, Albert Rains, Armistead I. Selden Jr., Carl Elliott, Robert E. Jones and George Huddleston Jr.
Arkansas:  E. C. Gathings, Wilbur D. Mills, James W. Trimble, Oren Harris, Brooks Hays, F. W. Norrell.
Florida:  Charles E. Bennett Robert L. Sikes, A. S. Her Jr., Paul G. Rogers, James A. Haley, D. R. Matthews.
Georgia:  Prince H. Preston, John L. Pilcher, E. L. Forrester, John James Flint Jr., James C. Davis, Carl Vinson, Henderson Lanham, Iris F. Blitch, Phil M. Landrum, Paul Brown.
Louisiana:  F. Edward Hebert, Hale Boggs, Edwin E. Willis, Overton Brooks, Otto E. Passman, James H. Morrison, T. Ashton Thompson, George S. Long.
Mississippi:  Thomas G. Abernethy, Jamie L. Whitten, Frank E. Smith, John Bell Williams, Arthur Winsted, William M. Colmer.
North Carolina:  Herbert C. Bonner, L. H. Fountain, Graham A. Barden, Carl T. Durham, F. Ertel Carlyle, Hugh Q. Alexander, Woodrow W. Jones, George A. Shuford.
South Carolina:  L. Mendel Rivers, John J. Riley, W. J. Bryan Dorn, Robert T. Ashmore, James P. Richards, John L. McMillan.
Tennessee:  James B. Frazier Jr., Tom Murray, Jere Cooper, Clifford Davis.
Texas:  Wright Patman, John Dowdy, Walter Rogers, O. C. Fisher.
Virginia:  Edward J. Robeson Jr., Porter Hardy Jr., J. Vaughan Gary, Watkins M. Abbitt, William M. Tuck, Richard H. Poff, Burr P. Harrison, Howard W. Smith, W. Pat Jennings, Joel T. Broyhill.

[From Congressional Record, 84th Congress Second Session. Vol. 102, part 4. Washington, D.C.: Governmental Printing Office, 1956. 4459-4460]

***  Joel Broyhill and Richard Poff of Virginia were the only Republicans to sign the Southern Manifesto.  All the others were Southern Democrats

It was not unexpected that Strom Thurmond would draft something like the “Southern Manifesto.”  In 1948, after serving as Governor of South Carolina, he ran for President. But he didn’t run as any ordinary Democrat.  He ran as a Dixiecrat, which was an extremist wing of the Democratic Party – also known as the States’ Rights Democratic Party.  In 1948, the Dixiecrats issued their nine-point platform.  Points four through six read as follows:

(4)  We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one’s associates; to accept private employment without governmental interference, and to earn one’s living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

(5)  We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting and local law enforcement.

(6)  We affirm that the effective enforcement of such a program would be utterly destructive to the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.

As a presidential candidate, Thurmond said: “All the laws of Washington and all the bayonets of the Army cannot force the nigger into our homes, our schools, our churches.”  He lost the election but carried four of the states from the deep South (Louisiana, Mississippi, South Carolina, and Alabama).  In 1954, he was elected to the US Senate, as the only successful write-in candidate. And thus began his infamous career in Washington DC.

Fast-forward to the year 1963.

On August 23, 1963, civil rights organizers held a massive march on Washington DC, calling for legislative action to end discrimination. Set on the steps of the Lincoln Memorial and broadcast to a television audience, Dr. Martin Luther King Jr. would deliver a stunningly eloquent speech that helped advance the cause of civil rights and define a standard of civility.  He spoke the timeless words “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”  This was the Dream.

He invoked powerful imagery:

We have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of Life, Liberty, and the Pursuit of Happiness.

      It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice…..

       Let us not wallow in the valley of despair.  I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

Dr. King was a Republican. He believed in the “opportunity” afforded Americans under the Declaration of Independence – the “equal” opportunity.  He talked about Natural Rights… Inalienable Rights.  He didn’t preach about equal outcomes or equal things.  He didn’t preach about dependency on government or a political party.  He preached about accomplishment…  the intangible qualities of character and dignity and the tangible ones of education and success.  He preached about a colorless society; one that is based on the dignity of every human being and the notion of common brotherhood.  ”I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.”

Author Zora Neale Hurston once wrote: “I am not tragically colored.  There is no great sorrow dammed up in my soul, nor lurking behind my eyes…. Even in the helter-skelter skirmish that is my life, I have seen that the world is to the strong regardless of a little pigmentation more or less.  No, I do not weep at the world – I am too busy sharpening my oyster knife.”   (1928)

The 1960′s was the era of the great Civil Rights movement.  It was John F. Kennedy who originally pushed for Civil Rights legislation, after the 1963 summer of racial violence. But he knew he didn’t have the support he needed in the House. The House was controlled by Democrats.  As was the Senate. He was hopeful, however, when meetings with Senate Republicans showed that he had firm support among them.  But just two days after the House announced the bill would be heard, Kennedy was assassinated. LBJ asserted he would continue the support for Civil Rights legislation.

But in 1964, the legislation would never have passed without Republican support.  In the US House, 78% of Republicans supported while only 58% of Democrats did.  In the Senate, Democrats showed even less support.  In fact, the ‘Southern-bloc’ of the Senate Democrats – 18 of them – launched a 57-day filibuster which they intended would prevent the Senate from passing the bill. They boldly declared: “We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our (Southern) states.”   Democratic Senator Strom Thurmond (of South Carolina) said: “These Civil Rights Proposals, which the President has sent to Capitol Hill for enactment into law, are unconstitutional, unnecessary, unwise and extend beyond the realm of reason. This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress.”

On the morning of June 10, 1964, Democratic Senator Robert Byrd (of West Virginia), who entered politics as the “Exalted Cyclops” and recruiter for the Ku Klux Klan, filibustered the Senate for over 14 hours – the second longest filibuster ever in our nation’s history.  As part of this filibuster, he cited a racist study that claimed black people’s brains are statistically smaller than white people’s brains.  Only 17 years earlier, he urged the re-birth of the Klan, claiming that “It is needed like never before.”  [And just before that, in 1945, he wrote:  “Rather I should die a thousand times, and see Old Glory trampled in the dirt never to rise again, than to see this beloved land of ours become degraded by race mongrels, a throwback to the blackest specimen from the wilds.”]  When he died at age 92, Democrats still referred to him as the “Conscience of the Senate.”

You can’t make this stuff up.

Republican Senate Minority Leader, Everett Dirksen (Illinois) condemned the filibuster and offered the final remarks in support of the legislation: “Stronger than all the armies is an idea whose time has come. The time has come for equality of opportunity in sharing in government, in education, and in employment.  It will not be stayed or denied. It is here!”  Republicans then rallied to support a cloture vote – which means a vote to end a filibuster. Never in history had the Senate been able to muster enough votes to cut off a filibuster on a civil rights bill.

The clerk then proceeded to call the roll. When the decisive 67th vote was reached, Senate Republicans cheered and many Democrats slumped over in disgust.  In the end, 80% of Senate Democrats voted ‘nay’ on the legislation and only 20% voted to support it.  Because of his strong support of the bill and his efforts to hold Republicans together and build support for the cloture vote, Senator Dirksen – again, a Republican – is generally seen as the hero of the 1964 Civil Rights Act.

The following year, Senator Dirksen, together with Senate Majority leader Mike Mansfield, introduced the 1965 Voting Rights Act.

How is it possible that we have forgotten so much of our nation’s history?  In an era where so much attention is given to the accomplishments of each political party, how is it that the Republican party continues to get short-changed?

How is it that our nation’s leaders, our media, and especially our school system are not reminding the American people of the proud achievements of Republican leaders and the Republican Party with respect to Human Dignity and Equal Rights?  At what point did these achievements magically impute to the Democrats?  Are African-Americans suffering some sort of selective amnesia regarding their history?  Africanesia?   How is the Democratic Party – the party of slavery, secession, segregation, and now socialism – all of a sudden the party of fairness and equal rights?

Why have African-Americans aligned themselves so tightly and blindly to the Democratic Party – the party which historically has stood for the racist policies of the antebellum South  and the vindictive policies of Redemption and Jim Crow?  In promising African-Americans a new American Dream – one of greater government rights and benefits – rather than the American Dream enshrined in the Declaration of Independence, as Dr. Martin Luther King Jr. often spoke about, is the Democratic Party fulfilling the warning that the Freeman Bureau addressed in its Inquiry Commission of 1865 – that with respect to the amount of government aid to provide, “there is as much danger in doing too much as in doing too little. The risk is serious that, under the guise of guardianship, slavery, in a modified form, may be practically restored. Those who have ceased, only perforce, to be slave-holders, will be sure to unite their efforts to effect just such a purpose.“  Too much aid is the enemy of a free man. It will only “contribute to his virtual re-enslavement.”   

And so I ask this question:  Why have African-Americans abandoned the Republican Party when the Republican Party has never abandoned them?

The Republican Party has never thought them worthy of enslavement, either physically or virtually.

References:

David Barton, “What is Slavery?” and  “The Fugitive Slave Law.”   Referenced at: http://www.davidbarton.biz/page/2/

David Barton, “Civil Rights Acts”  and  “Civil Rights Amendments to the Constitution.  Referenced at:  http://davidbartonushistory.weebly.com/

The Dred Scott decision (1857)  –  http://americancivilwar.com/colored/dred_scott.html  and   http://www.pbs.org/wgbh/aia/part4/4h2933t.html

The 13th Amendment:  Ratification and Results, Harp Week.   Referenced at: http://13thamendment.harpweek.com/HubPages/CommentaryPage.asp?Commentary=05Results

The 14th Amendment: Congressional Passage, Harp Week.   Referenced at: http://14thamendment.harpweek.com/HubPages/CommentaryPage.asp?Commentary=03Passage

Gene Healy, “The Squalid 14th Amendment,” Lew Rockwell, August 1999.  Referenced at:  http://www.lewrockwell.com/orig/healy1.html   [Originally posted in Liberty Magazine]

Southern Manifesto on Integration – http://www.pbs.org/wnet/supremecourt/rights/sources_document2.html

TheLies and Racism of Woodrow Wilson. http://www.worldfuturefund.org/wffmaster/Reading/war.crimes/US/Wilson.htm

Bishop Absalom Jones, “A Thanksgiving Sermon,” Anglican History.  Referenced at: http://anglicanhistory.org/usa/ajones/thanksgiving1808.html    [The “Thanksgiving Sermon” was preached January 1, 1808, in St. Thomas’s, or the African Episcopal, Church, Philadelphia, in recognition of the abolition of the African slave trade, on that day, by the Congress of the United States].

Zora Neale Hurston, “How It Feels to Be Colored Me,” The World Tomorrow, May 1928.  Referenced at:  http://xroads.virginia.edu/~ma01/grand-jean/hurston/chapters/how.html

Joseph E. Fallon, “Power, Legitimacy, and the 14th Amendment.”  Referenced at:  http://southernloyalists.tripod.com/id18.html

“George Mason’s Views on Slavery,” Gunston Hall.  Referenced at: http://gunstonhall.org/georgemason/slavery/views_on_slavery.html

The Original Intent of the 14th Amendment.   http://www.14thamendment.us/index.html

Alex Knepper, “Remembering Byrd’s Racism,”  Frum Forum, June 29, 2010.  Referenced at:  http://www.frumforum.com/remembering-robert-byrds-racism/

Frances Rice, “KKK Terrorist Arm of the Democratic Party,”  National Black Republican Association.  Referenced at:  http://www.nationalblackrepublicans.com/index.cfm?fuseaction=pages.DYKKKKTerroristArmoftheDemocratParty&page_id=93

Dr. Eric Foner, A Short History of Reconstruction; Harper & Row Publishers, Inc., 1990.   [Dr. Foner is the DeWitt Clinton Professor of History at Columbia University].

Our Nation’s Archives: A History of the United States in Documents (ed. Erik Bruun and Jay Crosby); Black Dog & Leventhal Publishers, 1999.  [pg. 417 and pp. 731-34]

Inquiry Commission Report (for Freedman’s Bureau) –  Preliminary Report  – http://www.civilwarhome.com/prelimcommissionreport.htm

Inquiry Commission Report (for Freedman’s Bureau)  –  On the Topic of Slavery  – http://www.civilwarhome.com/commisionreportchapt1.htm

Inquiry Commission Report (for Freedman’s Bureau) –  On the Topic of Emancipation – http://www.civilwarhome.com/commissionreportchapt2.htm

Inquiry Commission Report (for Freedman’s Bureau) –  Conclusion: “The Future in the US of the African Race” http://www.civilwarhome.com/commissionreportchapt3.htm

Nathan Bedford Forrest –  http://www.freeinfosociety.com/article.php?id=184     [“The Cause for which you have so long and so manfully struggled, and for which you have braved dangers, endured privations, and sufferings, and made so many sacrifices, is today hopeless. The government which we sought to establish and perpetuate, is at an end. Reason dictates and humanity demands that no more blood be shed. Fully realizing and feeling that such is the case, it is your duty and mine to lay down our arms — submit to the “powers that be” — and to aid in restoring peace and establishing law and order throughout the land.”]

NOTES:

[1]  North Carolina’s ban on the slave trade at the time of the Philadelphia Convention was not an express ban.  “Maryland and Virginia he said had already prohibited the importation of slaves expressly. North Carolina had done the same in substance.”

See James Madison’s Notes on the Constitutional Convention:http://www.constitution.org/dfc/dfc_0525.htm  or  http://avalon.law.yale.edu/18th_century/debates_514525.asp  (the Avalon Project)

Specifically, the Slavery debate:http://www.academicamerican.com/revolution/documents/ConstDebate.html

[2]  The Federalist Party was the party of most of our Founding Fathers and Jefferson’s Democratic-Republican Party would go on to give birth to the Democratic Party, although elements of the platform ultimately made it into the Republican Party as well, such as the requirement for strict interpretation of the Constitution and limited government.

[3]  The Republican Platform was announced in Philadelphia in 1856 – http://www.ushistory.org/gop/convention_1856republicanplatform.htm

[4]  It is argued that the 14th Amendment was never properly ratified.

Before an amendment can be ratified, it must first be proposed. The Constitution provides two methods of proposing an amendment: (i) An amendment can be proposed by 2/3 of the states;  or (ii) It can be proposed by 2/3 of both houses of Congress. The method was used in the case of the 14th Amendment was the latter – the congressional method.  Section V of the Constitution addresses the amendment process and explains that “no state without its consent, shall be deprived of its equal suffrage in the Senate.”  When Congress proposed the amendment in 1866, twenty-three Senators were unlawfully excluded from the U. S. Senate in order for the republicans to secure a 2/3 vote for the adoption of proposed amendment. Those excluded included both senators from each of the eleven southern states and one Senator from New Jersey. This alone is sufficient to invalidate the so-called fourteenth because it was never properly proposed.).

Furthermore, history records that Tennessee was the first state to ratify the 14th Amendment – on July 24, 1866.  But did Tennessee improperly ratify it?  The Tennessee legislature was not in session when the proposed amendment was sent, so a special session of the legislature had to be called. The Tennessee Senate ratified the proposed amendment. However, the Tennessee House could not assemble a quorum as required in order to legally act. Finally, after several days and “considerable effort, two of the recalcitrant members were arrested and brought into a committee room opening into the Chamber of the House. They refused to vote when their names were called, whereupon the Speaker ruled that there was no quorum. His decision, however, was overruled, and the amendment was declared ratified on July 19, 1866, by a vote of 43 to 11, the two members under arrest in the adjoining committee room not voting.”