What is state nullification?


Nullification is any act, or set of actions, taken by a state legislature that find a federal act unconstitutional, and render it null, void or simply inoperable in that state. This would include any state-level act to block federal violations of the Second Amendment.

Where did nullification originate?


It finds its basis in the very structure of the Republic. The people of 13 independent, sovereign states agreed to form a political union and delegated specific, limited powers to the federal government through the Constitution, retaining all other power and authority to themselves. It logically follows that the political societies delegating power retain the authority to determine its extent, and to take steps when the government they created tries to operate outside of those boundaries.

Virginia ratifying convention delegate George Nichols spelled out the principle when he assured his fellow delegates that Virginia would be “exonerated” if the federal government tried to exercise undelegated powers.

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Who first formalized the principles of nullification?


Thomas Jefferson and James Madison first formally articulated the doctrine in the Kentucky and Virginia Resolutions of 1798, responding to the clearly unconstitutional Alien and Sedition Acts. Jefferson asserted that the states were “not united on the principle of unlimited submission to their general government,” and “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” Madison made a similar case in the Virginia Resolutions, arguing 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.”

Doesn’t the Supremacy Clause make nullification unconstitutional?


No. The Supremacy Clause reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land. 

Only laws made in pursuance of the Constitution – that is, in keeping with the powers enumerated to the federal government – stand as legitimate laws. All other acts are usurpation, and by definition null, void and of no force. When Congress passes and the federal government attempts to enforce an unconstitutional act, it breaks the supreme law of the land. That is, by definition, illegal. An illegal act cannot stand supreme.

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…


Doesn’t the Supreme Court make the final determination on the constitutionality of an act?


No. Nowhere is the SCOTUS granted the sole authority to determine the extent of federal power. It is a nonsensical position, since the Supreme Court is itself a part of the federal government. It’s a little like letting a Tennessee player referee a basketball game between Kentucky and the Vols. In fact, the political society delegating the power retains the authority to judge the extent of that power and determine when an overreach exists. Jefferson makes this argument in the Kentucky Resolution of 1798.

The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Madison expounded on the idea in his Report of 1800.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments 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 for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

So who ultimately decides the extent of federal power?


As we already touched on briefly, the people of the states, who delegated that power in the first place.

“We the People” are the sovereign in the system. Not the Congress, not the president, not the courts. The people have the final say. We the people had already created sovereign political societies – states – prior to the ratification of the Constitution. The people only transferred limited powers to the general government and did not dissolve their original political societies. The state governments retain all power except those delegated. It only makes sense that the people of the states retain the authority to determine – in the final instance – the extent of the power they themselves delegated. The proper authority for this determination rests in the state legislatures – the representatives of the people within their original political society.

Many of the ratifying documents made this clear. Take New York’s, for example.

“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.”

Doesn’t the Second Amendment allow some leeway for regulation of firearms, as long as the people maintain the right to own some types of guns?


First, even without the Second Amendment, the federal government still would not have the authority to regulate gun ownership within the borders of a state. The Constitution does not delegate this power to the federal government; therefore it remains with the states and the people.

Secondly, the language of the amendment itself defines much greater restriction on federal power. “The right of the people to keep and bear Arms, shall not be infringed.

Infringe – v: Act so as to limit or undermine (something); encroach on.

The federal government may not constitutionally act in a way that even limits the right to keep and bear arms.

Doesn’t the commerce clause give the federal government the authority to limit the sale and manufacture of firearms?


Article 1 Sec. 8 empowers the federal government to regulate trade between the states, but it was never intended to give the feds the authority to regulate all economic activity. Commerce was narrowly defined by the founding generation. Commerce related specifically to trade and related activities. Not manufacturing. Not agriculture. Certainly not every activity affecting the economy. And the federal commerce power is limited to trade crossing state borders. Its primary purpose was to allow the federal government to facilitate commerce between states and prevent trade wars from breaking out within the U.S. borders. Madison explained the relatively narrow scope of commerce power.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” 

You could argue that the commerce clause does empower the feds to restrict and regulate the sale of guns, ammunition and gun related accessories across state lines. That’s where the Second Amendment comes in. It supersedes the commerce clause. Keep in mind the purpose of the Bill of Rights as stated in the Preamble.

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. 

The Bill of Rights was ratified to further define restrictions on federal power. So in essence, the Second Amendment says, “Hey, federal government – even while exercising legitimate power to regulate interstate commerce, you still may not infringe on the basic right to keep and bear arms.”

Aren’t States Required to Cooperate in Enforcing Federal Laws?


No! Even the Supreme Court agrees that the federal government cannot compel states to enforce federal statutes.

In the 1997 case, Printz v. United States, the Supreme Court held that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

In the 1992 case, New York v. United States, the Court said that Congress couldn’t require states to enact specified waste disposal regulations.

In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.

In each case, the Supreme Court made it quite clear that, in their opinion, the federal government cannot require the states to act, or even coerce them to act through a threat to cut funding.

The federal government cannot compel state agents to support or enforce federal gun laws.

Will noncompliance work?


James Madison thought so. In fact, the laid out the blueprint for battling unconstitutional federal actions in Federalist 46 before the Constitution was even ratified.

Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter. 

In fact, northern noncompliance with the Fugitive Slave Act of 1850 was so effective, several southern states specifically cited northern “nullification” of the law in their declarations of causes supporting secession.

And we have seen large-scale noncompliance effectively nullify federal marijuana laws across the U.S.

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  • published this page 2016-11-10 09:36:09 -0500