Nullification is against U.S. Constitution, not “requisite for freedom”


I hate to break it to the folks at the 10th Amendment Center, but nullification is not a requisite to freedom.

State nullification, a major political theme in the Tea Party and a topic brought up in the Expose Obama email list, is explicitly against the U.S. Constitution.

Here is the Supremacy Clause of the United States Constitution (Article VI, Clause 2):

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, anything in the constitution or laws of any state to the contrary notwithstanding.

It is really that straight-forward.

If you support “nullification” then you oppose one of the most important elements in preserving and protecting American freedoms against the political whims of the few.

Think about it for a second… If states could “nullify” Federal law, then states could legalize child labor and slavery, they could release toxic pollution into other states, they could take away a woman’s right to vote, or deny a woman health care. There are so many reasons why it is an important aspect of the Constitution and our basic freedoms as Americans that we hold dear.

The fact that these numbskulls think that they can destroy these basic American freedoms, or put them in any sort of jeopardy, just because they disagree with certain commercial regulations only goes to prove that the Founders had the best in mind for the country when they inserted the unambiguous language of the Supremacy Clause.

Update (3:01 PM 2/13/2011): I have answered two comments opposing my views in the comments section below. Check them out and leave your own comments if you want.

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20 Responses to Nullification is against U.S. Constitution, not “requisite for freedom”

  1. Austin Holthaus says:

    You are correct, when federal law is made IN PURSUANCE of the constitution, but when it is not, it is null and void.

    In the New York Ratifying Convention of 1788, Alexander Hamilton stated:

    “I maintain that the word supreme imports no more than this- that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government. The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”

    Also he said the following in Federalist 33:

    “But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”

    You need to do some more research on the Founders thought if you believe ANY law made by Congress and signed by the President was to be supreme. The Virginia and Kentucky Resolutions of 1798 are a good start if you want to understand nullification.

    • Let’s take these points one at a time.

      First, Alexander Hamilton’s quotation at the NYS ratifying convention:

      “…the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law.”

      Correct. State laws can never trump Constitutionally-valid Federal laws. That is abundantly clear. Continuing with the same quotation:

      The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”

      Correct. The laws of Congress are judged by the U.S. judiciary, and if and when any law is found unconstitutional, the law or the unconstitutional provision in that law is struck down.

      As for Federalist #33, here is the rest of the paragraph that you posted:

      Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

      As you can see, Mr. Hamilton found that the idea that Federal laws trump State laws to be a given. The only occasion where this is not the case is when said Federal law is found unconstitutional.

      And the next sentence is why Nullification is not a serious possibility… Who finds whether a Federal law is unconstitutional or not? Is it the states? NO! It is the Supreme Court of the United States of America.

      Nullification says that it is the STATES who can reject a law if THEY think the law is unconstitutional. But, as you can clearly see, that concept would essentially call for the rejection of the Supreme Court as an institution. That idea is something that is such an egregious assault on American liberty that the Founders wrote the SCOTUS into the judiciary just to protect America from people who would subvert the law of this land in this way.

  2. ummmm…

    No. You are totally misrepresenting the supremacy clause. Let me just quote Tom Woods who explains why you are incorrect very succinctly:

    This may be the most foolish, ill-informed argument against nullification of all. It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism. It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

    Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

    What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

    In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

    Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

    As for your other assertions, such as, “If you support “nullification” then you oppose one of the most important elements in preserving and protecting American freedoms against the political whims of the few.”

    Tom addresses those too. He wrote:

    t is far more likely that states will be too timid to employ nullification. But the more significant point is this: if the various states should have different policies, so what? That is precisely what the United States was supposed to look like. As usual, alleged supporters of “diversity” are the ones who most insist on national uniformity. It says quite a bit about what people are learning in school that they are terrified at the prospect that their country might actually be organized the way Americans were originally assured it would be. Local self-government was what the American Revolution was fought over, yet we’re told this very principle, and the defense mechanisms necessary to preserve it, are unthinkable.

    “Part of the reason the idea of nullification elicits such a visceral response from establishment opinion is that most people have unthinkingly absorbed the logic of the modern state, whereby a single, irresistible authority issuing infallible commands is the only way society can be organized. Most people do not subject their unstated assumptions to close scrutiny, particularly since the more deeply embedded the assumption, the less people are aware it exists. And it is this modern assumption, dating back to Thomas Hobbes, that – whether people realize it or not – lies at the root of nearly everyone’s political thought. Not only is this assumption false, but (as I discuss in the book) the modern state to which it gave rise has been the most irresponsible and even lethal institution in history, racking up debts and carrying out atrocities that the decentralized polities that preceded them could scarcely have imagined. Why it should be given the moral benefit of the doubt, to the point that all skeptics are to be viciously denounced, is unclear.”

    Have you any other objections? They are probably addressed adequately here:

    • Obviously, any Federal law, or aspect of any Federal law, that is found unconstitutional is null and void. That is not what you are suggesting in advocating for Nullification. What you are suggesting is that STATES have the power to determine what is, and is not, unconstitutional!

      This is a fundamental, and egregious, undermining of the Supreme Court of the United States, an institution whose sole purpose on the Earth is to determine if laws abide by the Constitution.

      Like I said, Nullification — the idea that a state can decide on its own whether or not a Federal law is unconstitutional — is a direct assault on the institutions that give us liberty and freedom in this country and have done so for well over 200 years.

  3. Austin Holthaus says:

    Thomas Jefferson explained in the Kentucky Resolutions, “…but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

    The Constitution of the United States, and its amendments, is a grant of power from the people of the several States (ratifiers) to the General Government of the Republic. Therefore, the people are the principles and the General Government is the agent. The General Government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the States and the people. The enumerated powers are few and specific and thus outlined mostly in Article 1, Section 8. The reserved powers were, and are still, too vast to enumerate in the Constitution, therefore they are not listed.

    Any venture into reserved powers is an usurpation by the General Government, including rulings by the Federal judiciary. As a party to the Constitutional compact, the states then have the duty to intercede on behalf of their citizens.

    Clearly nullification is a measure of last resort, next to right of secession, when all three branches of the General Government are usurping their own authority or it is clear that their actions are usurpations. For example, without an Amendment, mandating citizens purchase a product from the General Government is clearly a usurpation…it would have been in 1788 and is still today. States do not need federal permission to intercede as an equal party to the Constitution. There is no common judge in this case as the federal judiciary resides in the General Government.

    Your premise that the General Government (Federal courts) maintains the sole authority to determine the limits of its own power is inherently flawed. That puts the agent above principle. The question is who gets to decide? Clearly, the principle gets to decide.

    • For example, without an Amendment, mandating citizens purchase a product from the General Government is clearly a usurpation

      Since that isn’t being called for in the law, it is clearly not a usurpation, and your objection is fraudulent.

      Frankly, your comments only prove my point that people who support state nullification of Federal law are using the PPACA to advance a far more sinister and destructive goal, the undermining of the Federal judiciary.

  4. Austin Holthaus says:

    Let me clarify….without an Amendment mandating citizens purchase a General Government approved product or face a fine is clearly usurpation. A null and void law made outside the enumerated powers of the General Government is null and void from the start and requires no court to establish such.

    Beyond that, you fail to understand the history of the Constitutional Convention, the ratification of the Constitution, and the principles upon which it was ratified. There is nothing sinister or destructive about adhering to the principles of self government, republicanism, and federalism just as there is nothing sinister or destructive about applying the principles of the Declaration of Rights and Grievances and the Declaration of Independence to today’s world.

    • I disagree. It is clearly within the Commerce Clause. But since you are ideologically opposed to the concept of judicial review, then your only recourse is nullification by the states, which is against the Constitution by virtue of the Supremacy Clause.

      You fail to understand that the Founders wrote into the Constitution that the judiciary was to be part of the federal government in order to act as a check on the executive branch and legislative branch. The fact that you oppose the very framework of the federal government IS destructive and sinister. You refuse the Supreme Court for what it is, by nature, and you do so without any proof nor even a suggestion as to why you think they are incapable of ruling independently on this issue. You meerly state that because you disagree with one provision, out of hundreds in the law, the federal judiciary is to be bypassed entirely. The very idea is so blatantly against the Constitution and against legally-accepted precedent as to be farcical.

  5. Austin Holthaus says:

    I trust the understanding of the boundaries of the Supremacy Clause as it pertains to the principles of Nullification, and the history which created both, to the individuals who drafted the Declaration of Independence and the United States Constitution over modern day Statists.

    • “Modern day statists” like Chief Justice William Rehnquist?

      “It seems to me that a major reason the Constitution has kept the ship of state afloat is the existence of an independent judiciary as a co-equal branch of our federal government. It is easy today to see the need for an independent judiciary, with the authority to enforce the terms of a written constitution, but back in 1787, when the Founding Fathers were drafting our Constitution, it was an entirely novel concept. I believe that the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by the state or federal legislatures, is probably the most significant single contribution the United States has made to the art of government.

      When Thomas Jefferson wrote the Declaration of Independence in 1776, one of the reasons he gave for the need to declare independence from Great Britain was that King George III “ha[d] made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.” The drafters of the Constitution addressed this in Article III of our Constitution, which confers upon the judiciary life-long tenure during good behavior, and contains a prohibition against diminution of compensation while in office. Article III judges can only be removed from office through the mechanism of impeachment.

      …Without an independent Judiciary, the Constitution may not have survived to, as Chief Justice Taft said, “secur[e] the blessings of individual liberty to all the people of the United States under a government of law and order.” And much of the credit is due to the foresight of the drafters of these Charters.”

      — Chief Justice William Rehnquist’s Rededication Remarks at the rededication of the National Archives (September 17, 2003)

      Please. “Statist”! Because of the Founders you have the right to have an opinion as wrong as yours. Congrats. The rest is for the courts to decide.

  6. Austin Holthaus says:

    I never said an independent judiciary was unnecessary or unimportant. However, if a law is null and void from its onset, they play no part in determining its fate. There is little evidence that the Founders were leaving the fate of the American individual’s liberty solely in the hands of the judiciary or the rest of the General Government. There is a great deal of evidence that they were leaving the fate of the American individual’s liberty in the hands of the States or in his own hands. They had a great distrust of centralized authority and were jealous of their State sovereignty.

    The discussion over Nullification is not about an independent judiciary, it is about the natural authority under American federalism and republicanism of the State to interceded on behalf of its sovereign citizens when the General Government exceeds its delegated authority. As a party to the Constitutional compact, the States have the right and duty to keep the General Government within the confines of its delegated powers just as the General Government has the right and duty to enforce duly made laws.

    • I never said an independent judiciary was unnecessary or unimportant. However, if a law is null and void from its onset, they play no part in determining its fate.

      Do you even hear yourself? Who decides if a law is “null and void”? You? God? The mechanism for determining if a law is null and void is the courts. To suggest anything else is preposterous.

      The 10th amendment to the U.S. Constitution could apply when all three branches fail egregiously in their constitutional duty to protect the people from an overtly corrupt system. For example, President X signs an executive order declaring that he is King of America for life, the legislative branch plays along, and the Supreme Court rules against any challenges to the new king’s supreme power. That is why there is a 10th amendment. It is not for states to determine which rules and regulations they want to follow, it is for egregious corruption the likes of which we have never before seen in this country. That is why nullification has failed miserably each time it has been employed and why it will fail again in the current case where pure partisanship and naked politics has taken precedence, among a certain miniscule minority of people, over our legal institutions.

  7. Austin Holthaus says:

    Wow…you are angry. Concerning judicial review and your citing the Commerce Clause:

    Let me cite Raoul Berger, a former Professor at Harvard Law School. He found in his research that judicial review as in fact discusses and provided for by the Founders. His “Government by Judiciary” provides some important insights on the limits of judicial review:

    “It is true that the power [of judicial review] has long been exercised, but whether it “exists” – has constitutional warrant – is something else again. Edmond Cahan, however, opined that “it is too late to reopen the question of whether the Court ought to determine constitutional issues.” On the contrary, it is never too late to challenge usurpation of power; one gains no title by prescription against the government, still less against the sovereign people. Power reserved to the people by the Tenth Amendment cannot be taken over by “squatter sovereign.” “It will not be denied,” Chief Justice Marshal stated, “that a bold and daring usurpation might be resisted after tan acquiescence still longer and more complete than this [citing M’Culloch v. Maryland].” In Erie Ry. Co. v. Tompkins the Court, per Justice Brandeis, branded ITS OWN [emphasis added] course of conduct stretching over one hundred years as “unconstitutional,” in a situation not nearly as important as the “enormous power” to impose the judicial will upon the nation. Usurpation – the exercise of power not granted – is not legitimated by repetition [citing Powell v. McCormack].”

    Berger goes on to establish that one cannot overlook “the fact that under a Constitution which delegates and limits power, the burden is on the claimant too the source of his power – failing which, it is a usurpation.”

    In the concluding chapter, Berger continues:
    “Whence does the Court derive authority to revise the Constitution? In a government of limited powers it always needs to be asked: what is the source of the power claimed? “When a question arises with respect to the legality of any power, said [Richard Henry] Lee in the Virginia Ratification Convention, the question will be, “Is it enumerated in the Constitution?…It is otherwise arbitrary and unconstitutional.” Or, as James Iredell put it, a law “not warranted by the Constitution…is bare-faced usurpation.” Hamilton made it clear that action not warranted by the Constitution is no less usurpation at the hands of the Court than of a President.”

    The Founders believed in a fixed Constitution of unchanging meaning when it was adopted as noted by multiple sources including Justice Joseph Story, who wrote “a constitution in not to be made to mean one thing at one time and another some subsequent time when the circumstances may have [changed].” So my question to you is; what is your source for claiming that the Federal Government has the authority to mandate the American individual purchase a federally approved product or pay a fine? You cite the Commerce Clause without any evidence. Please provide the historical record that links the understanding of the clause to the mandate. Where in the Constitutional Convention debates, explanation by the supporters of the Constitution to the ratifiers, or the State ratification debates does the support for such authority exist? Without citing one of those sources or a duly passed Amendment, there is no grant of authority.

    • Let us look at the text of the Commerce Clause:

      Article I, Section 8, Clause 3:

      [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

      The law that has gotten the Tea Party all worked up is the PPACA. The PPACA is, by its very nature, a law that regulates commerce among the several states with regard to health care and health insurance.

      The only constitutional dilemma within the law is whether or not the so-called “individual mandate” provision — one of hundreds of provisions in the law — is in accordance with the Consitution. The argument for its constitutionality is that while commerce typically refers to commercial activity, it also can apply to commercial inactivity. Congress has the right, through one of the enumerated powers defined in the Constitution, to regulate commerce among the several states. When commercial inactivity, in aggregate, has an affect on the country’s economy, Congress can regulate that inactivity. When such commercial inactivity does or does not have an effect on interstate commerce is for the federal judiciary to decide. Opinions on whether or not inactivity in this manner can be regulated under the Constitution are clearly mixed, and so it remains to be determined by the high court.

      But to imply, as you have, that legal precedent is unimportant and that the only way to determine the viability of judicial review on this matter is to quote non-binding discussion amongst the Founders before, during, or after ratification of the Constitution is to, again, undermine the import of the ratified text itself. Your selective quotation of comments with which you agree, while ignoring the ratified text and the hundreds of years of legal precedent is simultaneously absurd and comical.

      The fact that your evidence to “prove” the malfeasance of judicial review includes citation of judicial precedent further exemplifies the absurdity of your argument, in my view.

      • Austin Holthaus says:

        So you can’t find a constitutional source for the individual mandate, which is the key and inseparable from the rest of the bill? You are waiting for the courts to make one up despite no historical evidence to make the case.

      • The Commerce Clause is the constitutional source.

        Once again, I find your lack of faith in the judicial institutions that were defined in the Constitution disturbing.

  8. Austin Holthaus says:

    Since you won’t provide any facts or evidence that support the individual mandate, other than continually referring to the Commerce Clause, of which you never identify what that clause means to the case, I can’t have a genuine debate w/you.

    The meaning of the Commerce Clause, as understood and accepted by the State Constitutional Conventions, provides no authority for the individual mandate. Without the individual madate, because it is not severable, the entire law collapses. There is a proper way to change the understood meaning of the Constitution, what the ratifiers understood the terms of agreement to be, through the Article V Amendment Process. You are not interested in pursuing an amendment.

    You decided I am against judicial review, re-read my comments and you will see I never said any such thing. You decided I am against an independent judiciary, re-read my comments and you will see I never said any such thing. What I do say is usurpation, by any branch of the Federal Government or in combination, is still usurpation. Repeating it doen’t legitimize the usurpation.

    There are just laws and unjust (or unconstitutional) laws passed by legislatures (State and Federal), why is it so hard to believe there are just and unjust (or unconstitutional) judicial rulings? I’m sure there are some rulings you disagree with.

    Per your President king example, who gets to decide “egregiously” or “overly corrupt”? To say it in your words, “You? God?”

    • This was published a half hour ago in the Associated Press:

      Judge tosses suit against Obama health care plan

      …Kessler rejected both arguments and ruled that Congress has the right to regulate health care spending under the Commerce Clause…

      This will be settled by the SCOTUS, as it should be. If you think the federal judiciary is not competent enough or too corrupt to rule on this case, it is encumbent on you to prove it. If you ideologically believe that the Constitutional compact that was ratified in the 18th century improperly gives the federal judiciary the grant of the people’s authority, then it is encumbent on you to explain an alternative solution and how judicial review would take place in a way that guarantees that your alternative method of review would be free from political influence and corruption. It is also encumbent on you to explain how the government would handle the upending of every single Supreme Court opinion ever written. And it would be encumbent on you to explain what would be the point of having a federal judiciary and a Supreme Court if judicial review of constitutional matters would no longer be carried out by the institution that it was prescribed to in the Constitution, an institution to which the people of the United States granted that authority by ratifying the Constitution. I appreciate your tone in this debate, but your views are, frankly, absurd and extreme.

      • Austin Holthaus says:

        Thanks for the info on Judge Kessler’s ruling.

        However, you continually put words in my mouth. I never said the judiciary was “not competent” or “too corrupt.” I simply state that judges are no more infallible than any other human. As we both know, even judges have political leanings and these leanings have found their way into federal court decisions and thus become precedent and change the meaning of parts of the Constitution (not the intent of the Framers or Ratifiers). I also never said the Constitution “improperly gives the federal judiciary the grant of the people’s authority.” The evidence as to the original conception of judicial review is exceedingly slim, therefore it is very difficult even for scholars to argue in the positive or negative on its proper role. What is available is the general understanding of the enumerated authority being granted by the ratifiers. That, in my opinion, must be the starting point for any argument concerning a granted power.

        I’ll disagree w/you on my having to prove anything. As I posted earlier, I ascribe to Professor Berger’s statement that “the fact that under a Constitution which delegates and limits power, the burden is on the claimant too the source of his power – failing which, it is a usurpation.” We can disagree on this without being uncivil.

        A good, scholarly reviewed, legal article concerning the Commerce Clause below. I invite you to read it.

        I will agree that undoing the “system” would be difficult and quite possibly unpopular. That doesn’t mean the discussion is not important. That does not mean usurpation has not occurred. While my views may not be “mainstream” enough for you, that does not make them absurd and extreme. I am not advocating for anything that has not previously been stated by the Founding Generation or others over the years based on a review of historical facts. I have provided several sources that have shaped my views while you have only provided one quote from Chief Justice William Rehnquist along with the assertion that I am an idiot. I urge you to read The Virginia and Kentucky Resolutions, Madison’s Report of 1800 along with scholarly works by Raoul Berger, Robert Natelson, and others (if only to check out the vast source material they use to make their arguments).


      • Well Austin, I apologize for calling you an idiot. I generally like discussing constitutional issues, but especially so under civil circumstances.

        I do believe, however, that your views are extreme. And while “absurd” may not be the best word, maybe “impractical” would be a better choice. If there was a stated interest in improving judicial review to disallow what you consider “usurption” but which would not result in the overturning of every judicial decision ever made, I think that at least then, philosophically, this discussion can be fruitful. I am open to any civil discourse so long as the ends being sought do NOT — either willfully or unintentionally — result in dramatic changes to our current system of government. For example, I believe in civil rights and women’s rights, environmental regulation, labor regulation, and financial regulation at the federal level. Any major modification to judicial review that would overturn these precedents — which I believe, very strongly, have set the foundation for prosperity in modern America — are, to me, a total non-starter and philosophically unacceptable.

        I have read many of the source documents and links you have provided. I simply don’t subscribe to the philosophy that you do, which I believe would essentially call for the upheaval of the judicial system as we know it.

        I do, however, firmly believe that states have the right to assert their authority — i.e. in the case of the health care law, the states’ attorneys general have every right to challenge the health care law. But I also believe that the Supreme Court is the ultimate arbiter of the constitutionality of a law, and as they rule, then that is the prescription that must be followed. We are, after all, a nation of laws not of men. Along those same lines, it is clear that power is granted to the representatives of the people of the United States to remove, by impeachment and conviction, any federal judge who is seen to operate under what is not considered “good behavior.” So if certain justices, or all justices, are seen to be corrupted, then it is incumbent on the people of the United States to pressure their political representatives to engage in the impeachment process or else suffer the political consequences.

        So, at the end of the day, while the SCOTUS is the ultimate arbiter of laws in our country, the power over the federal judiciary does firmly reside in the mandate from the people. And it is, and always has been, up to the people of our country to exercise that mandate.

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