Nullification

By Karen Schumacher

Much has been written about the difficulties that are in abundance throughout America, but often there are few concrete solutions offered that can be instituted for correction.  Taking a look at what our Founders saw as solutions may be a place to start.  What options were made available to states for reigning in a government that has exceeded its Constitutional boundaries?  Perhaps one such approach not explored enough is nullification.

In Federalist No. 78 Alexander Hamilton stated, “…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”

Presidents can use veto power to reject what they perceive as unconstitutional laws.  George Washington was the first to do so.  James Madison was another with the Establishment clause.  What has happened to the integrity of the Executive Branch over the years leading that branch to signing laws that are unconstitutional?

Through the years various presidents have chosen to just ignore laws based on their belief the law violates the Constitution, by not enforcing them rather than a veto.  But in the end, who has the authority to determine if a law is unconstitutional or not?  Do states carry that authority?

Thomas E. Woods, Jr. is a Libertarian and author who spoke about nullification in a 2010 interview.  During the interview he raised some interesting points.

As early as 1798, James Madison was well aware of the federal government already exceeding its enumerated powers through “the abuse of the “necessary and proper” clause” and encouraged Thomas Jefferson to elicit public opinion on those abuses.  Both Madison and Jefferson argued against the Alien and Sedition Acts which uncannily mirror issues of today.  It was also during this time Jefferson declared “that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” and Madison declared “the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil,”  Neither mentioned any other means of determining whether a law is constitutional or not.

Ironically at that time, a Congressman was re-elected to Congress from jail, having been imprisoned for his criticism of the president.  Does that not sound familiar?  Perhaps it does justify the recent Supreme Court decision that an individual cannot not be banned from a ballot.

Not present at the time was the federal monetary bribery that is so prevalent now.  But what about laws without an attached monetary bribe?  What would happen if all the non-constitutional Environmental Protection Agency (EPA) and attached laws and rules were nullified by Idaho, sending the federal government a thank you very much note but Idaho will have its own environmental protection laws?

The National Guard is referenced in the video.   S1252 was presented this session to prevent National Guard deployment without an official declaration of war by Congress.  This was an effort for Idaho to take back its sovereignty but unfortunately failed.

Some U.S. Supreme Court justices have previously affirmed nullification.  But, there are also those who support the opinion that it is only the federal judiciary holding that responsibility.

In 1788 Samuel Adams stated, “…if any law made by the Federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the Constitution of this State, it will be an error, and adjudged by the courts of law to be void.”

There are multiple examples of the judiciary system being the only system that can determine if a law is constitutional, Cooper v. Aaron, 358 U.S. 1 (1958) being an example, declaring “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation.”

However, attempts at nullification can go either way.  In the case of Printz v United States the right to nullify a federal law was upheld.

Mr. Woods also points out waiting around for a court decision or an election doesn’t work very well in that federal courts are part of the system already, too many things can happen waiting around for an election (like how many more calamities can occur until this November?), and a doofus could end up being elected anyway.  He also has some interesting points about nullification just prior to the civil war, current precarious federal economics, unfunded federal mandates, and the idea of a state having laws to exercise nullification.  Tennessee has the “Restoring State Sovereignty Through Nullification Act” as an example, with other states taking similar actions.

Mr. Woods has written articles about nullification and wrote a book with more information.

How much further has this government expanded itself and destroyed liberties just since this interview was done?  Does Idaho want to start investigating nullification as a possibility for protection against further government intrusion?  Solutions are needed, this is just one possibility to explore.