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

Self-Governing Individuals are Necessary to a Self-Governing Society

Christian Heritage - George Washington in Prayer

by Diane Rufino

Self-governing individuals are necessary to have a self-governing society. That is, only a moral and disciplined people are capable of being governed by a limited government. Those who are not need greater government. The Pilgrims taught us this when they established the successful colony in Plymouth.

The term “self-governing” refers to the ability of individuals to exercise control over oneself. It is the internal obligation one feels  to do the right thing. It is the willingness of individuals to consciously choose and hold onto productive principles that apply in diverse situations. Self-government means self-reliance, self-discipline, and self-improvement. As Thomas Paine said, self-governing individuals are necessary to have a self-governing society.  Representative democracy ultimately depends on the moral character of the people and of the representatives elected.  As James Madison, chief architect of the Constitution, wrote: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”

Self-governing individuals are necessary in order that the United States can hope to maintain a government of constitutional limits and of a size and scope that can be accountable to the people.

The debate at the core of the growing socialist nature of our government is how much should government do to help those who are less fortunate than others?  An entire political party and an entire social movement has been created to answer that question: Total redistribution and equality of status. They are devoted to  redefining what the United States stands for, the nature of government, and the new rights that individuals are entitled to and those that government can now regulate in the name of social justice. They are devoted to the tearing down of the fundamental institutions on which successful self-government is based, such as the family, church, and an education system that educates and not indoctrinates. They are devoted a tireless agenda of trying to “do good without God.”

But good government depends on the character and virtue of the people it represents.

Character is built by overcoming obstacles. People can and do raise themselves out of poverty. The success stories of millions of immigrants paint a picture of the long-run rewards of discipline, perseverance, and

sacrifice. If those stories are to continue, we must protect our liberties, accept our responsibilities, and practice virtue.  We must never lose sight of the primary functions of government, as laid out in our Declaration of Independence; otherwise, we have a government in charge of defining its functions rather than We the People defining our government. If we wish to hold on to the grand notion, established for this nation by our Founders, that sovereign power to govern rests first and foremost with the People, then we honor our founding principles.   According to the Declaration, protecting persons and protecting property are the two main functions of good government. When government steps beyond those legitimate functions, it steps outside the bounds of justice. As James Madison wrote: “That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.”

But the more fundamental debate that is going on in this country is the one which speaks directly to the character of each individual. And that debate is ultimately the one over religion and its proper role in our society.

Character is defined by the set of moral qualities that a person possesses or one’s moral strength. Character is the inner strength to do what is right even when no one is looking.

There is a deeply-embedded understanding in this country, stemming from our very founding settlers, patriots, and Founding Fathers, that religion and morality are fundamentally linked. Morality has roots in religious doctrine. In the Old Testament, God handed down a series of commandments to guide man’s conduct. Man is free indeed, but even the Bible teaches that he should not be free to do everything he pleases. And so we have the Ten Commandments (on which common law, including criminal law, has been based).  In the New Testament, God has established a new covenant with all who believe. And so we see a strong them of forgiveness, compassion, selflessness, and love in those books. Jesus himself summed up his Father’s commandments in two great commandments: the command to love God with all one’s heart and mind (see Deuteronomy 6:5), and the command to love the neighbor as the self (see Leviticus 19:18). Morality sees its roots therefore in the desire to always do good and do what is right. Religion provides the motivation and the reason to do good. It provides meaning to live a moral life. Thomas Paine believed that the moral duty of man consists in imitating the moral and beneficence of God.

There are moral limits to human behavior that are intertwined into our very nature.  They not simply accidents or norms born out of history. There are permanent standards of what is right and wrong, and what is natural and what is unnatural. We regard such limits as something that must be conserved to protect character from avarice, envy, unhealthy ambition, entitlement, a sense of superior self-worth, and destruction. As Russell Kirk noted in his book, The Conservative Mind, we have a “belief in a transcendent order, or body of natural law, which rules society as well as conscience.”

Our Founding Fathers saw morality as dependent on religious principles rather than on some internal value system because they believed that morality is based on timeless truths.    Despite the various religious beliefs of our Founders, they shared a strong common belief that moral truths exist and are necessary for people to responsibly self-govern their own affairs. And that’s why we see the historical record full of advice from them to remain a moral and religious people.

Lasting virtue is never forced; it is not passed in our genes. It is born out of a respect for certain fundamental and eternal truths based on right versus wrong, good versus bad, fair versus unfair. It is born out of love and deep respect for one’s fellow man and for the rights that he values for everyone.

And so we see that the debate has intensified over whether religion is critical to self-government. I would argue that there is no element more important to one’s individual behavior than the influence of religion and the power of the conscience. And that’s why I believe that our Founders intended for the government to encourage the full expression of religious rights and not try to prevent it (using its arbitrary “Wall of Separation” to chill that expression).

Unfortunately, all too often we hear that government and schools aren’t supposed to legislate or teach morality. But if we look at the roots of government and the purpose of law, we find out that the exact opposite is true.

One of the great early philosophers, Marcus Tullius Cicero (106 BC – 43 BC), also the leading lawyer, orator, and Roman senator of his day (during the rule of Julius Caesar), also advanced that position. He wrote volumes on what is the true nature of law and government.  In his book On the Republic, Cicero wrote: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting.”

When Cicero wrote that true law is “right reason,” he assigned it an objective, universal quality. To Cicero, reason is the most divine of all human characteristics as it is reason that separates man from all other creatures that God created and is therefore the one quality that man and God have in common. As he wrote: “That animal which we call man… full of reason and prudence, has been given a certain distinguished status by the Supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.”  Because law comes from right reason, and reason is divine as one human aspect that connects us to God while separating us from the rest of the creatures on the planet, it stands to reason that the law that comes from reason contains a divine element as well.

In the second part of his quote, Cicero claimed that law is also “in agreement with nature.” What Cicero meant by this is that law is in agreement with our nature as human beings.

The significance of this understanding – that Law has divine and natural elements to it – is that it makes law universal, infallible and unchangeable. If laws were human and made by humans, then they would be imperfect just as humans are. They could change, mold and evolve with time just as people and societies do. They could also be different and diverse just as humans are. But just as God, by definition, is the epitome of universality and infallibility, any law that comes from God must be perfect as well. It must be single and universal and transcend all time and all cultures. Cicero clearly recognized this when he wrote, “there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all…”

What this all boils down to is summed up nicely in a statement by Cicero: “God’s law is ‘right reason.’ When perfectly understood it is called ‘wisdom.’ When applied by government in regulating human relations it is called ‘justice.”  Justice, he explained, “originates in our natural inclination, as being created by God in His image, to love our fellow men.”

Cicero was assassinated by order of Marc Antony some forty years before the birth of Christ. It is interesting that Cicero taught the same message that Jesus himself would teach in his short time on Earth.

Religion Was Central to the Success of the American Experiment –

Religious principles and biblical precepts were central to the success of the American experiment. The belief in God and his creation was at the very core of their belief in Natural law and the natural ordering of society and liberty. It was their belief that allowed them to gravitate towards the government philosophy of John Locke, on which our nation’s values were based.  Religious principles form the basis of the ideals stated in the Declaration of Independence, the ordered liberty embodied in our Constitution, and the conviction we have as a nation to recognize the inherent dignity in all human life and to send our brave men and women all over the globe to fight for the rights of others.  Religious principles were, and still are, essential to the security of the freedom we claim to stand for and to the foundation that grounds our nation’s founding ideals. In short, the great American Experiment was founded on religion and needs that support if posterity is to enjoy what is promised in the Declaration of Independence.

The key to America’s religious liberty success story is its focus on the sovereignty of the individual and its constitutional order. The Founders argued that virtue derived from religion is indispensable to limited government. The Constitution therefore guaranteed religious free exercise while prohibiting the establishment of a national religion. This Constitutional order produced a constructive relationship between religion and state that balances citizens’ dual allegiances to God and earthly authorities without forcing believers to abandon (or moderate) their primary loyalty to God. This reconciling of civil and religious authorities, and the creation of a Constitutional order that gave freedom to competing religious groups, helped develop a popular spirit of self-government. All the while, religious congregations, family, and other private associations exercise moral authority that is essential to maintaining limited government. The American Founders frequently stated that virtue and religion are essential to maintaining a free society because they preserve “the moral conditions of freedom.”

James Madison said that men should conduct themselves as if they “have a duty towards the Creator.”  (See his 1786 Memorial and Remonstrance). “This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” he wrote.

Thomas Paine and Benjamin Franklin, two of our most important Founding Fathers, did not necessarily see eye-to-eye on religion. Franklin was raised in a devout Puritan home and Paine was a Deist. As a deist, Paine believed that God created the world but then allowed it to operate according to natural laws. Deists believe God does not intervene in the lives of his human creations. Rather, morality should come from reflecting on benevolence of God in creating such a perfect and finely-ordered world. Franklin, on the other hand, believed strongly in an active, ever-present God.

Although Franklin was raised in a devote Puritan home, he did not fully embrace the Calvanism of his upbringing. As an adult, he put his faith in an active God who watched over his natural creation and could, on occasion, intervene in the lives of his human creation as well.

Franklin and Paine often sparred over God’s role in the world and in people’s lives. At one point Mr. Franklin wrote to Mr. Paine to  implore him to put his deist sentiments aside and emphasize the importance of religion in his writings:

   … You yourself may find it easy to live a virtuous life, without the assistance afforded by religion; you having a clear perception of the advantages of virtue, and the disadvantages of vice, and possessing a strength of resolution sufficient to enable you to resist common temptations. But think how great a portion of mankind consists of weak and ignorant men and women, and of inexperienced, inconsiderate youth of both sexes, who have need of the motives of religion to restrain them from vice, to support their virtue, and retain them in the practice of it till it becomes habitual, which is the great point for its security. And perhaps you are indebted to her originally, that is, to your religious education, for the habits of virtue upon which you now justly value yourself. You might easily display your excellent talents of reasoning upon a less hazardous subject, and thereby obtain a rank with our most distinguished authors. For among us it is not necessary, as among the Hottentots, that a youth, to be raised into the company of men, should prove his manhood by beating his mother.

         If men are so wicked with religion (as Paine often complained), what would they be if without it. I intend this letter itself as a proof of my friendship, and therefore add no professions to it; but subscribe simply yours,

Ben Franklin

In other words, he argues that because God is active in the affairs of man, there is pressure for men to keep virtuous.  Religion, he explains, is a check on the pernicious tendencies of man.

Benjamin Franklin indeed believed in an active God who presided over the destinies of his creations and was involved in the affairs of men. He would write: “Without the Belief of a Providence that takes Cognizance of, guards and guides, and may favour particular Persons, there is no Motive to Worship a Deity, to fear its Displeasure, or to pray for its Protection.” That is why he believed that faith and prayer were essential in order that Providence continue His blessings on our nation. He also believed that God answered prayer. In July 1787, during the meeting of the Constitutional Convention in Philadelphia when tempers were flaring among the delegates, Franklin called for prayer to bring reconciliation to the political differences of the body.  As James Madison noted in his Journal from the of the Constitutional Convention, the distinguished 86-year-old delegate from Philadelphia delivered the following words:

Mr. President,

        The small progress we have made after four or five weeks close attendance and continual reasonings with each other, our different sentiments on almost every question, several of the last producing as many ‘nays’ and ‘ays,’ is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, some we have been running about in search of it. We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.

         In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings?  In the beginning of the Contest with Great Britain, when we were sensible of danger we had daily prayer in this room for the divine protection. Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a Superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth- that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?  We have been assured, Sir, in the sacred writings, that ‘except the Lord build the House they labour in vain that build it.’  I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and bye word down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments be Human Wisdom and leave it to chance, war and conquest.

        I therefore beg leave to move, that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of the City be requested to officiate in that service.

Roger Sherman, delegate from Connecticut, seconded the motion.

While many refer to the 55 delegates to the Constitutional Convention and those men, like Thomas Jefferson and John Adams, who drafted the Declaration of Independence as our “Founding Fathers,” the term (or group) actually includes many others, such as those whose actions and writings led to the American Revolution.  However, for this discussion, it is worth noting that this core group of 55 delegates to the Constitutional Convention  represents the general religious sentiments of those who shaped the political foundations of our nation. As confirmed by public record, the delegates to the Convention included 28 Episcopalians, 8 Presbyterians, 7 Congregationalists, 2 Lutherans, 2 Dutch Reformed, 2 Methodists, 2 Roman Catholics, 1 unknown, and 3 deists (those who believe that God created the world but then allowed it to operate according to natural laws. Deists believed God did not intervene in the lives of his human creation). Overall, 93% of the delegates were members of Christian churches. And all – that is, a full 100% – were deeply influenced by a biblical view of mankind and government.

Where did our biblical view of mankind and government come from?  It stemmed from the Christian roots of our thirteen original colonies.  Beginning in the seventeenth century, settlers from Spain, France, Sweden, Holland, and Great Britain claimed land in the New World and formed colonies along its eastern coast. Spain controlled the West Indies. The French owned land from Quebec all the way down to the end of the Mississippi River in New Orleans. And the British colonized most of the Atlantic coast from Massachusetts down to Georgia.

The first permanent settlement was the English colony at Jamestown, which was established in 1607 in what is now Virginia. Similar to the other colonial charters granted by Britain, the First Charter of Virginia emphasized the Christian character of the colony’s purpose. The Charter read: “We, greatly commending and graciously accepting of, their desires for the furtherance of so noble a work, which may, by the providence of Almighty God, hereafter tend to the glory of His Divine Majesty in the propagating of the Christian religion to such people as yet live in darkness and miserable ignorance of the true knowledge and worship of God.”

In 1620, the Pilgrims followed and set up a colony at Plymouth, in what is now Massachusetts. Many of the Pilgrim women and children didn’t survive the first winter. Yet they refused to return to England and they refused an opportunity to live in the Netherlands. They wanted the opportunity  to establish a political commonwealth governed by biblical standards where they could raise their children and live according to the teachings of Christ.  The Mayflower Compact, their initial governing document, clearly stated that what they had undertaken was for “the glory of God and the advancement of the Christian faith.”  William Bradford, the second governor of Plymouth, said: “The colonists cherished a great hope and inward zeal of laying good foundations for the propagation and advancement of the Gospel of the kingdom of Christ in the remote parts of the world.”  Plymouth became the first fully self-governing colony.

In June 1630 the Puritan colony of Massachusetts Bay was established. In that year, Governor John Winthrop landed in Massachusetts with 700 people in 11 ships to serve God and establish a pure church – pure in worship and in doctrine.  (The Pilgrims and Puritans wanted to establish a new land where they could live the teachings of the gospel). Massachusetts Bay would begin the Great Migration, which lasted sixteen years and brought more than 20,000 Puritans to New England.  While still on his ship, the Arbella, Winthrop wrote the sermon he would deliver to the new colonists as they were ready to set out and establish their first settlement.  The sermon was titled “A Model of Christian Charity.”  In that sermon, he sought to articulate the reasons for the new colony. He talked about avoiding a shipwreck.  “Now the only way to avoid this shipwreck and to provide for our posterity is to follow the Counsel of Micah, to do Justly, to love mercy, to walk humbly with our God.”  The “shipwreck” that he referred to was the wrath of God that falls on peoples or nations who fail to do God’s will. To avoid the shipwreck, they would have to establish a truly godly society. Winthrop talked about the need to love one another and serve one another – to be merciful, kind, compassionate, sharing, and selfless. This part of the sermon was clearly reminiscent of the Sermon on the Mount.

But the sermon would be remembered for the term he used to coin the Puritan experiment – “A city upon a Hill.”  These words would not only inspire the Puritans that traveled with him, but they would also be used by American presidents hundreds of  years later to yet again inspire Americans to greatness. These were the words that Winthrop delivered to his fellow Puritans as they were ready to disembark from the ship: “For we must consider that we shall be as a City upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a byword throughout the world.”  Indeed when people vow to live according to religious principles and devote themselves to promoting their faith, they invite scrutiny. They place themselves under a microscope, where all too often those who are looking through the lens are looking to find criticism.

In 1638, a colony was established in New Haven, in what is now Connecticut, by Reverend John Davenport and Theophilus Easton. A year later, the Fundamental Orders of Connecticut, often called the world’s first written constitution, was adopted. It read, in part: “For as much as it hath pleased Almighty God by the wise disposition of His Divine Providence so to order and dispose of things that we the inhabitants and residents…; and well knowing where a people are gathered together the Word of God requires that to maintain the peace and union of such a people there should be an orderly and decent government established according to God, to order and dispose of the affairs of the people at all seasons as occasion shall require.”

The same John Winthrop who established the Massachusetts Bay Colony would also lead the first American experiment in establishing a federation. In 1643, he organized the New England Confederation. He wrote that the aim of the colonists of Plymouth, New Haven, Massachusetts, and Connecticut was “to advance the kingdom of our Lord Jesus Christ, and to enjoy the liberties of the gospel thereof in purities and peace.”

In 1683, Rhode Island was established by Christians. Their charter, the Rhode Island Charter of 1683, began with these words: “We submit our person, lives, and estates unto our Lord Jesus Christ, the King of kings and Lord of lords, and to all those perfect and most absolute laws of His as given to us in His Holy Word.”  In 1681, a charter was granted to William Penn, a Quaker, to establish the colony of Pennsylvania. King Charles II granted him a large tract of land in America to repay debts the king owed to Penn’s father. (As it turns out, the tract of land would also include Delaware).  Penn wanted to start a colony where Quakers like himself could live without persecution. He printed advertisements about his colony in six different languages and sent them across Europe. Quakers, Mennonites, Lutherans, Dunkards (Church of the Brethren), Amish, Moravians, Hugenots (French Protestants), Catholics, and Jews from England, Wales, Scotland, Ireland, Sweden, Germany, and Holland began were attracted to his colony. In 1701, he drafted the Pennsylvania Charter of Privileges which gave un unprecedented amount of control to the People in their government. It read, in part:  “All persons who profess to believe in Jesus Christ, the Savior of the World, shall be capable to serve this government in any capacity, both legislatively and executively.”

William Penn was inspired by 1 Thessalonians 4:9 when he established Pennsylvania. (“But concerning brotherly love you have no need that I should write to you, for you yourselves are taught by God to love one another.”)   To emphasize his plan to have a place where Christians would work together, he planned and named their city “Philadelphia,” which is Greek for “City of Brotherly Love.”  His concept was that religion is not to be limited to a Sunday ceremonial ritual, but should be an integral aspect of everyday life, demonstrated by working with others in love and respect.

Perhaps William Penn was inspired by the Puritans. The Puritans believed that religion should form the foundation of their society, in government, education, and work ethic.  The Puritan work ethic placed a high moral value on doing a good job because work has such high intrinsic value. To the Puritan, all of life was to be lived in relation to God, a principle which gave sacred significance to every activity. Work was valued as a vital part of their service and worship to God, and they took the Bible seriously when it said: ‘And whatever you do in word or deed, do all in the name of the Lord Jesus, giving thanks to God the Father through Him.’ (Colossians 3:17)  Just as the Israelites were instructed to work six days and then rest on the seventh (Exodus 20: 9-10), the Puritans regarded work and worship as a lifestyle of obedience to God.

From the first colony at Jamestown to the colonies in Massachusetts to the Pennsylvania colony, the Bible was used as the inspiration and the rule of life and governance in the settlements. The evidence of the profound effect of God’s word and teachings of Jesus Christ on our early Americans and early leaders is overwhelming.

[Other English colonies would spring up all along the Atlantic coast, from Maine to Georgia. As more and more people arrived in the colonies, European countries realized a greater stake in the New World.  Disputes arose over territory. By the 1700s, the countries with the largest presence were England and France. Eventually, the two great nations fought the French and Indian War (1754-1763).  England won and took control of Canada, as well as retaining control of all the English colonies along the eastern coast – the thirteen colonies. (It is the debt from this war that the King and Parliament passed on to the colonists through taxation schemes, inspiring the protests “No Taxation Without Representation !”).  We know how the rest of American history plays out.]

We’ve enjoyed so much freedom for so long that we forget how and why we are able to so enjoy it in the first place. Men and women crossed the Atlantic not to find fertile fields and enjoy successful harvests, but rather to secure liberty for their souls. And specifically, the freedom they were seeking when they established their colonies and their charters was the freedom to worship freely and to live as they wanted to, according to God’s laws.

 

The Founding of Our Country Rests on a Simple Truth –

The founding and settling of our great country rests on a simple truth.  People flocked from all over the world in search of the freedom to establish colonies where they could openly live and govern themselves according to their religious dictates. They didn’t come  here to have Sunday service with their family. They came here for the freedom to incorporate the teachings of the Bible intimately in their everyday life, everyday speech, everyday conduct, everyday worship, and in their very government. The Bible even inspired them in the manner in which to establish their communities. Our earliest settlers, the Pilgrims and Puritans, in particular, carried the secret to successful self-government with them across the Atlantic.  Their greatest contribution was the notion that only a religious and moral people could be trusted to govern themselves successfully. Only a religious and moral people could be trusted with liberty.

Our children are taught in school that the Pilgrims were a group of stoic, starched creatures in black and white clothes with shiny buckled black shoes and hats who had a successful harvest which inspired them to share their bounty with the Indians, who had helped them become successful farmers. They are the group that gave us Thanksgiving. Our children are never taught the real legacy of the Pilgrims. The truth is that they were devout, hard-working, family-loving, persevering people who were committed to establishing a successful colony based on self-government and religious freedom.

The Pilgrims were part of the Puritan movement (a separatist movement, from the Church of England). They became spiritually aware when the printed English Bible became available. They could read the gospel of Jesus Christ firsthand and not have to wait to hear scripture read in the Church, headed by the King of England. This relatively small band of men, women, and children had a strong desire to serve God as they saw fit, free from the Church of England and the religious policies of the King.  Being identified as “separatists” or “purists” made them potential traitors to the Crown and made them outcasts.  In order to exercise religious freedom, they would have to leave England, settle in Holland (perhaps one of the only places they could be free from persecution) for eleven years, and eventually make their way back to England to commission a ship to take them to the New World. They faced many trials and tribulations along the way, including imprisonment. Finally, the Pilgrims were able to commission two ships to take them to the New World, one being the Mayflower. Shortly after departing, however, the second ship took on a leak and had to return to England. As a result, not all of the Pilgrims were able to make the journey.

When the Mayflower finally reached the coast of Massachusetts, in 1620, the Pilgrims and members of the crew signed a compact, the Mayflower Compact, before departing the ship. The Compact expressed  their desire to be rid of British law and to establish a form of self-government based on just and equal laws and for the advancement of the Christian faith.  In the New World, government would be established to serve their interests and they would be masters of their government, unlike in England, where the government was the master of the people who exist to serve the interests of government.

The Pilgrims ordered their society on eternal truths, including faith, morality, justice, mercy, and education. In fact, there is an enormous granite monument erected in Plymouth, MA, to memorialize their dependence on these truths.  The monument is called “The National Monument to the Forefathers in Plymouth, MA.” It is also referred to as “The Pilgrim’s Monument” or the “Matrix of Liberty.”

The “Matrix of Liberty” is structured and built to show the interdependence of these truths. The center of the monument is a giant women holding a Bible and pointing to the Heavens.  She is Faith.  At each of the four corners of the base of the monument is a pillar, representing Morality, Law, Education, and Liberty.  The pillars have a certain order, starting with Morality and ending with Liberty.

Looking at the monument in sequential fashion, one can understand the ordered foundation of the Pilgrim society.

Faith –  She is pointing to God because her faith is in the God of the Bible and in Jesus Christ. She is holding the Geneva Bible which is open, indicating that she is actively reading it.  She has a star on her forehead to signify that she has wisdom, which comes from the Bible. She believes in Jesus Christ, who was sent to Earth to set man free.  The first pillar is faith.  Faith is necessary for all the other pillars.

Morality –  The statue is of a woman with no eyes, holding a Bible.  She has no eyes to signify that morality is an internal characteristic.  Morality means the “heart is right.”  To achieve morality, the heart must be transformed according to the word of God.

Law –  The statue is of a woman holding the scales of justice. There must be some degree of order in society and order is established by a set of laws.  Laws are based on God’s law.  They protect and promote goodness and punish and prevent evil. Hence, law must be morally just.  She is holding the scales of justice to indicate that the law applies equally to everyone.  Laws must be fair and equitable. Punishment, for example, must be in set in fair relation to the offense.  Finally, society should be merciful, just as God offers mercy and grace.

Education –  The statue is of a mother teaching her children. She is holding an open Bible and pointing to the Ten Commandments.  Parents should educate and train their children in morality and religion so that they will grow up to be responsible citizens, capable of maintaining a free and ordered society.

Liberty –  The statue is of a chiseled warrior, carrying a sword and draped in the skin of a lion. The lion’s head is draped over his shoulder.  He is called “Liberty Man.” The sword represents strength and the lion represents tyranny.  The man is strong because he has faith and is moral.  He has been educated and has defeated tyranny because his laws are strong and just.  If all the other pillars are promoted in society, its people can be trusted with their self-government and will be strong enough to pass on liberty to the next generation. In other words, Liberty Man is the result of obeying the “Matrix of Liberty.”

The so-called “Matrix of Liberty,” and the values and priorities it represents, is the real legacy of the Pilgrims. Not the black and white dress or suit with the shoes with the black buckle.  Not the hair up in a bun with a white kerchief or the turkey feast.  Yet no one celebrates this.  Public schools only teach about the successful harvest, and not the successful formula for self-government and religious liberty.

The Pilgrims were British subjects looking for religious liberty, yet with the Mayflower Compact, they devised a special formula to protect all liberty. The Compact created a system of self-government for their colony but the key was in effective individual self-government. Together, it was a special formula. At the core of that formula is the recognition that only a religious and moral people can be entrusted with the responsibility of securing so great a gift as Liberty.  This is America’s Christian heritage.  Our Christian heritage is the reason we have a government system centered around the individual, bound to protect his sovereign rights, and sufficiently limited in order that people can govern their lives and organize their communities according to appropriate values.  Our Christian heritage is inextricably connected to our founding principles. [The word “principle,” deriving from a Latin root, means “first things”]

We see how American leaders throughout our history have acknowledged and emphasized the importance of this heritage. We see how the belief in America’s Providential destiny inspired almost all of our great patriots and fighting men and women.

Take Nathan Hale, for example. Nathan Hale (1755-1776) was a young school teacher when the Revolutionary War broke out in April 1775 at Concord and Lexington. Nathan’s friend witnessed the siege of Boston and wrote a letter in which he said: “Our holy religion, the honor of our God, a glorious country, and a happy constitution is what we have to defend.”  Soon after receiving that letter, Hale joined his five brothers and they fought for America’s independence in the Revolutionary War. He quickly rose to the rank of captain.

Hale fought under General George Washington in New York at the time British General William Howe was building up his troops on Long Island. Washington took his army onto Manhattan Island. At the battle of Harlem Heights, he asked for a volunteer to go on a spy mission behind enemy lines and it was Hale who stepped forward.  For a week, he went unnoticed and gathered information on the position of British troops. While trying to return to the American side, however, he was captured. Because of the notes and incriminating papers that Hale on his person, the British immediately knew he was a spy. Howe ordered the 20-year-old Nathan Hale to be hanged without a trial.

Widely regarded as America’s first spy, patriot Nathan Hale was hanged on September 22, 1776. As a last request, he asked for a Bible and some paper to write letters to his loved ones. He was denied the Bible but was able to write letters. The British read what he wrote and in an act of cruelty, destroyed them. It was told that they didn’t want future Americans to know what a truly devout and honorable man he was. Before he gave his life for his country, he made a short speech which ended with these famous words: “I only regret that I have but one life to lose for my country.”

George Washington himself believed that America was under the divine protection of Providence and was destined to win its revolution against Great Britain. During the war, he wrote to Reverend William Gordon:  “No man has a more perfect reliance on the all-wise and powerful dispensations of the Supreme Being than I have, nor thinks His aid more necessary.”  He issued General Orders on May 2, 1778 to his troops, instructing that “While we are zealously performing the duties of good Citizens and soldiers we certainly ought not to be inattentive to the higher duties of Religion. To the distinguished Character of Patriot, it should be our highest Glory to add the more distinguished Character of Christian. The signal Instances of providential Goodness which we have experienced and which have now almost crowned our labours with complete Success, demand from us in a peculiar manner the warmest returns of Gratitude and Piety to the Supreme Author of all Good.”

When his army, the Continental Army, disbanded on June 14, 1783, Washington wrote a letter – an “Earnest Prayer” – to the governors of the thirteen states. In that letter, he said: “The task is now accomplished. I now bid adieu…. I now make it my earnest prayer that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to government, to entertain a brotherly affection and love for one another, for their fellow-citizens of the United States at large, and particularly for brethren who have served in the field; and finally that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind, which were the characteristics of the Divine Author of our blessed religion, and without an humble imitation of whose example in these things, we can never hope to be a happy nation.”

After serving two terms as our nation’s first president, Washington delivered a heart-felt farewell address (1796), offering words of wisdom for the country he loved and devoted his entire life: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them.”

President Calvin Coolidge would later offer these words about our great General and first President: “Washington was the directing spirit, without which there would have been no independence, no Union, no Constitution, and no republic. . . . We cannot yet estimate him. We can only indicate our reverence for him and thank the Divine Providence which kept him to serve and inspire his fellow man.”

John Jay, the author of five of the Federalist Papers and the first Chief Justice of the Supreme Court, said: “Providence has given to our people the choice of their rulers, and it is the duty and as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”  Jay referred to the United States without hesitation as a “Christian nation.”

Our second president, John Adams, also a co-author of the Declaration of Independence and important founding patriot, believed just as strongly as Washington in the importance of religion and morality in maintaining the integrity of the nation that was so thoughtfully created.  On June 21, 1776, he wrote: “Statesmen may plan for liberty, but it is religion and morality which alone can establish the principles upon which freedom can securely stand.  The only foundation of a free constitution is pure virtue, and if this cannot be inspired into our people in great measure, than they may change their rulers and their forms of government but they will never obtain lasting liberty.”

In a letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts on October 11, 1798, President John Adams wrote these famous words: “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

What Adams was saying was not theological or religious but pragmatic. He was declaring that religion is necessary to maintain national morality; not that it’s some mystic force that favors believers over non-believers. Adams was advising future Americans how to continue to secure their liberty and happiness. “Let us with caution indulge the supposition that morality can be maintained without religion,” George Washington once wrote.  ”Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

When Thomas Jefferson ran for president in 1799, Jedidiah Morse preached an insightful Election Sermon on the importance of religion. Morse (1761-1826) was a member of the clergy, an educator, and the father of Samuel Morse, inventor of the telegraph and the Morse Code.  In his Sermon, he asked what would happen if the religious foundations were destroyed:

“Our dangers are of two kinds – those which affect our religion and those which affect our government. They are, however, so closely allied that they cannot, with propriety, be separated. The foundations which support the interest of Christianity are also necessary to support a government like our own, designed to protect freedom and equality…..

      To the kindly influence of Christianity we owe that degree of civil freedom and political and social happiness which mankind now enjoys. In proportion as the genuine effects of Christianity are diminished in any nation, either through unbelief or the corruption of its doctrine, or the neglect of its institutions, the same proportion of the people will recede from the blessings of genuine freedom and experience the miseries of complete despotism. I hold this to be a truth confirmed by experience.  If so, it follows that all efforts made to destroy the foundations of our holy religion will ultimately tend to subvert our political freedom and happiness. Whenever the pillars of Christianity shall be overthrown, our present republican forms of government, and all the blessings which flow from them, must fall with them.”

There was a time when the laws of God were taken into consideration in US courts. In 1802, Judge Nathaniel Freeman delivered the following charge to the Massachusetts Grand Juries: “The laws of the Christian system, as embraced by the Bible, must be respected as of high authority in all our courts, and it cannot be thought improper for the officers of such government to acknowledge their obligation to be governed by its rule…..  Our government, originating in the voluntary compact of a people who in that very instrument profess the Christian religion, it may be considered, not as the republic Rome was, a pagan republic, but as a Christian republic.”

There was also a time when children were taught about American’s founding values and in particular, how religious principles are linked to liberty. Noah Webster (1758-1843) was an American lexicographer, textbook author, political writer, and editor. He has been called the “Father of American Scholarship and Education.”  In his public school textbook History of the United States, published in 1832, he included:

“Almost all the civil liberty now enjoyed in the world owes its origin to the principles of the Christian religion. It is the sincere desire of the writer that our citizens should early on understand that the genuine source of correct republican principles is the Bible, particularly the New Testament or the Christian religion.

       The religion which has introduced civil liberty is the religion of Christ and his Apostles, which enjoins humility, piety, and benevolence; which acknowledges in every person a brother or a sister, and a citizen with equal rights. This is genuine Christianity, and to this we owe our free constitutions of government.

       The moral principles and precepts contained in the Scriptures ought to form the basis of all of our civil constitutions and laws….  All the miseries and evils which men suffer from – vice, crime, ambition, injustice, oppression, slavery, and war – proceed from their despising or neglecting the precepts contained in the Bible.”

Of course, when Webster was referring to the biblical basis of civil liberty, he was referring to Luke 10:27 (“You shall love… your neighbor as yourself.”)

Robert Winthrop, a lawyer who served as the Speaker of the US House from 1847-49, delivered an address to that body in which he talked about the foundation on religion that was needed to forge the moral strength needed to support our free institutions and our nation:

“The voice of experience and the voice of our own reason speak but one language….  Both united in teaching us that men may as well build their houses upon the sand and expect to see them stand, when the rains fall and the winds blow and the floods come, as to found free institutions upon any other basis than that of morality and virtue, of which the Word of God is the only authoritative rule and the only adequate sanction.

        All societies of men must be governed in some way or other. The less they have of stringent state government, the more they must have of individual self-government. The less they rely on public law or physical force, the more they must rely on private moral restraint.

       Men, in a word, must necessarily be controlled either by a power within them or a power external to them; either by the Word of God or by the strong arm of man; either by the Bible or the bayonet.

       It may do for other countries and other governments to talk about the state supporting religion. Here, under our own free institutions, it is religion which must support the state.”

Daniel Webster (1782-1852), a leading American statesman, was known as being one of our greatest orators. He served as a US congressman and then senator, and even as Secretary of State under three different presidents. In a speech given before the Historical Society of New York on February 23, 1852, he talked about the need of religion for continued happiness and prosperity:

“If we and our posterity shall be true to the Christian religion, if we and they shall live always in the fear of God and respect His commandments, if we and they shall maintain just moral sentiments and such conscientious convictions of duty as shall control the heart and life, we may have the highest hopes of the future fortunes of our country; and if we maintain those institutions of government and that political union, exceeding all praise as much as it exceeds all former examples of political associations, we may be sure of one thing… that while our country furnishes material for a thousand masters of the historic art, it will afford no topic for a Gibbon. It will have no decline and fall. It will go on prospering and to prosper. 

       But if we and our posterity reject religious institutions and authority, violate the rules of eternal justice, trifle with the injunctions of morality, and recklessly destroy the political constitution which holds us together, no man can tell how sudden a catastrophe may overwhelm us that shall bury all our glory in profound obscurity.”

Theodore Roosevelt, the 26th President of the United States, hit on the same theme in 1917 when he delivered the following address to the nation:

“The most perfect machinery of government will not keep us as a nation from destruction if there is not within us a soul. No abounding material prosperity shall avail us if our spiritual senses atrophy. The foes of our own household shall surely prevail against us unless there be in our people an inner life which finds its outward expression in a morality not very widely different from that preached by the seers and prophets of Judea when the grandeur that was Greece and the glory that was Rome still lay in the future.

       In his Farewell Address to his countrymen, George Washington said: ‘Morality is a necessary spring of popular government…. and let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.’

        His words were given expression when the European movement with which the American people were in most compete sympathy – the French Revolution – had endeavored to destroy the abuses of priestcraft and bigotry by abolishing not only Christianity but religion…..   The result was a cynical disregard of morality and a carnival of cruelty and bigotry, committed in the name of reason and liberty, which equaled anything ever done by  Tomas Torquemada and the fanatics of the Inquisition in the name of religion and order. Washington wished his fellow countrymen to walk clear of such folly and iniquity.  As in all cases where he dealt with continuing causes, his words are as well worth pondering now as when they were written….

      In this actual world, a churchless community, a community where men have abandoned and scoff at or ignore their Christian duties, is a community on the rapid downgrade.  It is perfectly true that occasional individuals or families may have nothing to do with church or with religious practices and observances and yet maintain the highest standard of spirituality and of ethical obligation. But this does not affect the case in the world as it now is, any more than that exceptional men and women under exceptional conditions have disregarded the marriage tie without moral harm to themselves interferes with the larger fact that such disregard if at all common means the complete moral disintegration of the body politic.”

As our nation entered the 20th century and assumed its role to protect and enlarge individual liberty around the world, we often wonder how it was that young men could so willingly and selflessly volunteer to fight under the most horrific of circumstances. After World War I, the United States hoped it would never have to see conflict and warfare on that scale again. But on December 7, 1941, with the attack on Pearl Harbor, it was suddenly thrust into a war that was even deadlier, bloodier, and more widespread. 16 million Americans fought in World War II.  Over 406,000 died and over 600,000 were injured. What was it that made these men so willing to put their lives on the line for their country?

The answer can probably be explained, at least in part, by the story of one young marine, Mitchell Paige. Paige was awarded the Congressional Medal of Honor for his actions at the Battle of Guadalcanal in the Solomon Islands.  In that battle, US Marines took control of the airfield from the Japanese. On October 26, 1942, Paige held his position even after all of the other Marines in his platoon were killed or wounded. He continued to operate four machine guns by himself for hours even after the last fellow Marine fell.  He single-handedly stopped an entire Japanese regiment. Had the American position been compromised and the airfield returned to Japanese hands, it is possible that the outcome of the war in the Pacific and even the entire war would have changed.

In the years following, Paige was repeatedly asked why he was willing to put his life on the line for his country. He repeatedly referred to his “undying love of country.”  He said that the answers took him back to a Pennsylvania three-room country school where the children were so steeped in the traditions of America that they literally felt themselves a part of a glorious heritage, where the teacher opened the school day with a Bible verse and the Pledge of Allegiance, and where they memorized all the great documents that established the bedrock of America, such as the Gettysburg Address.  He believed he was blessed by God by living in the United States.

General Douglas MacArthur, Supreme Commander of the Allied Forces in the Pacific during WWII, knew that religion was indispensible to the character of America (and to his fighting men) but also could see a progressive decay that was stemming from government. In December 1951, he delivered these words of warning: “In this day of gathering storms, as moral deterioration of political power spreads its growing infection, it is essential that every spiritual force be mobilized to defend and preserve the religious base upon which this nation is founded; for it has been that base which has been the motivating impulse to our moral and national growth. History fails to record a single precedent in which nations subject to moral decay have not passed into political and economic decline. There has been either a spiritual reawakening to overcome the moral lapse or a progressive deterioration leading to ultimate national disaster.”

On Flag Day, June 14, 1954, President Dwight D. Eisenhower signed into law Joint Resolution 243 which added the phrase “One Nation Under God” to the Pledge of Allegiance. Commenting on the Resolution, Eisenhower stated: “In this way we are reaffirming the transcendence of religious faith in America’s heritage and future. In this way we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.”

Although the federal courts were in high gear at this time using the “Wall of Separation” to take the Ten Commandments, prayers, bible lessons, and moments of silence out of the classrooms and to take nativity scenes, crosses, and bible verses off of every public building and out of every public square, our national leaders continued to acknowledge the religious principles that founded our nation and inspired its founding documents. In a speech given in February 1961, President John F. Kennedy spoke about our nation’s guiding principle:

“This country was founded by men and women who were dedicated or came to be dedicated to two propositions: first, a strong religious conviction, and secondly, a recognition that this conviction could flourish only under a system of freedom.

       I think it is appropriate that we pay tribute to this great constitutional principle which is enshrined in the First Amendment: the principle of religious independence, of religious liberty, of religious freedom. But I think it is also important that we pay tribute and acknowledge another great principle – that of religious conviction. Religious freedom has no significance unless it is accompanied by conviction. And therefore the Puritans and Pilgrims of my own section of New England, the Quakers of Pennsylvania, the Catholics of Maryland, the Presbyterians of North Carolina, the Methodists and the Baptists who came later… all shared these two great traditions which, like silver threads, have run through the warp and the woof of American history.

       No man who enters upon the office to which I have succeeded can fail to recognize how very president of the United States has placed special reliance upon his faith in God. Every president has taken comfort and courage when told that the Lord ‘will be with thee. He will not fail thee nor forsake thee. Fear not – neither be thou dismayed.’  While they came from a wide variety of religious backgrounds and held a wide variety of religious beliefs, each of our presidents in his own way has placed a special trust in God. those who were strongest intellectually were also strongest spiritually.

      Let us go forth to lead this land that we love, joining in the prayer of General George Washington in 1783, ‘that God would have you in His holy protection, that He would incline the hearts of the citizens to entertain a brotherly love and affection for one another…. and finally, that He would most graciously be pleased to dispose us all to do justice, to have mercy, and to demean ourselves with the characteristics of the Divine Author of our blessed religion, without who we can never hope to be a happy nation.’  

       The guiding principle and prayer of this nation has been, is now, and shall ever be “In God We Trust.”

In proclaiming the National Day of Prayer, on December 5, 1974, President Gerald Ford quoted President Eisenhower’s 1955 message: “Without God there could be no American form of government, nor an American way of life. Recognition of the Supreme Being is the first – the most basic – expression of Americanism. Thus, the Founding Fathers of America saw it, and thus with God’s help, it will continue to be.”

In August 1984, President Ronald Reagan spoke at an ecumenical prayer breakfast in Dallas and talked about the importance of faith to the future and fate of our country:

“We establish no religion in this country, nor will we ever. We command no worship. We mandate no belief. But we poison our society when we remove its theological underpinnings. We court corruption when we leave it bereft of belief. All are free to believe or not believe; all are free to practice a faith or not. But those who believe must be free to speak of and act on their belief and to apply moral teaching to public questions.

       I submit to you that the tolerant society is open to and encouraging of all religions. And this does not weaken us; it strengthens us….

       Without God, there is no virtue because there is no prompting of the conscience. Without God, we’re mired in the material that a flat world tells us only what the senses perceive. Without God, there is a coarsening of society. And without God, democracy will not and cannot long endure. If we ever forget that we’re One Nation Under God, then we will be a nation gone under.”

In his Second Inaugural Address, in 1985, President Reagan once again referred to the Divine inspiration that shaped our nation:

“History is a ribbon, always unfurling.. History is a journey. And as we continue our journey, we think of those who traveled before us.  Now we hear again the echoes of our past: a general falls to his knees in the hard snow of Valley Forge; a lonely president paces the darkened halls and ponders his strength to preserve the Union; the men of the Alamo call out encouragement to each other; a settler pushes west and sings a song and the song echoes out forever and fills the unknowing air.

       It is the American sound. It is hopeful, big-hearted, idealistic, daring, decent, and fair. That’s our heritage; that is our song. We sing it still. For all our problems, our differences, we are together as of old, as we raise our voices to the God who is the Author of this most tender music. And may He continue to hold us close as we fill the world with our sound – sound in unity, affection, and love – one people under God, dedicated to the dream of freedom that He has placed in the human heart, called upon now to pass that dream on to a waiting and hopeful world.”

Our Christian Heritage  –

What exactly do we mean by “Our Christian Heritage”?

We certainly don’t refer to it as a way to suggest that Christianity be the official religion of the United States.  We have the First Amendment to protect us from the establishment of any one religion, so that our religious conscience is free from the coercion or criticism of other religions (or non-religion) and no one is forced to support an offensive religion with their tax dollars.

Our Christian heritage finds its roots in the very foundation of our government. Its principles and values affect many aspects of our lives, none more profoundly than the very form of government that we enjoy and benefit from.  The concept of the sovereign person, being “created in God’s image,” the inherent dignity of every human being, tolerance towards others, charity, service, equality before the law, and personal responsibility all come from the Christian message. Every person, old or young, strong or weak is equal before the Lord.

Religion plants the seeds of morality and ethics. It promotes strong families, which are the bedrock of a healthy, ordered, productive society.  It gives the representative a servant’s heart.  It sets guidelines for conduct that benefit society as a whole.  It structures government that is closest to the individual, where it can be most responsive.  It establishes notions of fairness and equity.  It establishes proper priorities for a strong community. When we speak today of the Christian heritage, we speak of institutions (mostly government) that come from the Hebrews and values that we owe to the Judeo-Christian culture. The basis of our law comes from Natural Law and from God’s Law.

In other words, religion provides the foundation of good (personal) self-government so that our governments, federal and state, can effectively resign themselves to their essential tasks and stay out of the lives of its citizens as much as possible.

There is no clearer expression of  our Christian roots than in our very Declaration of Independence.  The Declaration, adopted by the Second Continental Congress on July 4, 1776, declared that the 13 American colonies were “free and independent States” and that “all political connection between them and the State of Great Britain is and ought to be totally dissolved” (ie, secession). But for us, as citizens, it is an enduring proclamation of our rights and our superior status with respect to government. In it, our Founding Fathers were quick to protect our fundamental rights – the Rights to Life, Liberty, and the Pursuit of Happiness – in the most secure manner they knew – by explaining that God, as the Creator of the Universe and Man, is the source of those rights. Because individual rights derive from man’s relationship with his Creator and not from any government, government has no right to take them away. In fact, as the Declaration states in the second paragraph, the primary purpose of government is to protect and secure man’s inalienable rights in an organized society. The placement of Judeo-Christian values and biblical morality into our founding documents and laws was clearly intentional.  As Benjamin Rush, a delegate from Pennsylvania and one of the signers of the Declaration, said: “Without religion there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.”

While most people are quick to note the religious roots in the second paragraph of the Declaration, it is the first paragraph which immediately justifies the independence of the American people on the laws of God. The first paragraph reads:

When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with one another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

The Declaration proclaimed “to a candid world” that in the United States of America, the power over natural rights vests in the Individual and not in any government. The decisions regarding the exercise of Life, Liberty, and the Pursuit of Happiness, as well as the right to protect and defend them, belong to the People.  These individual rights are so important, according to our nation’s Founders,  that government’s primary function must be to protect them.  Furthermore, in order that government can never assume any power that the People don’t want it to have, the Declaration states that governments are to instituted among Men, deriving their just powers from the consent of the governed. This is our doctrine of Individual Sovereignty. Never before had any country adopt such a progressive idea!  Rights had always been enjoyed at the mercy of a King (such as the Magna Carta) or granted as seen fit by governments. In the US, power vests originally and inalienably in the People and as such, the People can reclaim it.  This doctrine was offered as justification for the American Revolution and provided the basis for our grand American experiment. The message in the Declaration is clear – the responsibility over government is given to the People and with them alone rests the security of their freedom.

Just so the people would fully understand, and maybe more importantly that lawyers would never be confused, the term “Laws of Nature and of Nature’s God” was defined by renown jurist and legal writer Sir William Blackstone, as well as other legal scholars, as the laws that God, as Creator of the universe, had established for the governance of people, nations, and nature. Blackstone’s Commentaries on the Law, which was the primary legal treatise of the time and the one on which the Founders relied, explained “the laws of nature” as the will of God for man, which can be ascertained by people through an examination and understanding of God’s creation, the text of the Bible, and to a certain degree, instinct or reason (reason being the one gift given to man when he was “created in His image” to separate him from the beasts and other creatures). Blackstone wrote:

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being…  And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the Law of Nature.  This Law of Nature, being coeval (co-existent) with mankind and dictated by God Himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this…..

       And if our reason were always clear and perfect, the task would be pleasant and easy. We should need no other guide but his (the Law of Nature). But every man now finds the contrary in his own experience; that his reason is corrupt, and his understand full of ignorance and error. This has given manifold occasion for the benign interposition of Divine Providence, which hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered are what we call the Revealed or Divine Law, and they are to be found only in the Holy Scriptures….

      Upon these two foundations, the Law of Nature and the Law of Revelation, depend all human laws; that is to say, no human laws should contradict these.”

Frederick Douglass (1818-1895), a leading abolitionist and perhaps the most prominent African-American in pre-Civil War history, stated: “The Declaration of Independence is the ring-bolt to the chain of your nation’s destiny; so, indeed, I regard it. The principles contained in that instrument are saving principles. Stand by those principles. Be true to them on all occasions, in all places, against all foes, and whatever cost.”

The Framers of the US Constitution did not establish the federal government to “do good.”  Rather, the government was to perform certain functions that would benefit all the states equally so that they could act like they were part of a Union rather than a group of independent States, each duplicating certain key functions.  In fact, as a first principle, our Founders took great pain to make sure that government would “do no harm” – to either the States or to the Individual.  In his first inaugural address, in 1801, Thomas Jefferson defined “the sum of good government” as “a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”

Government’s primary responsibility, as outlined in Article I, Section 8 is to defend the nation from attack, to maintain an Army and Navy, to declare war, to establish a uniform policy on immigration, to coin money, to promote intellectual property (useful arts), to regulate commerce, to establish a post office, and the like. In other ways, thanks to the Bill of Rights and the symbiosis with the Declaration of Independence, government has a pronounced subsidiary role: to help promote Life, Liberty, and the Pursuit of Happiness, to support the work of the families, religious communities, and other institutions of civil society that shoulder the primary burden of forming upright and decent citizens, caring for those in need, encouraging people to meet their responsibilities to one another while also discouraging them from harming themselves or others or misappropriating the property of others.

Governmental respect for individual freedom and the autonomy of non-governmental spheres of authority is, then, a requirement of political morality. Government must not try to run people’s lives or usurp the roles and responsibilities of families, religious bodies, and other character- and culture-forming authoritative communities. The usurpation of the just authority of families, religious communities, and other institutions is unjust in principle… often seriously so.  And that’s why the record of big government in the twentieth century is not a successful one. It has done very little good in the long run (other than protecting people from exploitation in labor and regulating for the health and safety in food/drugs) and in fact, has caused more harm to society than good.  Never before has there been such a deficit of character and morality.

Our Founding Fathers knew that if God should ever be taken out of the nation’s value system, our rights as citizens would no longer be absolute and they would instead become subject to the relative values of those who are in a position to make or change the laws… such as Congress, a scheming president, or activist judges. Universal moral laws that promote the good of all people, as individuals (not as a collective), and that protect the innocent and vulnerable are slowly and steadily eroded when government declares that it is not supposed to legislate morality. When that happens, there is necessarily a paradigm shift.  There is such a shift because the opposite of morality is immorality. If government doesn’t legislate to serve moral ends, then it legislates for immoral ones. Soon, the government assumes the moral (or immoral) license to do what it thinks best.

Much has been written in recent years to try to dismiss the fact that America was founded upon Judeo-Christian Biblical principles. But this is merely part of a larger attempt by progressives to revise our history and use it in the teaching (indoctrination) of our youth to engineer a “new” America – an America not defined by her founding principles and values.

This is not to say that all of the Founding Fathers were Christians. Clearly, some were not. But what is most important is that even those who were not Christians were deeply influenced by the principles of Christianity. Those principles nevertheless helped to shape their political ideals. But without a doubt, there was a predominant Christian consensus in colonial America that shaped the Founders’ thinking and their writing of our founding documents and laws and resulted in the republic that we have today. Atheists may complain about and seek to undermine our Christian heritage, but the right to think and express themselves as they do was granted to them by Christians. Atheists want “good without God” and work tirelessly to remove the spiritual underpinnings that form the framework for our rights, our republic, and our laws. But what they don’t understand is that without the belief and social acknowledgement that our individual human rights are linked to our relationship with God (Creator), then our rights are not secure at all. If rights don’t come from a Creator, then they must come from government. And if they come from government, then they are not inalienable and government is free to take them away when it suits their purposes. That’s why atheists can’t hope to establish a society of their own and are dependent upon the values that come from Christianity.

Bringing the Message Home –

When I was a young girl, I spent a lot of time in the Methodist Church across the street from me. My mother worked both a day and a night job and I didn’t like to be home alone. When I saw the lights on in the church, I would pick up my books and go there. Aside from learning about our Savior’s unconditional love and the power of His act of salvation upon the cross, one message that stood out from my time in the church was that we are to love our neighbors as we love ourselves. Another message I took home from my early days in the church was this: “What you have (health, mind) is God’s gift to you. What you do with them is your gift to God.”  In other words, there is some sort of personal obligation to invest in oneself, develop talents and gifts, become educated, and use them to contribute in some way in order to benefit society as a whole. And in contributing, one should hopefully be mindful to honor and glorify the Father.  In my world, as a young girl, I not only saw religion as a code that established guidelines for conduct and behavior, but I also came to see it as a force that encouraged me to be the best human being possible and to contribute productively to my community.

As I mentioned, my mother wasn’t around much and certainly I didn’t see much of my father as well. I didn’t have an authoritarian figure to watch over me night and day.  I barely had one for a few hours at the end of the day. Yet I did well in school, never missed a day, never got in trouble, never broke a law, and never caused my mother any grief.  Why?  Because I was able to govern myself successfully. I had an internal system of laws that restrained my conduct and helped me understand what was right and wrong.

Isn’t this what the Pilgrims had in mind?  Isn’t this what our Founders had in mind?

Imagine if all children and young adults had the same kind of influence in their lives as I had.

A few weeks ago, I was fortunate enough to listen to some remarks that Pitt County district court Judge Brian DeSoto delivered to a group of conservatives.  He began by reading from the Declaration of Independence: “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.” Brian emphasized that the Declaration only recognizes the right to pursue happiness; it doesn’t recognize a right to happiness. As he explained, our Founders were wise enough to understand that the right to happiness was a recipe for disaster. That, in fact, was a government philosophy embraced in Europe but one  that was explicitly rejected by our Founders.

I got to thinking what these two messages – the Declaration’s use of “pursuit” and the message I took from my church as a young girl – have in common. Both are based on Natural Law; that is, the natural basis of our humanity. They are both grounded on the notion that Man has free will and understands the consequences of his actions.

Freedom, like life itself, is a gift.  They are precious gifts indeed and ultimately provide us with the opportunity to reach our full human potential. But because they are based on the exercise of free will, we as individuals have to take responsibility. If we want to honor God with our life and our deeds, then we have to make the necessary choices.  We have to develop the gifts we are given.  If we want to enjoy property and happiness, we must first pursue them, which means we’ll first need to invest some energy, hard work, sacrifice, and perhaps creativity and/or ingenuity.  If we wish to preserve our rights as individuals for our posterity, we must take a good look at the government we have allowed to govern us.

Success (as embodied in the term “Happiness”) is not always easily achievable. It demands sacrifice. The person who sets out to find success understands that he may also fail. But it is in the “pursuit” that we find the greatest exercise of freedom.  And freedom is always worth the risk.  Once freedom is gone, people rarely get it back.  Going back to Judge DeSoto’s remarks, if our government takes away the right to fail, as it has been doing with its growing entitlement programs, individuals cease exercising their free will.  If individuals cease to exercise their free will, government will fill the gap and take away fundamental individual rights.

John Calhoun, the controversial Senator from South Carolina who wrote exquisite expositions on America’s founding principles yet openly supported slavery, perhaps explained it best:

To make equality of condition essential to liberty would be to destroy both liberty and progress. The reason is, that inequality of condition, while it is a necessary consequence of liberty, is, at the same time, indispensable to progress. In order to understand why this is so, it is necessary to bear in mind, that the main spring to progress is, the desire of individuals to better their condition; and that the strongest impulse which can be given to it is, to leave individuals free to exert themselves in the manner they may deem best for that purpose, as far at least as it can be done consistently with the ends for which government is ordained,—and to secure to all the fruits of their exertions. Now, as individuals differ greatly from each other, in intelligence, sagacity, energy, perseverance, skill, habits of industry and economy, physical power, position and opportunity,—the necessary effect of leaving all free to exert themselves to better their condition, must be a corresponding inequality between those who may possess these qualities and advantages in a high degree, and those who may be deficient in them. The only means by which this result can be prevented are, either to impose such restrictions on the exertions of those who may possess them in a high degree, as will place them on a level with those who do not; or to deprive them of the fruits of their exertions. But to impose such restrictions on the exertions on them would be destructive of liberty,—while, to deprive them of the fruits of their exertions, would be to destroy the desire of bettering their condition. It is, indeed, this inequality of condition between the front and rear ranks, in the march of progress, which gives so strong an impulse to the former to maintain their position, and to the latter to press forward into their files. This gives to progress its greatest impulse. To force the front rank back to the rear, or attempt to push forward the rear into line with the front, by the interposition of the government, would put an end to the impulse, and effectually arrest the march of progress.

It’s true that our Bill of Rights do not necessarily encompass all the rights that individuals today believe they are entitled to. What they do is define a minimum moral standard. What we do with our freedom after meeting that minimum moral character is what determines the type of society we live in and the moral character of the nation. For example, welfare rights are not morally justified. To allow people to live and procreate on other people’s money is simply immoral. Taking money away from one family for another is unethical. As Thomas Jefferson once said: “To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical.”

It was the exercise of free will that enabled our 236-year-old country, conceived in freedom and liberty, into the wealthiest, the most productive, the most creative, the most industrious and the most generous nation on Earth. Likewise, it will be the exercise of free will that will determine whether people will live their lives to honor God and help to restore the values upon which our nation was grounded.

In Conclusion –

The results are in…..  Everywhere Christianity has been able to penetrate culture and society, it has been successful. It has been so successful that others, such as atheists and extremists, have flocked to Christian empires to enjoy its freedom and prosperity. The humanization that derives from Christianity has touched the heart of civilization and civilization will never be the same again.

Here in the United States, our Christian heritage explains our notions of ordered Liberty and government. The preservation of that liberty has always depended on two things:  a constitution that limits the amount of government in people’s lives and a citizenry that requires little government. We still have our Constitution to protect us from the reaches of government, although the government has jumped into warp speed to redefine the scope of its own powers and to audaciously exceed the power that was originally granted to it by the States and the People – the true sovereigns. What we don’t have is a citizenry that is disciplined enough and moral enough to require as little government as possible. They have not been using their free will wisely or responsibly. When laws are too numerous, they are just as dangerous to the exercise of liberty as having no law at all.

When government and law replace individual manners and morals as the basis for social order, government and the law will fail, and so will society. The task before us is to exercise free will responsibly and in line with certain traditional values so that we can be self-governing citizens capable of preserving liberty and passing that American legacy onto our children and grandchildren.  The task is to limit government and recommit ourselves to a decent civil society.  If we wish to energize the moral state of the union, government will have to return to the principles of freedom and justice that stand behind the Constitution, and people will have to return to moral principles. They will need to demand that government get out of the way and allow religion to permeate their societies in order to establish moral codes and enable individuals to better govern themselves (so that government doesn’t have to).  Only when people can govern themselves successfully can we ever hope of scaling back government and getting it out of our lives and within constitutional bounds.

This won’t happen by itself.  People will have to stand up and do their part.

As Ron Paul warned in his final address to Congress (2012), the American people must return to virtue before the government will trust them with freedom. This statement alone, from a man who liberty-conscious as Dr. Paul, should serve as a wake-up call. He talks about a government “who will trust the people with freedom.”  A good and decent, moral people would have the opposite concern. They would question whether they could trust their government with THEIR freedom.

Raghavan Iyer commented on what he believes to be the current path of the United States:  “There has been a dangerous transition from the idea of a government of limited powers over citizens with inalienable rights to the idea of the unlimited sovereignty and the material welfare of the majority. It is an easy step from here to the perilous position reached by most democracies today, in which individual liberties are violated in the name of national security and prestige at home and abroad, in which the mute and meek are often sacrificed at the alters of public utility and political necessity.”

I hope Americans can return to good.

References:

Diane Rufino, “Kirk Cameron’s Film ‘Monumental’ Reminds Us of Our Christian Heritage,” September 13, 2012.  Referenced at:  http://www.forloveofgodandcountry.com

Maurice Bisheff, Ph.D., “The Moral and Political Thought of Thomas Paine,” The Institute of World Culture, October 14, 2006.  Referenced at: http://www.religionpaine.org/article_bisheff01.html

Message from John Adams to the Officers of the First Brigade of the Third Division of the Militia of Massacusetts, October 11, 1798.  Referenced at:http://www.beliefnet.com/resourcelib/docs/115/Message_from_John_Adams_to_the_Officers_of_the_First_Brigade_1.html

Joseph Ashby, “Is Religion Necessary,” American Thinker, January 3, 2009.  Referenced at:  http://www.americanthinker.com/2009/01/is_religion_necessary.html

Benjamin Franklin’s Letter to Thomas Paine.  Referenced at: http://www.wallbuilders.com/libissuesarticles.asp?id=58

John Fea, “Religion and Early Politics: Benjamin Franklin and His Religious Beliefs,”Pennsylvania Heritage Magazine, Volume XXXVII, Number 4 – Fall 2011.  Referenced at: http://www.portal.state.pa.us/portal/server.pt/community/history/20018/benjamin_franklin_and_his_religious_beliefs/1014592

“Franklin’s Appeal for Prayer at the Constitutional Convention” – http://www.wallbuilders.com/libissuesarticles.asp?id=98

Murray Rothbard, “What Really Happened at Plymouth?,” Lew Rockwell.  Referenced at: http://www.lewrockwell.com/rothbard/rothbard130.html

“‘The City Upon a Hill,’ by John Winthrop: What’s It All About?,” The Historic Present, June 28, 2010.  Referenced at: http://thehistoricpresent.wordpress.com/2010/06/28/the-city-upon-a-hill-and-puritan-hubris/

Robert P. George, “Law and Moral Purpose,” First Things, January 2008.  Referenced at:  http://www.firstthings.com/article/2007/12/001-law-and-moral-purpose-16

Rep. Ron Paul’s Farewell Remarks to Congress –http://abcnews.go.com/blogs/politics/2012/11/ron-paul-departs-with-our-constitution-has-failed/

Michael and Jana Novak, “Washington’s Providence,” Alliance Defending Freedom.  Referenced at: http://www.alliancedefendingfreedom.org/Faith-and-Justice/5-3/Opinion

“Southern Heritage Quotes: John C. Calhoun on Liberty,” The Occidental Dissident, December 12, 2011.  Referenced at: http://www.occidentaldissent.com/2011/12/07/southern-heritage-quotes-john-c-calhoun-on-liberty/

Raghavan Iyer, Parapolitics: Toward the City of Man, Concord Grove Press, Oxford (1979).

Russell Kirk, The Conservative Mind: From Burke to Eliot, Regnery Publishing (2001).