by Jeff Matthews
A recurring debate always arises when critics argue with proponents over the language included in various state-level nullification resolutions and bills. They argue over whether certain provisions are lacking, improper, will not be effective, etc. I, too, criticize such language from time to time. It is natural to do so when we think in terms of the “rule of law.â€
However, the “rule of law†is only a fiction for some invisible, greater authority upon which our conduct is claimed to be justified. Let me explain it by this question: Are federal usurpations legitimized if legislative nullification efforts are not successful? Clearly, the continued ability to engage in a wrong does not make it right. So, if our rights to redress for our grievances do not end with our state legislatures, where do they end? In what way are our remedies bounded?
The most limiting aspect of the movement to reclaim state, local and individual sovereignty is that so many proponents are looking to the “rule of law.†The right words – the right concepts in the right place – seem to dictate so many thoughts on the “proper†strategy. Looking back at America’s procurement of its independence from Britain, where did all of our words take us? Britain did not read our declarations, our pleas, and our demands and conclude, “Well, my dear boy, we do believe that makes perfect sense. You shall have your independence. Cheerio!â€
Words mean nothing. Popular sentiment means everything. Do not worry about the “why,†the “how,†and such, when it comes to scriveners’ attempts to accomplish our ultimate objectives. These are just acts of scriveners.
The Constitution says nothing about nullification. Nullification is simply implied out of the fact that there must be some remedy somewhere when the federal government usurps its powers. Most certainly, the Constitution does not prescribe a procedure for nullification. Madison and Jefferson simply made up the procedure they attempted to implement.
Where does it say that in responding to federal usurpation, we may only resort to measures which confine us to not treading on the sovereignty of the federal government? The Constitution is written with an assumption that our respective governments will operate within their confines. It says nothing about the rules of the game when the compact has been breached. It should be clear that in this paradigm, it is a “no-man’s land†where anything can go.
More particularly to this last point is a concept within contract law. Contract law principles are useful to those who view the relationships created by the Constitution as contractual or as a compact. Suppose Paul Plaintiff enters into a contract with Don Defendant to mow Don’s lawn for fifty dollars. Paul shows up with his equipment and is ready to begin when Don says, “I am not going to pay you.†Must Paul still comply with the contract and mow Don’s lawn?
The contract is breached. Once breached, the aggrieved party is no longer required to perform under it. Thus, our efforts to reclaim state, local and individual sovereignty are not restricted in any way. The Constitution does not limit the means by which we may redress our grievances. Therefore, bear this in mind when evaluating legislative measures proposed by local representatives.
Sure, they might be improved in ways that make them better reflect the people’s sentiments, but these words are not what count. What counts is whatever it is that happens when enough people have had enough of the overreaching, corruption and incompetence which emanates from Washington.
Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.
Well said. This concept is one of the most difficult to convey to people who have been hoodwinked into believing we must get permission from someone before we can act.
States are guilty of this passivity, also. And it terrifies our opponents when they see us waking up from our stupor and taking action.
The best explanation of a state's right to nullify an unconstitutional act is spelled out in Jefferson's Kentucky Resolutions. Not only does he make the case that states have the right to reject such laws, he states that the unconstitutional law is, on its face, no law at all. It is, strictly speaking, morally unenforceable. That is not to say that the federal government will not bring other resources to bear to force acquiescence. But forced acquiescence is not the same as legitimacy, and legitimacy is a question of moral rectitude – which unconstitutional acts lack.
You make some good points on this side of heaven. A couple things might be helpful in refining your approach though. First, the Declaration of Independence is the document which sets the standard for nullification. In the Declaration the Founders set forth their covenantal law suit before heaven in terminating the covenant with Great Britian. After that, your contractual analysis of the Constitution is apt. The critical factor is that the Founders were following on a long tradition of making a covenant before God on the limits of Government. You can see this in the Declaration. The Founders, unlike us moderns, understood that God governs in the affairs of men. He is the ultimate judge over nations. He is a God of covenant. See the Book of Deuteronomy as a covenantal document and you will understand that God does respond to covenant faithfulness. We may not understand it, but He does act consistent with covenant faithfulness. So to not worring about the words, while we do not live or die by the words, the words are important.
The Kentucky Resolutions of 1798 and 1799, along with other documents, is at http://constitution.org/rf/vr.htm
But note that Jefferson was calling generally for non-cooperation, without putting any resources behind it, or establishing any procedures for identifying what needs to be resisted and how.
It is not acquiescence that is the issue but non-cooperation. The opposition needs some cooperation, even if it is only from a jury. Acquiescence is convicting the resisters. Non-cooperation is acquitting them. When they can't impanel a jury that will convict we have nullification.
How does Nullification fit in with Social Contract and Separation of Powers? Do the branches of State governments have no weight or influence on the branches of the Federal Government? If this is the case something is amiss with the social contract. It may be that State legislators should be choosing our representatives for the Federal government and not being directly voted for on the ballot. The social contract of the Constitution is breached when a State's branches decision is out of sync with directly elected members of the Federal legislature. When State legislators choose our Federal legislators, the Nullification process is contained within the social contract though direct connection to the States checks and balances.
The social contract is what initially creates society. It is a mutual defense of rights pact. It is not something that changes thereafter. Especially not to add some "right" to entitlements. They are called entitlements to distinguish them from rights.
We have reposted your article at the Daily Tea Party for Tea Party-er consumption and education.
Thanks!
http://dailyteaparty.com/?p=2834
My voting for federal officials should in no way be misconstrued as if to authorize federal usurpation.
My states checks and balances are in no manner dependent upon federal election.
Guest, good point. U.S. Senators were selected by the state legislatures until the adoption of the 17th Amendment, an Amendment we should repeal. See http://www.missourirecord.com/news/index.asp?arti….
Repealing the 17th Amendment is not a good idea. It was adopted for a good reason. Study the history of it. http://constitutionalism.blogspot.com/2010/04/don…