NULLIFICATION: THE GREAT DECENTRALIZER

By Jason Spencer

With the passage of monstrous pieces of legislation in 2009, big government is on a frantic pace to destroy the last vestiges of the Constitution that secure our liberties. Specifically, the health care bills that passed in each chamber of Congress, which are now in conference, has the authority to mandate individuals to purchase health insurance…or else. If one does not purchase what they tell an individual to buy, the government may fine, prosecute and even make that individual see the inside of a jail. In addition, the cap-and-trade bill that passed the House of Representatives requires homeowners to retrofit their humble abodes with new energy efficient construction codes. If the cap-and-trade bill becomes law, homeowners failing to retrofit their homes with these new “green” federal requirements will be denied resale.

The aforementioned examples are just a few of many unrelenting assaults upon the liberties of American sovereigns. Once upon a time, American sovereigns and their respective States made sure that Congress operated within its seventeen enumerated powers that were delegated to them. Presently, abiding by these constitutional constraints is seen as trivial, insignificant, and inconvenient by today’s Congress. American sovereigns and their respective State legislatures, with stunning insouciance, have allowed this power grab to transpire over many years. Now, we may have “crossed the Rubicon” in terms of recovering what liberties we have ceded to the federal government. Are we now just merely lowly subjects who are at the mercy of an all powerful centralized State groveling for the crumbs of freedom it now desperately craves?

We must become sovereigns again, but how do we do that when the federal government’s powers are no longer bound by the original seventeen enumerated powers granted under the Constitution? Instead, the federal government’s powers have expanded beyond the original enumerated powers with over 4000 federal criminal laws and over 40,000 pages of a perverted and incomprehensible tax code. How do we, as individual sovereigns, empower our States to reclaim the great residuum of power from the federal leviathan in order to serve our interest and be the protectorate of liberty? The answer to these questions is the idea of nullification.

Nullification or “to nullify” is a topic that nowadays is considered archaic, a historical novelty and is even considered taboo in polite political conversation amongst academic historians, jurists and the political mainstream. This word is much akin to its close cousins “secession”, “devolution”, “interposition”, “States Rights”, “delegated powers” and in some cases “Constitution”. However, an interest in nullification is gaining momentum among state legislatures with the advent of multiple state sovereignty resolutions being enacted to slap the proverbial and overreaching hand of the federal government.

So, what is nullification? Nullification is the legal theory by which states can declare federal laws unconstitutional. The United States was founded on the ideals that federal power could be challenged by the states. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective’, within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Nullification is also a fundamental state right to prevent federal domination: A domination that is all too commonplace today.

Nullification is an important means for the several states to defend themselves against an all powerful central government just as the original thirteen colonies achieved at the nascency of the Republic. The individual thirteen British colonies that eventually became individual states were always separate political entities. American victory established the precedent and left no doubt upon where sovereignty resided. Individual state sovereignty was at the heart of the Anglo-American argument that led to the American Revolution, and for that matter, it was the prime issue that led to the subsequent War Between the States. At present, state obstruction of intrusive federal laws through meaningful nullification must now be considered as a rightful remedy and a necessary tool against the centralized state. Among other rightful remedies to thwart wrongful infringements afforded to the sovereign states are interposition and even secession. Specifically, interposition is where a state may use force to prevent the execution of federal laws it deems a violation of the Constitution; and a state may claim the right of secession, which is a peaceful withdrawal from “the political bands which have connected them…” to a tyrannical central authority. However, throughout human history most secession attempts have not ended peacefully—but in the 1990s, the Soviet Union did not forcibly prevent breakaway republics from leaving during its collapse. As a result of the central authority’s impotence, those republics were allowed to leave peacefully.

Andrew Jackson once argued that nullification is “incompatible with the existence of the Union”, but nullification is entirely compatible because it underscores the very foundation of the Union: The doctrine of delegated authority and the separation of powers. Thus, the Ninth and Tenth Amendments to the Constitution, along with Article VI (the Supremacy Clause) prohibit federal usurpation or the wrongful infringement upon the reserved authority of the States or “We the People”. Furthermore, some would even say that secession is not legal since the War Between the States settled that issue. On the contrary, states have a right to resist and even call for a political divorce “whenever any Form of Government becomes destructive” for which it may then “institute new Government.” Laws enacted by the federal government that reach beyond the scope of its delegated authority under the Constitution are illegitimate. Thus, without the possibility of state secession or nullification, what does the federal government have working against its power? Some would answer this question by employing the use of the courts.

Unfortunately, the courts have become politicized and are not impartial and not objective arbiters for the cause of liberty as secured by the Constitution. The role of the federal courts as the final arbiter of disputed constitutional issues is probably the weakest aspect of the Constitution. Over the years, there have been issues presented to the courts to answer constitutional questions where violations may have occurred and how the Constitution applies. Conversely, the courts have been involved in issues where the Constitution does not apply. When the courts involve themselves in non-constitutional issues, it politicizes the halls of justice. By doing so, our liberties fade, and passing political litmus tests becomes the objective of the court—not whether the courts understand the Constitution. This weakness in our federal courts allows Congress to pass numerous laws over the past 100 years giving the federal government additional authority not mentioned in the Constitution. But, without amendment, altering the enumerated powers by legislative fiat is, in and of itself, unconstitutional.

Presently, there are many numerous nullification efforts currently underway in several states. A proposed Constitutional Amendment to effectively ban national health care will go to vote in Arizona in 2010. Thirteen states now have some form of medical marijuana laws—in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void. Similarly, as in Montana and Tennessee, New Hampshire seeks to “exempt firearms, firearm accessories, and ammunition manufactured in New Hampshire from federal law regulation” with House Bill 1285. Furthermore, in an effort to interpose for its citizens, New Hampshire will implement felony charges against federal agents for violations of their citizen’s rights.

Finally, Americans have started to wake up to the intrusive omnipotent central government and have begun to resist. Thus, nullification proves to be an efficacious legal method as a great ‘decentralizer’ by binding government with the chains of the Constitution.