Nullification: The Colonies as Sovereign States and Authors of their Destiny
In order to understand the notion of Nullification or Interposition, it is helpful to know some history regarding the establishment of the American Colonies and how they came to be Independent Sovereign Nations. It is this sovereignty that is exercised when nullifying federal “law”. Here follows a much abbreviated summary of the major colonies of America, the origins of their Sovereignty, their jealous desire to maintain that Sovereignty, and a look at the major clauses and constructs used in their legislation to protect their Sovereignty:
Originally, all of the American territory was referred to as Virginia. The name was derived from Queen Elizabeth, the virgin queen. The first English child born on American soil was Virginia Dare. She was the child born of Ananias and Ellinor Dare of Roanoke Island in 1587. In 1606, charters were formed establishing the London and Plymouth Companies. These companies financed the settlement of “Virginia”. Plymouth Company was assigned Northern Virginia (Ultimately New England) and London Company was assigned lands proximate to the Chesapeake Bay. The Plymouth Company first attempted a colony in what is present day Maine, however that attempt was short-lived. The London Company settled in Jamestown along the James River and cultivated the first permanent settlement in what is now the United States.
From approximately 1619 through 1639, Virginia established legislative assemblies to represent the various plantations (aka settlements) and to govern along side the Governor. These assemblies ultimately developed into the House of Burgesses. This experience laid the initial format by which British Colonies would be organized and run. The colonies would establish their own laws. Their laws would reflect English law. The Colony would be an economic benefit to the Mother Country.
In 1620, the Plymouth Company settled in Massachusetts. Apparently they settled further north than their charter had designated and so a new charter was drafted in 1629. After initial hardships the colony was eventually able to produce enough to buy out their English benefactors and establish a degree of independence.
In 1629, The Massachusetts Bay Company obtained a Royal Charter from the King. The Puritans had been under persecution by King Charles I and the opportunity to flee to America was popular amongst them. The Royal Charter was slightly different from earlier charters in that it did not stipulate that the company must meet in England. Both the charter and the company migrated to America and operated independent of the crown. So the two most prominent settlements in early New England had early established a tremendous degree of self-determination.
The Puritan influence within the Massachusetts Bay Colony government was ripe for dissent. Dissidents were often exiled, and a series of new colonies resulted in this fashion.
Connecticut was established in 1639 with the drafting of the Fundamental Orders of Connecticut. This was an off-shoot of the Massachusetts Bay Colony and is credited as being the first written Constitution in the New World.
Providence and Rhode Island Plantations
Likewise, Roger Williams was exiled from Massachusetts and established Providence in 1636, while Anne Hutchinson settled her splinter group in Rhode Island. In 1663, these settlements were united.
The charter for Maryland was issued to the Calvert family. They were Catholics and deigned to provide a haven for the Catholic faith in the Americas. Prospects for Catholic settlers were limited, so the predominant settlers were of the protestant sect. Maryland was settled as a feudal society. Cecilius Calvert was Lord Baltimore and had ultimate governing rights but was restricted in that the laws of Maryland would need to reflect British law. Manors were established with courts and freeholders, taxing privileges, etc. Maryland established religious toleration among Christian denominations.
New York and New Jersey (aka New Netherlands)
The Dutch actually established the first settlements in present day New York and New Jersey. The English considered Holland to be intruders. It was not until 1664 when King Charles II granted land rights to the Duke of York that England laid claim to New York, New Jersey and parts of Connecticut. The stipulation, however, was that the Duke would need to wrest control of the area from the Dutch. He allowed the Dutch to retain their property, allowed religious tolerance, gave his Connecticut land grant back to the Puritans who had settled it and split New Jersey from New York.
Pennsylvania & Delaware
William Penn was granted the colony that became known as Pennsylvania by King Charles II. The Duke of York ceded a portion of his land grant to William Penn which would ultimately become Delaware. Early Pennsylvania colonists were Swedes, Dutch, Danes and some Puritans from New Haven. The Quakers were an off-shoot of the Puritans and highly persecuted in England. Pennsylvania established religious toleration.
North and South Carolina plus a portion of Georgia were granted to eight proprietors of Nobility. Settlement was slow and great distance lay between the primary settlements in the north and south. The result was that the government of these two colonies remained distinct throughout their development.
The settlement of Georgia might best be described as a royal boondoggle. The initial grant went to 20 proprietors who operated the settlement as a philanthropic (non-profit) venture. The legislature in England appropriated subsidies repeatedly and the proprietors lost interest in the failed venture even before the 21 year charter had expired. Georgia became a Crown Colony and lost most of its population as dissatisfied settlers migrated to other settlements in neighboring colonies where they found laws more favorable and advantageous.
The Sovereign States
In June of 1776, Richard Henry Lee of Virginia proposed the famous Lee Resolution in which we find a declaration of Sovereignty of the individual states. Recognizing that these small states would require foreign alliances (Foreign Aid) to battle the world’s leading military power, a confederacy was proposed that would assist the various states in the prevention of their becoming prey to the foreign nations which may provide the needed aid. Until this time, hostilities between Great Britain and the Colonists were centered on a defense against tyranny with the hope of reconciliation.
Resolution introduced in the Continental Congress by Richard Henry Lee (Virginia) proposing a Declaration of Independence, June 7, 1776
Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign Alliances. That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.
The Declaration of Independence was drafted as proposed and its preamble further defines this Sovereignty.
Preamble to the Declaration of Independence
When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The preamble clearly defines the Sovereignty of these independent states as separate and equal to that state with whom they are separating. In other words, Virginia was a state in the same sense as the State of Great Britain. This concept is further reiterated in the summation at the end of the document in which we find:
Declaration of Independence
We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.
Now in order to make this declaration stick, the War for Independence was fought. In the course of this war, the colonies exercised all these rights. They levied war, they contracted alliances, they traded amongst themselves and with foreign nations, and finally concluded a peace. As victors in the war they obtained a confirmation of their declaration from the Crown itself in which all the principle parties were named:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Roughly 18 months prior to this peace Treaty, the Articles of Confederation which Lee had proposed was ratified. The colonies maintained their sovereignty within this confederacy which they dubbed: “The United States of America”.
Articles of Confederation : March 1, 1781
I. The Stile of this Confederacy shall be “The United States of America”.
II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
So, there can be no doubt that the 13 original colonies operated as independent sovereign states from the time of its official declaration in 1776 thru the war for independence and all the years up until 1789 under the Article of Confederation. All that is left to demonstrate is that the states retained their sovereignty when the Constitution was ratified. If this can be established, then the states which are party to the Constitution may rightfully exercise that sovereignty in the face of federal overreach and abuse of power.
Sovereignty Retained in the Ratification of the Constitution
Naturally, in order to establish a more perfect union, the Articles of Confederation required amendment and the states felt compelled to relinquish some degree of autonomy. A study of the constitution and the convention itself demonstrates the struggle that the representatives of the various states under went in their attempt to determine how much power to delegate to a central government. The key to understanding that the states intended to retain sovereignty is in the language they used in drafting the instrument. They used words such as “granted”, “enumerated”, “delegated”, etc.. The preamble lists the 6 reasons for adopting the constitution:
The Preamble of the Constitution
We, the people of the United States,
- in order to form a more perfect Union,
- establish justice,
- insure domestic tranquility,
- provide for the common defense,
- promote the general welfare,
- and secure the blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the United States of America.
Article I defines the power of Congress. It starts by establishing that all Legislative Powers, herein granted, are vested in a Congress of the United States… Then it defines the congress as being bicameral, or consisting of two parts, a House and a Senate. So we know that federal law will be made only by the congress. We also know that the use of the term “herein granted” indicates that there are legislative powers not granted to the congress, that is, reserved by the states. In section 8 of Article I there are 18 specifically enumerated (granted) powers. Section 10 of Article I lists specific areas in which the states have agreed not to exercise certain powers and to avoid certain abuses of power which were once suffered under the British Crown. In order to agree not to exercise certain powers, they obviously have authority to do these things, but are delegating this power to the central government with the exception of the few clauses prohibiting abuses of power which I will place in bold. These voluntary restrictions are:
1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
2. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
3. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of delay.
The Constitution, itself, then further recognizes the Sovereignty of the several states in Article IV when it states:
Article IV Section 4
The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
During the ratification process, several state delegations debated the potential effectiveness of this proposed constitution. Those in favor were referred to as Federalists. Those opposed were referred to as anti-Federalists. Those in opposition feared that the constitution delegated too much authority to the central government. Others, jealous of the liberty they won, wanted no central government at all. It was agreed that a Bill of Rights should be added to the Constitution describing specific rights which the people retained as a sentinel to awake a slumbering populace in the event of future overreach by the new government. Some of the federalists were against this idea, because they saw no reason to list prohibitions against actions which were not enumerated in the document and feared that listing them might enable abuses against rights not listed in the Bill of Rights. The ninth and tenth amendments were added in order to overcome this potential trap. The ninth and tenth amendments tell us a great deal about the relationship between the states and the general government, reaffirm the sovereignty of the states, and describe how the entire document is to be viewed. The ninth deals with the problem of enumerating only a short list of rights, clarifying that other rights not listed are also protected.
Ninth Amendment to The United States Constitution
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The tenth amendment is extremely instructive. It demonstrates that the scope of the power of the new government is constrained by the 18 specifically delegated powers in Article I section 8 and the list of prohibitions in Article 1 section 10; the very clauses already discussed above.
Tenth Amendment to The United States Constitution
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.
The General Welfare Clause
The term “general welfare” is often used to justify the expansion of federal power. An honest look at the use of this construction within the document itself illustrates that this term is used as a descriptor not a grant of power. “General Welfare” is used twice in the United States Constitution. First it appears in the preamble as a goal or reason for the adoption of the instrument, namely to “promote the general welfare”. This term “general welfare” is opposed to the welfare of a specific state. In other words, the goal is to operate a general government in which the welfare of all the states may be promoted. The government must not be exercised as a means to gain advantage for one state at the expense of another. In Article 1 Section 8 paragraph 1 we see the term again:
The Congress shall have the power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States …
Once again, “general welfare” is used to describe the reason for taxation and tariffs, namely the welfare of all the states, as opposed to the benefit of one specific state over another. Anyone familiar with the history of the Article of Confederation, knows that tariffs were not always universally beneficial to all states. This same issue would be revisited under the Constitution in the years leading up to our Civil War.
The Necessary and Proper Clause
Another clause that has been used to expand federal power is the “necessary and proper clause”. This clause is found in Article 1 Section 8 paragraph 18:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.
It has been argued that the Congress can legislate in areas it deems necessary and proper. This is a weak argument indeed. If one reads this carefully, one is struck by the fact that the necessary and proper clause is immediately constrained by the phrase “for carrying into execution the foregoing powers” and it speaks of “vested powers“. Clearly, this clause is not an expansion of power. It is simply a descriptive clause that seeks to illustrate why certain laws may be written.
The Commerce Clause
The commerce clause has been stretched beyond recognition in an attempt to justify the 20th century welfare state. In order to understand what the commerce clause says, we should look at the definition of the word “commerce” at the time of ratification to guard against adopting a more modern sense of the term. Then we can place it within it’s context and make some general conclusions.
Noah Webster’s 1828 Definition of “Commerce“:
- In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.
- Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.
- Familiar intercourse between the sexes.
- Interchange; reciprocal communications; as, there is a vast commerce of ideas.
- To traffick; to carry on trade.
- To hold intercourse with.
And looks commercing with the skies
Noah Webster wrote his dictionary to capture the definitions of the words in use at the time of the ratification of the Constitution. He understood that a language is alive and he wanted to preserve the meaning of words at that point in time so that posterity would have recourse in determining the actual intent of the Constitution. In his amended 1828 version, the final version he personally compiled, we find commerce as a noun and as a verb. The commerce clause uses the word commerce as a noun. The very first definition that Noah Webster provides is sufficient. “an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick.”
The Commerce Clause: Article 1 Section 8 paragraph 3
The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes:
Now, lets look at the context in which this word is used. It is now obvious that the framers intended that the commerce clause apply to trade among the states. The Indian Tribes were Sovereign Nations as are Foreign Nations and also the states as parties to this constitution are Sovereigns. A domestic application of this clause beyond the regulation of the manner in which the states treat each other in matters of trade is an abuse of the original intent of the clause. Those who would justify the regulatory monstrosity that is directed by the executive branch of our government are either misguided or ill intentioned.
The Supremacy Clause
Finally, we are told that states cannot defy federal law because federal law is Supreme. Well, in a certain sense this is true, however, nullification does not promote defying federal law. It promotes the nullification of attempts at law. In other words, nullification is the process by which states refuse to adhere to an invalid legislative act. The state is declaring that no law exists because it is an attempt to exercise power not delegated. Here is the Supremacy Clause:
The “Supremacy Clause ” of the U.S. Constitution is contained in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
First let us demonstrate that there are two different constitutions mentioned in this clause. It opens with the term “This Constitution” which refers to the Constitution of the United States. It also mentions near the end: any Thing in “the Constitution” or Laws of any State to the Contrary notwithstanding. “the Constitution” is referring to individual state constitutions. So the clause clearly states that federal law trumps state law, but the terms “made in Pursuance thereof” and “under the Authority of the United States” serve to illustrate that the legislative act must be legitimate in order for it to be supreme. A legislative act which is null or un-Constitutional, is not a law and cannot hold the status of Supremacy.
If one wishes to understand more fully how the colonist viewed legislative acts, I recommend reading the Declaration and Resolves of the First Continental Congress of October 14, 1774. It illustrates clearly, that lawful bodies do not always act lawfully and that free men are duty bound to Petition their Government for a Redress of Grievances and to nullify unlawful acts and even take up arms when necessary to correct abuses. Since these United States are organized into free Republics, our first and rightful remedy is for our States to interpose on our behalf and nullify unlawful acts of Congress.