Why the time is right for Nullification, a Question of Relevance

By

Mac McDowell

The debate surrounding Nullification has been on going since the very beginning of the Republic. The first use of Nullification was against the Alien and Sedition Acts. These Acts were used to imprison more than two dozen newspaper editors and essentially shut down free speech. Thomas Jefferson and James Madison wrote the Kentucky and Virginia resolutions declaring that the Alien and Sedition Acts were null and void in those states. All this started in 1798, seven years after the ratification of the Bill of Rights which include the IXth and Xth Amendments. The order of events is important. It can be argued that these last two Amendments in the Bill of Rights we designed to restrain the Federal Government’s power through misuse of the Commerce Clause or Supremacy Clause.  

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.



Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 

In simple language this means that the Supremacy Clause and the Commerce Clause are restrained by the states and the people, that the Federal Government has a very narrow area of responsibility. These two Amendments were added to the Constitution because limiting the powers Federal Government is essential to establish proper balance between the States and the Federal Government. In Federalist Paper 45, James Madison writes:

“The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”

In these words Madison explains that the checks and balances include the several States which gives constitutional weight to the legitimacy of Nullification Resolutions.

Madison also writes;

“Having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States.”

The Federal Government has, in recent decades, seemed to act as if the whole mass of these powers makes the Federal Government the lord and master of the states and the people, and that each is there to serve at their pleasure. Two examples of this over reach are the Environmental Protection Agency’s declaration of the CO2 endangerment finding to shut down cola fired power plants and the U.S. Fish and Wildlife Service shutting down irrigation in the San Joaquin Valley to protect the Delta Smelt. Neither of these areas of law is mentioned in the enumerated powers of the Federal Constitution. Despite this these Federal Government agencies have taken action enforcing these regulatory laws resulting in significant detrimental economic impacts. So, in keeping with the spirit and intent of Amendments IX and X the Federal Government has no business making laws concerning these issues or any issue that is not defined in the Constitution.

For those of you that feel that Nullification is too touchy to pursue, consider that Texas Gov. Rick Perry has already begun this de facto Nullification by refusing to form the state healthcare exchange as required by the Affordable Care Act. California, Arizona, Colorado, Washington and other states have all acted to nullify federal narcotics laws by simply refusing to enforce them (e.g. medical marijuana).  

Efforts to diminish the intent of the IXth and Xth Amendments have focused on the argument that the Bill of Rights (or any other Amendment) cannot alter the text of the Constitution itself. This simply is not the case, for if this were true then the XIII and XIV Amendments would not have corrected the profound birth defect of our Constitution concerning slavery. These two Amendments do alter the language of the Constitution in Article IV where it clearly upholds the institution of slavery and Article I Section II striking the three fifths rule and allowing freed slaves to vote. This brings me back to Nullification.  

In the decade leading up to the War Between the States, fourteen Yankee states passed Nullification Resolutions of the fugitive slave act and other laws pertaining to slavery. It might be argued that these Nullification Resolutions lead to the eventual adoption of the XIII and XIV Amendments which were clearly necessary in the wake of the Supreme Court’s decision in the Dred Scott case.   

In the wake of the Supreme Court decision on the Affordable Care Act there are plans among conservative groups to bring up for debate Nullification Resolutions in all fifty states in the coming state legislative season. Other conservative groups must ask themselves if they wish to be only spectators or do they wish to join in on this debate so as not to be considered irrelevant.

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Mac McDowell is the Host of The Boiling Point radio show which can be heard Saturday mornings from 9-11 CDT on 925thepatriot.com