Chapter 6 — Nullification

“I should like merely to understand how it happens that so many men, so many villages, so many cities, so many nations, sometimes suffer under a single tyrant who has no other power than the power they gave him; who is able to harm them only to the extent to which they have the willingness to bear with him; who could do them absolutely no injury unless they preferred to put up with him rather than contradict him.”

These are the words of a 14th century French writer and philosopher by the name of Etienne de La Boetie in his essay, The Politics of Obedience. Mr. La Boetie understood the natural right of nullification at an early age.

Nullification simply means “We refuse to do it.”

When the federal government usurps power and acts in a tyrannical manner toward the states or the people, what did our framers really say we that must do?

Recommendations did not include filing lawsuits or amending the constitution. There is a distinction to be made between abuses of delegated powers and usurpations of powers which have not been delegated.

The framers advised two remedies: nullification and the election of more faithful and virtuous representatives.

For usurpations of powers which have not been delegated and are outside the lawful reach of the federal government, like health care, then nullification is the proper answer according to Madison, Hamilton, and Jefferson.

An example of the abuse of delegated powers would be unwise bankruptcy laws as authorized in Article. I, Section 8, clause 4, for which election of better representatives is the answer.

In order to understand the right of nullification, we must refer back to the founding principles set forth in the Declaration of Independence, second paragraph. These founding principles are:

Our rights are unalienable and come from God.
The purpose of civil government is to protect our God-given rights.
Civil government is legitimate only when it operates with our consent.
Since the U.S. Constitution forms the federal civil government, it operates with our consent only when it obeys the Constitution. When it does not obey the Constitution and takes away any of our natural rights, we have the right and the duty to alter, abolish, or throw off such government.

Many volumes of books and articles have been written on the subject of state nullification to explain what the founders intended and what they did not.

Many well-respected folks say that nullification by states of unconstitutional acts of the federal government is unlawful and/or impossible.

These same highly regarded folks appear unaware of the two conditions which our framers said must be present before nullification is proper and possible.

  1. The act of the federal government must be unconstitutional, usually a usurpation of a power not delegated to the federal government in the Constitution.
  2. The act must be something the states or the people can refuse to obey. The act must order them to do, or not do something. How is it possible to say you are not going to do something if you are not required to do it in the first place?

Here are three illustrations showing when nullification is or is not an option:

  1. When the act of the federal government is unconstitutional and orders the states or the people to do, or not do, something, then nullification is the proper form of interposition.

    Laws which require citizens to register arms, laws which prohibit students from praying at school, and laws that force citizens to purchase health insurance are not subjects which Congress has any authority to address for the nation as a whole. In addition, they require the states or the people to act or not act so both requirements are fulfilled.
  1. When the act of the federal government is unconstitutional, but does not order the states or the people to do or not do something, as in the Alien and Sedition Acts, nullification is not possible. The states may interpose by objecting, as in The Virginia and Kentucky Resolutions of 1798.
  1. When the act of the federal government is constitutional, but unjust, such as the Tariff Act of 1828, the states may not nullify it. But the states may interpose by objecting and trying to get the legislation changed. 

    When any branch of the federal government steps outside the Constitution to make laws, rules, orders, or opinions which exceed their delegated powers, the states must resort to those original rights which predate and preexist our constitution to nullify such usurpations by the federal government of non-delegated powers.

Some, who claim to be experts, make demonstrably false assertions concerning the act of nullification and say:

  • States do not have the right to nullify unconstitutional acts of the federal government because our Constitution does not say they can.
  • Nullification is literally impossible.
  • The Supreme Court is the final authority on what is constitutional and what is not; and the states and the people must submit to whatever the Supreme Court says.
  • James Madison, “Father of the Constitution,” opposed nullification.

These assertions contradict our Declaration of Independence, The Federalist Papers, our federal Constitution, and what James Madison, Thomas Jefferson, and Alexander Hamilton really said.

Each assertion is listed below and countered by using original source documents.

  1. Assertion: The states cannot nullify unconstitutional acts of the federal government because the Constitution does not say they can do it.

    As Madison says in his Notes on Nullification (1834), one can see that “when powers are assumed which have not been delegated, a nullification of the act” is a “natural right.”

    The framers regarded the right of nullification as one with the hallowed status of a natural right of self-defense, not as a paltry constitutional right that could be decided by the courts. It applies to every single state, county, parish, city, town, and citizen.

    Thomas Jefferson said in the Kentucky Resolutions of 1798:

    “…but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact,…to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…”

    James Madison commented on Mr. Jefferson’s statement above in his Notes on Nullification (1834), near the end:

    “…the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…”

    Alexander Hamilton says in Federalist Paper No. 28, 6th paragraph:

    “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.”

    Hamilton then shows that the states can rein in a usurping federal government:

    “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

    But the nullification opponents do not agree, so they reject, or do not understand, the founding principle that natural rights predate and preexist the Constitution and come from God.

    The natural right of nullification transcends the Constitution and, since it is not prohibited by the Constitution to the states, is a reserved power as the 10th Amendment affirms.

    Nothing in the federal Constitution prohibits the states from nullifying unconstitutional acts of the federal government.

    We saw where Madison said in Federalist Paper No. 45 that the powers delegated to the federal government are few and defined, and all other powers are reserved to the several states.

    Therefore, nullification is a reserved power of the states and the people. The only way a state could not lawfully nullify unconstitutional federal acts is if an individual state Constitution specifically prohibited it.

    The states do not go to the Constitution to look for permission because they retain all the powers they did not exclusively delegate to the federal government.

    It is the federal government which is supposed to look to the Constitution for permission to address a subject, not the states. This is an opposite view from the nullification opponents.

    As we have just seen, Jefferson, Madison, and Hamilton saw nullification of unconstitutional acts of the federal government as a natural right, not a constitutional right. Since rights come from God, there is no such thing as a constitutional right of nullification in the U.S. Constitution.

  1. Assertion: Nullification of unconstitutional federal legislation is literally impossible.

    We saw above the two conditions which must exist before nullification is possible, according to the framers, the Declaration of Independence, and The Federalist Papers:

    – The act of the federal government must be unconstitutional.
    – The act must be something the people or the states can refuse to obey.

    Here are examples of unconstitutional federal acts which may be nullified because they fulfill the two requirements above:

    A. The Constitution does not delegate to the federal government power to address the subject of religion, either for it or against it for the nation as a whole. But in 1962, the Supreme Court first ordered the states to stop prayers in the public schools. That Supreme Court next banned the Ten Commandments from the public schools.

    Since those orders were usurpations of powers not lawfully possessed by the Supreme Court, the states could have nullified them by directing their school boards to ignore them.

    B. If Congress by law, or the president by executive order, orders the people to turn in their guns, they have the natural right to refuse to comply. The Constitution does not authorize the federal government to disarm the citizens. The states and the people can nullify such law or order by refusing to obey.

    C. In like manner, the people may nullify unconstitutional and unjust state and municipal laws as well. The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using nonviolent civil disobedience, Rosa Parks and Martin Luther King led black people to refuse to obey these unjust and unconstitutional laws as affirmed in the first section of the 14th Amendment. This was nullification by citizens.

    The following is an example of unconstitutional acts which could not be nullified because they were not directed to anything the states or the people could refuse to obey: The Alien and Sedition Acts.

    In 1798 Thomas Jefferson wrote The Kentucky Resolutions, and James Madison wrote The Virginia Resolutions. These resolutions objected, as opposed to nullified, laws made by Congress which purported to grant to the president dictatorial powers over alien and seditious words.

    Kentucky and Virginia could object, but they couldn’t prevent the president from enforcing the Alien and Sedition Acts, because the president had the raw power to arrest and prosecute aliens or people who had spoken or written seditious words.

    Jefferson and Madison showed in the resolutions why the Alien and Sedition Acts were unconstitutional as a result and protested them and asked other states to join the protest.

    The two paragraphs in the Virginia Resolutions which some cite as the reference as to the states’ lack of literal power to nullify anything as to the ultimate authority of the Judicial Branch, appear under Madison’s discussion of the last two resolutions where Virginia had asked other states to join the protest. Madison writes that the citizens and legislature of Virginia have the right to communicate with other states and by doing so they are not exercising a judicial function.

    Madison actually writes in the same report that the experts cite, that it is “a plain principle, founded in common sense” that the states are the final authority on whether the federal government has violated our Constitution. In the Virginia Resolutions, under his discussion of the third resolution, Madison says:

    “It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

    A bit farther down, Madison explains that if, when the federal government usurps power, the states cannot act so as to stop the usurpation, and thereby preserve the Constitution as well as the safety of the states, there would be no relief from usurped power. This would subvert the rights of the people as well as betray the fundamental principle of our founding:

    “…If the deliberate exercise, of dangerous power, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it; there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.”

    Farther down, Madison answers the objection of convention members “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort.”

    Madison explains that when the federal government acts outside the Constitution by usurping powers, and when the Constitution affords no remedy to that usurpation, then the sovereign states who are the parties to the Constitution must likewise step outside the Constitution and appeal to that original natural right of self-defense.

    Madison also says that the Judicial Branch is as likely to usurp as are the other two branches. Thus the sovereign states, as the parties to the Constitution, have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches:

    “…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.”

    Madison goes on to say that all three branches of the federal government obtain their delegated powers from the Constitution, and they may not annul the authority of their Creator. If the Judicial Branch connives with other branches in usurping powers, our Constitution will be destroyed. So the Judicial Branch does not have final say:

    “…to the rights of the parties to the constitutional compact, from which the judicial as well as the other department hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.”

  1. Assertion: The Supreme Court is the final authority on what is constitutional and what is not while the states and the people must submit to whatever the Supreme Court says.

    Under this assertion, the federal government we created with the Constitution is the exclusive and final judge of the extent of the powers which we delegated to it. The opinion of five judges, not the Constitution, is the sole measure of its powers.

    Under the view of some experts, only Congress can correct Congress, and only the federal courts may correct the federal courts.

    According to all of the above original sources, Madison’s position was misrepresented when it was said he advocated that the Judicial Branch is the final authority.

  1. Assertion: James Madison opposed nullification by states of unconstitutional acts of the federal government.

    Not true.

    What Madison said was that South Carolina cannot nullify a constitutional act. Of course Madison opposed South Carolina’s peculiar doctrine of nullification. Madison, along with Jefferson and Hamilton, said the nullified act must be unconstitutional.

    There is a distinction between the nullification doctrine which Madison, Jefferson, and Hamilton embraced and the peculiar doctrine of nullification advanced by South Carolina.

    We saw in Madison’s Report on the Virginia Resolutions (1799-1800) that in a proper case, “interposing even so far as to arrest the progress of the evil” is essential “to preserve the Constitution itself as well as to provide for the safety of the parties to it.”

    We saw above that the condition which must be present before nullification is deemed proper is that the act of the federal government must be unconstitutional.

    Consider The Tariff Act of 1828 and the South Carolina nullification crisis.

    A brief review of history shows South Carolina was an agricultural state. During the 1820’s, they bought manufactured goods from England. England, in turn, bought cotton produced by South Carolina and other southern states.

    However, infant industries in the northeast produced some of the same manufactured goods as England, but they were more expensive than the English imports and were not able to compete with England’s cheaper imports.

    In 1828, Congress imposed a high tariff on the English imports. The southern states called this the “tariff of abominations” because the tariff made the English goods too expensive to buy. Since the southern states stopped buying English goods, the English stopped buying southern cotton. The southern states had to pay more for manufactured goods, they lost the major buyer of their cotton, and their economy was weakened.

    Our Constitution delegates specific authority to Congress to impose tariffs on imports, and the tariff must be the same in each state as stated in Article I, Section 8, clause 1.

    Therefore, the Tariff Act of 1828 was constitutional.

    South Carolina wanted to nullify a constitutional law.

    South Carolina’s House of Representatives immediately set forth their doctrine to nullify the Tariff Act of 1828 asserting that:

    1. A state has a constitutional right to nullify any federal law

    2. The nullification is presumed valid, and is to remain in force, unless three-fourths of the states, in a convention, say the nullification is not valid.

    What Madison said in his Notes on Nullification (1834) was the particular doctrine of nullification set forth by South Carolina did not recognize:

    The federal government has delegated authority to impose import tariffs.
    The Constitution requires that all import tariffs be uniform throughout the United States.
    States cannot nullify tariffs which are authorized by the Constitution.
    One fourth of the states do not have the right to dictate to the rest of the states on matters within the powers delegated to the federal government.
    Nullification is not a paltry constitutional right.

    Near the end of his Notes, Madison quoted Thomas Jefferson’s Statement:

    “…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…”

    Madison then writes:

    “Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.”

How is this applicable today?

When We the People ratified our Constitution, and thereby created the federal government, we did not delegate to our creature power to regulate:

Medical care.
Energy.
Guns and ammunition.
Funding of unconstitutional federal programs.
Public schools.
How we use our lands.
The thousands of other things that the federal government has assumed the authority to do.

Each state has a natural right to nullify these unconstitutional dictates within its borders. As Jefferson and Madison said, without nullification, the states and the people would be under the absolute and unlimited control of the federal government.

In Federalist Paper No. 46, Madison writes with respect to unconstitutional acts of the federal government:

The people can refuse to cooperate with federal officers.
State officials can oppose the federal officers.
State legislatures can invent legislative devices to impede and obstruct the federal government.
States can cooperate in concerted plans of resistance.

As the last resort, states must defend themselves from the federal government. That is why the people are armed.

To sum this up:

Nullification is a natural right of self-defense.

Right of nullification does not come from the Constitution. Like all rights, the right of self-defense comes from God and is affirmed in the Declaration of Independence, second paragraph, which affirms the people’s right to overthrow tyrannical government.

Nullification is a reserved power within the meaning of the 10th Amendment. The Constitution does not prohibit states from nullifying, and we reserved the power to do it.

Nullification is required by the oath of office, Article VI, clause 3 as it requires all state officers and judges to “support” the federal Constitution. Therefore, when the federal government violates the Constitution, the states have the duty to nullify.

A short word about jury nullification.

Assume that you have been summoned for jury duty (“petty jury”) for a trial in federal court. Here are a few things you need to know.

Article III, Section 2, clause 1, shows that the federal courts are granted permission to hear several categories of cases. You may be called to be a juror in either a criminal case or a civil case. A criminal case would most likely involve an alleged violation of the federal criminal code. A civil case would most likely involve a case between citizens residing in different states over some non-criminal issue as breach of contract, negligence, etc.

The issue of jury nullification arises in criminal cases where the defendant is charged with an unjust, unfair, or unconstitutional federal law such as the “crime” of failing to buy health insurance.

Article III, Section 2, last clause, says:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury…”

Note the entry for “Jury” in Webster’s 1828 Dictionary:

“Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil cases, and to decide both the law and the fact in criminal prosecutions.”

According to the above definition, when the Constitution was ratified, our framers understood that jurors had the right to decide the law in criminal trials. This means that the jurors have the right to judge the law. If you find the law unreasonable, unconstitutional, unfairly applied, or that the defendant has been unfairly singled out, then you have the right and the duty, in a criminal case to find the defendant not guilty.

Alexander Hamilton, a lawyer, was well aware of the problem of unjust criminal statutes. He writes in Federalist Paper No. 83, 12th paragraph:

“…arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings.”

The overriding issue is even if the Prosecutor proves beyond a reasonable doubt that the defendant failed to buy health insurance, do you, as a Juror, have the right or the duty to refuse conviction? The prosecutor and the judge may insist that you do not have that right. In fact, the judge is likely to instruct you that if you find, as a matter of fact, that the defendant failed to buy health insurance, then you must find him guilty.

Defense counsel may want to tell you the judge is not correct. He may want to tell you about your right and your duty of jury nullification. But judges do not allow defense counsel to so inform you. They may order defense counsel to jail for contempt before they can tell you.

If you, as a juror, find the law unfair, unreasonable, unconstitutional, unfairly applied, or that the defendant has been unfairly singled out or treated, then you have the right–the duty–to find the defendant not guilty.

The judge will probably require you to take an oath that you will follow the law as she or he explains it to you. If you find that the defendant violated the statute, then you must find him guilty. If you say anything about “judging the law” or “is the statute under which defendant is charged constitutional,” then the prosecutor will take you off the jury. However, both counsels have the right to ask you questions during a preliminary examination of a witness or a juror to determine whether you will be a good juror for their side. You are under oath to tell the truth when you are questioned. So, if the prosecutor asks you about “Jury Nullification,” do you know about it? Do you agree with it? You must tell the truth. Otherwise, you could be tried for perjury. You have the right, when you take the juror’s oath in a federal criminal case, to assume that the judge is fair, impartial, and will obey the Constitution since she or he took an oath to do so. Once you are seated in the jury box, find out what the defendant is charged with, hear the evidence, go into the jury room to deliberate, you must do as your conscience dictates.