Nullification or Interposition: An Overview
Thomas Jefferson and James Madison argued in 1798 that the several States were the final judge of whether or not the general government in Washington was in violation of the Constitution. Jefferson used the term Nullification to refuse enforcement of a law which would extend the powers of the federal government beyond the expressed enumerated powers established by the states through ratification of the Constitution. James Madison referred to state legislators duty to interpose on behalf of its people in the face of usurpation of power from the general government. So in 1798 we have two labels introduced which describe a philosophy which was consistent with the prevalent line of thought throughout the founding era. These resolutions were specifically aimed at the alien and sedition acts, but their application is more general.
No doubt, many will argue that the Supreme Court rules on the constitutionality of all matters and that its decision is final. The kindest word I can use to describe this is MYTH. True, this is typically the way it works today. This too is what we are tought in our schools (Federal Government Influenced Schools). However, one who is truly interested in a full exegesis of the matter ought to look at the ratification process to see how the states viewed the matter. There were ratifying convention in each of the 13 states. These states created the general government through ratification and the following states had some very interesting comments upon ratifying: Virginia, New York, and South Carolina.
Ratification of the Constitution by the State of Virginia; June 26, 1788
… in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes …
Ratification of the Constitution by the State of New York; July 26, 1788.
…That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.
Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution…
Ratification of the Constitution by the State of South Carolina; May 23, 1788.
This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.
These were not the only states to add ratification comments and stipulations. Some of the stipulations were in the form of request, some were demands and some required only an honest attempt at some alteration as a first order of business under a newly ratified Constitution. It should be noted here that the first 10 amendments, which we refer to as the Bill of Rights was derived from these ratification notes. It is also interesting to note that not all of these recommendations were ratified as amendments but the 10 we have come to enjoy were the suggestions with which the several states were ready to admit. It is also important to realize that the amendments did not go through an Article V Constitutional convention route. One might think that 10 amendments all being considered at one time might be cause for a convention, however, those who had sat in the convention were concerned at the prospect of a second convention and did not wish to set a precedent for frequent use of conventions in the future.
An honest look at the concept of Nullification or Interposition demands that we examine the two 1798 resolutions:
The Virginia Resolution – Alien and Sedition Acts
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 are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in 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.
Kentucky Resolution – Alien and Sedition Acts
That the principle and construction contended for by sundry of 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 colour of that instrument, is the rightful remedy:…
Reference: Nullification: How To Resist Federal Tyranny In The 21st Century by Thomas E. Woods, Jr
I recommend Mr. Wood’s speeches at the Ludwig von Mises Institute as well.
Another talk from Kris Anne Hall at the 2013 CSPOA Conference on May 31, 2013: http://www.youtube.com/watch?v=DaUH4XCJPcQ
This Address is entitled “The Present Remedy for Federal Overreach” and was delivered to County Sheriffs and Peace Officers.