In the past, we have talked about a Convention of States as a solution to halting the over-reach of a federal government gone mad. That is a possible solution, but I have another.
Just say no.
In other words, nullification.
Unlike a Convention of States, nullification is based not on altering the Constitution but on enforcing it. States that nullify congressional acts or presidential decrees that violate the Constitution would not only be stopping the federal juggernaut at their state borders, but they would also be signalling that the Constitution is so vitally important that it must be enforced.
In the Kentucky Resolution of 1799, Thomas Jefferson called nullification the “rightful remedy” for any and all unconstitutional acts of the federal government.
The federal government may exercise only those powers that were delegated to it. This is made clear by the 10th Amendment: “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.”
Simply stated, nullification recognizes each state’s reserved power to nullify, or invalidate, any federal measure that a state deems unconstitutional.
Nullification is founded on the fact that the sovereign states formed the union, and as creators of the contract, they retain ultimate authority to enforce the constitutional limits of the power of the federal government.
There are several benefits for applying this understanding via nullification: It is a far safer approach for remedying problems caused by violating the Constitution than a constitutional convention; it is based on upholding the Constitution and the founding principles of the Republic; and it can be implemented by individual states, without having to first get two-thirds of the states on board.
Despite the benefits, there are those who insist that nullification is unconstitutional. They argue that the so-called Supremacy Clause of Article VI of the Constitution puts federal laws above state laws and that the Supreme Court has the final say on the constitutionality of federal laws. Both of these claims can be easily dismissed.
Regarding the first claim, the Supremacy Clause does not declare that all laws passed by the federal government are the supreme law of the land, period. A closer reading reveals that it declares the “laws of the United States made in pursuance” of the Constitution are the supreme law of the land.
In pursuance thereof, not in violation thereof. None of the provisions of education, health, welfare, transportation, energy, or even with maintaining secure borders for example, is permissible under any enumerated power given to Congress in the Constitution.
They were not passed in pursuance of the Constitution, therefore they are not the supreme law of the land, and they may be declared null and void by the states.
Alexander Hamilton provided the rationale for this interpretation of this part of Article VI when he wrote in The Federalist, No. 33:
If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] 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 larger 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.
But how about the claim that the Supreme Court has the final say regarding the constitutionality of federal laws or edicts? Thomas Jefferson had something to say about the matter. In 1804, he wrote that giving the Supreme Court power to declare unconstitutional acts of the legislature or executive “would make the judiciary a despotic branch.” He noted that “nothing in the Constitution” gives the Supreme Court that right.
Even Abraham Lincoln, who as president unconstitutionally used his executive power to deny habeas corpus, recognized the lack of constitutional authority for the Supreme Court’s assumption of the role of ultimate arbiter of an act’s conformity with the Constitution.
Lincoln said that if the Supreme Court were afforded the power to declare whether an act of the federal government was constitutional, “the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”
How can anyone read these statements, or the 10th Amendment for that matter, and honestly conclude that any branch of the federal government is intended to be the surveyor of the boundaries of its own power?
Every department of the federal government was created by the Constitution — therefore, by the states — and has no natural sovereignty. No branch can define its own authority. Such a thought is ridiculous and contrary to any theory of popular sovereignty ever enunciated.
If the courts, Congress, or the president possessed such power, it would make them judge, jury, and executioner in every case in which their own act of exceeding constitutional authority is in question.
Look at it this way: If the federal government was “the decider,” what purpose would the 10th Amendment serve? If he’s being honest, even the most optimistic political observer would have to admit that the federal government will continue to expand its powers so long as it is allowed to decide the scope of those powers.
Nullifying unconstitutional federal laws is very achievable, if constitutionalists were to inform themselves of this approach and then pursue it.
Because the understanding is better in some states than it is in the nation as a whole, it is very possible for states to win victories via nullification to stop unconstitutional federal laws that could not now realistically be repealed on the national level.
Although only a relatively small number of states have so far nullified unconstitutional federal laws in the areas of gun control, ObamaCare, NSA surveillance, indefinite detention of civilians, etc., a string of state nullification victories would not only create a bandwagon effect encouraging other states to join the nullification movement, but also contribute to the overall national awakening — shortening the time it otherwise would take to create a constitutionalist U.S. Congress.
A string of nullification victories would also cause Washington to tread more carefully than otherwise in how it might respond to the nullification efforts.
But enacting a string of nullification bills in states across the nation — particularly bills possessing teeth that will be enforced by state officials — will not happen without creating the necessary understanding and activism to get state legislators on board.
And improving Congress to the point where most congressmen begin abiding by their oaths of office will not happen without a national awakening — or at least an awakening in most congressional districts.
But when this national understanding is created, watch out! Congress will begin terminating and phasing out all unconstitutional programs, and the resulting drop in spending will bring the budget into balance without any balanced budget amendment.
In the meantime, a growing number of states will be holding the line against the federal juggernaut at their borders.
American Thinker
March 13, 2021
It’s time for Red States to start nullifying federal law
……Our Founders were extremely wary of federal power and thus created a number of checks and balances to counter it. One of them was the ability by the states to “nullify” federal laws and even Supreme Court decisions.
As we have just discussed, nullification is when a State decides to not abide by a federal law, regulation or even a Federal court ruling by simply refusing to enforce it.
This concept is rooted in the Tenth Amendment to the Constitution, which plainly states that if the states, who are the creators of the federal government, have not specifically given them authority, that authority rests with the states and the people of the state:
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.
Over the last 150 years or so, liberal legislators and judges have violated the Tenth Amendment by illegally expanding the scope and power of the federal government.
We know that Federal power is limited because such powers were actually “enumerated” or listed in Article 1, Section 8 of the Constitution and include actions such as “To lay and collect taxes,” “coin money,” and “raise and support Armies.”
The federal government was not given any role in education, health, welfare, transportation, energy, or even with maintaining secure borders. Not to mention gay marriage or abortion rights. All those issues were left up to the states to decide.
If our founders wanted to expand the federal government into every area of our life, they would not have specifically listed the very few powers they granted it.
Conservative constitutional scholars such as Thomas E. Woods, in his book, Nullification, How to Resist Federal Tyranny in the 21st Century, documents that our Founders believed that if a “law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it.”
The left will scream about such nullification efforts, but they have been engaged in nullifying federal laws for years. For example, all state laws legalizing marijuana are illegal since they’re in conflict with federal narcotic laws, but states have simply refused to enforce these federal laws and so have “nullified” them.
Likewise, states controlled by the left have allowed various cities and counties to become “sanctuaries” in which they refused to abide by federal immigration laws. And no, the Marines were not sent in nor did any state or city even suffer the loss of federal funding.
It is time our side use this tactic as a way of protecting our constitutional rights. Here are some of the issues that could be affected by the concept of nullification:
- Nullify all 1st Amendment Restrictions. States should refuse to enforce all federal edicts and Supreme Court rulings that impinge upon the 1st Amendment protections of our religious freedom, such as efforts by radical gays to force churches, faith based adopting agencies, religious schools, colleges, and businesses to carry out a radical gay and transexual agenda.
- Nullify all federal efforts to undermine the 2nd Amendment. States should nullify all federal laws that compromise the 2nd Amendment such as those being proposed by the Biden team.
- Nullify open border policies. With Biden announcing his intent to grant amnesty to all illegal aliens, combined with his hostility to border security, expect the border to get even more out of control. States should nullify such pro-open border policies and use their resources to stop illegal immigration. The reality is that states were originally involved in setting immigration policy and indeed, used to detain and deport illegals prior to the existence of a Border Patrol or ICE. The only mention in the constitution regarding immigration is “to establish a uniform Rule of Naturalization.”
- Nullify the anti-police agenda. During the Obama regime, his DoJ hamstrung city police departments all over the country with phony “civil rights” investigations, resulting in cities hesitant to arrest or prosecute violent thugs. With anti-police activists surrounding Biden, his administration will do the same, thereby empowering leftist rioters in our cities. The founders never gave the federal government a law enforcement role as they thought this responsibility best be carried out by local police and sheriff departments. States should resist and ignore all federal anti-police regulations and DoJ harassment of local police departments.
- Nullify all federal efforts to preserve fraudulent voting procedures. Conservative states need to immediately take action on election fraud and pass comprehensive voter ID laws, which, of course, will be attacked by Biden’s DoJ as a “civil rights” violation. States also need to remove the estimated 2-3 million illegal aliens from its voting rolls.
Of course, states will be reluctant to invoke nullification but the alternative will be to watch our constitutional rights trashed by this Federal government gone mad.
Once states are engaged in nullifying federal laws, we will see conservatives leaving blue states to live in red states and vice-versa.
And yes, this could lead to a peaceful division of America in which the Red states become redder and the Blue states become bluer, but this is not our fault.
It is the left that is assaulting our constitutional rights and if conservatives desire to live in states that protect their rights, then so be it.
Already, we are seeing some movement in the states on the nullification front. The Arizona Senate passed a bill that declares it will not enforce federal gun control laws. Oklahoma, South Dakota and North Dakota legislators have all introduced legislation that nullifies Biden’s executive orders.
Nullification is simply returning America to its original system of governance in which most governmental authority is decentralized to the states and counties.
I know a lot of constitutional scholars who will disagree with my position. They will say nullification is unconstitutional and cite Supreme Court cases such a Marbury vs. Madison.
I will not argue legality.
I will argue that we, the people have a duty and responsibility to call out abuses of our federal government.
The tools we have to fight this abuse are a Convention of States, Nullification, or, as we have seen in our past, civil war.
I have previously explained my concerns about a Convention of States. I do not want a civil war. I therefore back the idea of just saying NO! to the federal government.
This puts the ball firmly in the hands of the Biden Administration.
Faced with nullification, they now must make a decision. Listen to the people and recognize the will of the people, or take up arms and force the citizens of the US to comply with their beliefs.
Let’s face it, the federal government won’t do much about it other than to cut federal funding for some state programs, but perhaps the time has come for states to do away with these federal handcuffs.