St. George Tucker’s View of the Constitution of the United States was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. Published in 1803 by a distinguished patriot and jurist, it was for much of the first half of the nineteenth century an important handbook for American law students, lawyers, judges, and statesmen. Though nearly forgotten since, Tucker’s work remains an important piece of constitutional history and a key document of Jeffersonian republicanism.

His strongest point of insistence is on the necessity for governmental power to be restrained within specifically delegated limits. Of course, it is this emphasis on the limitations, rather than the uses, of power that separated the Jeffersonian Republicans from the Federalists. “But, if the efficient force or administrative authority be, altogether, unlimited; as if it extends so far as to change the constitution, itself, the government, whatever be its form, is absolute and despotic. …” By Tucker’s definition, the modern federal government, particularly in its judicial branch, qualifies as despotic. For Tucker, as for Calhoun, society, or the “body politic,” takes precedence always over the government, or state. And for Tucker, unlike Lincoln, the people may resume their sovereignty at any time. The discussion is most of all, perhaps, an answer to those Federalists, like John Adams and Alexander Hamilton, who emphasized the evils of democracy and the need for it to be restrained. Tucker’s arguments about the failings of “aristocracy” can be seen as a reply to the Federalist philosophers and also perhaps as a prophecy of later times. And Tucker’s long explanation of the characteristics and virtues of “confederate governments,” such as the United States, though strange to modern ears, represents a predominant American understanding of his own time and long after.

The concise manner in which the commentator, has treated of the several forms of government, seems to require that the subject should be somewhat further considered: this has been attempted in the following pages; in the course of which the student will meet with considerable extracts from the writings of Mr. Locke, and other authors, who have copiously treated the subject; of which an epitome, only, is here offered for the use of those who may not possess the means of better information.

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by St. George Tucker, excerpted from View of the Constitution of the United States

Having in the preceding pages taken a slight view of the several forms of government, and afterwards examined with somewhat closer attention the constitution of the commonwealth of Virginia, as a sovereign, and independent state, it now becomes necessary for the American student to inquire into the connection established between the several states in the union by the constitution of the United States. To assist him in this inquiry, I shall now proceed to consider: First, the nature of that instrument, with the manner in which it hath been adopted; and, Secondly, its structure, and organization; with the powers, jurisdiction, and rights of the government thereby established, either independent of, or connected with, those of the state governments; together with the mutual relation which subsists between the federal, and state governments, in virtue of that instrument.

I. I am to consider the nature of that instrument by which the federal government of the United States, has been established, with the manner of its adoption.

The constitution of the United States of America, then, is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several states of North-America, and ratified by the people thereof, respectively; whereby the several states, and the people thereof, respectively, have bound themselves to each other, and to the federal government of the United States; and by which the federal government is bound to the several states, and to every citizen of the United States.

1. It is a compact; by which it is distinguished from a charter, or grant; which is either the act of a superior to an inferior; or is founded upon some consideration moving from one of the parties, to the other, and operates as an exchange, or sale: but here the contracting parties, whether considered as states, in their politic capacity and character; or as individuals, are all equal; nor is there any thing granted from one to another: but each stipulates to part with, and to receive the same thing, precisely, without any distinction or difference in favor of any of the parties. The considerations upon which this compact was founded, and the motives which led to it, as declared in the instrument itself, were, to form a more perfect union than theretofore existed between the confederated states; to establish justice, and ensure domestic tranquility, between them; to provide for their common defense, against foreign force, or such powerful domestic insurrections as might require aid to suppress them; to promote their general welfare; and to secure the blessings of liberty to the people of the United States, and their posterity.

2. It is a federal compact; several sovereign and independent states may unite themselves together by a perpetual confederacy, without each ceasing to be a perfect state. They will together form a federal republic: the deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it, in virtue of voluntary engagements. [1] The extent, modifications, and objects of the federal authority are mere matters of discretion; so long as the separate organization of the members remains, and from the nature of the compact must continue to exist, both for local and domestic, and for federal purposes; the union is in fact, as well as in theory, an association of states, or, a confederacy. [2] The state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited by it to the states, but they are constituent and necessary parts of the federal government; and without their agency in their politic character, there could be neither a senate, nor president of the United States; the choice of the latter depending mediately, and of the former, immediately, upon the legislatures of the several states in the union.

This idea of a confederate, or federal, republic, was probably borrowed from Montesquieu, who treats of it as an expedient for extending the sphere of popular government, and reconciling internal freedom with external security, as hath been mentioned elsewhere. The experience of the practicability and benefit of such a system, was recent in the memory of every American, from the success of the revolutionary war, concluded but a few years before; during the continuance of which the states entered into a perpetual alliance and confederacy with each other. Large concessions of the rights of sovereignty were thereby made to congress; but the system was defective in not providing adequate means, for a certain, and regular revenue; congress being altogether dependent upon the legislatures of the several states for supplies, although the latter, by the terms of compact, were bound to furnish, whatever the former should deem it necessary to require. At the close of the war, it was found that congress had contracted debts, without a revenue to discharge them; that they had entered into treaties, which they had not power to fulfil; that the several states possessed sources of an extensive commerce, for which they could not find any vent. These evils were ascribed to the defects of the existing confederation; and it was said that the principles of the proposed constitution were to be considered less as absolutely new, than as the expansion of the principles contained in the articles of confederation: that in the latter those principles were so feeble and confined, as to justify all the charges of inefficiency which had been urged against it; that in the new government, as in the old, the general powers are limited, and that the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdictions. This construction has since been fully confirmed by the twelfth article of amendments, [3] which declares, “that 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.” This article was added “to prevent misconstruction or abuse” of the powers granted by the constitution, [4] rather than supposed necessary to explain and secure the rights of the states, or of the people. The powers delegated to the federal government being all positive, and enumerated, according to the ordinary rules of construction, whatever is not enumerated is retained; for, expressum facit tacere tacitum is a maxim in all cases of construction: it is likewise a maxim of political law, that sovereign states cannot be deprived of any of their rights by implication; nor in any manner whatever by their own voluntary consent, or by submission to a conqueror.

Some of the principal points mutually insisted on, and conceded, by the several states, as such, to each other, were, that representatives and direct taxes should be apportioned among the states, according to a decennial census; that each state should have an equal number of senators; and that the number of electors of the president of the United States, should in each state be equal to the whole number of senators and representatives to which such state may be entitled in the congress; that no capitation or other direct tax shall be laid, unless in proportion to the census; that full faith and credit shall be given in each state to the public acts, records, and proceedings of every other state; that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states; that persons charged with treason, felony, or other crime, in one state, and fleeing from justice to another state, shall be delivered up, on demand of the executive authority of the state from which he fled; that no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned; that the United States shall guarantee to every state in the 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; that amendments to the constitution, when proposed by congress, shall not be valid unless ratified by the legislatures of three fourths of the several states; and that congress shall, on the application of two thirds of the legislatures of the several states, call a convention for proposing amendments, which when ratified by the conventions in three fourths of the states shall be valid to all intents and purposes, as a part of the constitution; that the ratification of the conventions of nine states, should be sufficient for the establishment of the constitution, between the states so ratifying; and lastly, by the amendment before mentioned, it is declared, that 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. Thus far every feature of the constitution appears to be strictly federal.

3. It is also, to a certain extent, a social compact; the end of civil society is the procuring for the citizens whatever their necessities require, the conveniences and accommodations of life, and, in general, whatever constitutes happiness: with the peaceful possession of property, a method of obtaining justice with security; and in short, a mutual defense against all violence from without. In the act of association, in virtue of which a multitude of men form together a state or nation, each individual is supposed to have entered into engagements with all, to procure the common welfare: and all are supposed to have entered into engagements with each other, to facilitate the means of supplying the necessities of each individual, and to protect and defend him. [5] And this is, what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form, between the citizens of each state, respectively, in their several constitutions; it might therefore be deemed somewhat extraordinary, that in the establishment of a federal republic, it should have been thought necessary to extend its operation to the persons of individuals, as well as to the states, composing the confederacy. It was apprehended by many, that this innovation would be construed to change the nature of the union, from a confederacy, to a consolidation of the states; that as the tenor of the instrument imported it to be the act of the people, the construction might be made accordingly: an interpretation that would tend to the annihilation of the states, and their authority. That this was the more to be apprehended, since all questions between the states, and the United States, would undergo the final decision of the latter.

That the student may more clearly apprehend the nature of these objections, it may be proper to illustrate the distinction between federal compacts and obligations, and such as are social by one or two examples. A federal compact, alliance, or treaty, is an act of the state, or body politic, and not of an individual; on the contrary, the social contract is understood to mean the act of individuals, about to create, and establish, a state, or body politic, among themselves. … Again; if one nation binds itself by treaty to pay a certain tribute to another; or if all the members of the same confederacy oblige themselves to furnish their quotas of a common expense, when required; in either of the cases, the state, or body politic, only, and not the individual is answerable for this tribute, or quota; for although every citizen in the state is bound by the contract of the body politic, who may compel him to contribute his part, yet that part can neither be ascertained nor levied, by any other authority than that of the state, of which he is a citizen. This is, therefore, a federal obligation; which cannot reach the individual, without the agency of the state who made it. But where by any compact, express, or implied, a number of persons are bound to contribute their proportions of the common expense; or to submit to all laws made by the common consent; and where, in default of compliance with these engagements the society is authorized to levy the contribution, or, to punish the person of the delinquent; this seems to be understood to be more in the nature of a social than a federal obligation. … Upon these grounds, and others of a similar nature, a considerable alarm was excited in the minds of many, who considered the constitution as in some danger of establishing a national, or consolidated government, upon the ruins of the old federal republic.

To these objections the friends and supporters of the constitution replied, [6] “that although the constitution would be founded on the assent and ratification of the people of America, ye that assent and ratification was to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states, to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state, the authority of the people themselves. The act, therefore establishing the constitution, will not,” said they, “be a national but a federal act.

“That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people, as forming so many independent states, not as forming one aggregate nation, is obvious from this single consideration, that it is the result neither from the decision of a majority of the people of the union, nor from a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no otherwise from their ordinary assent, than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes; or by considering the will of the majority of the states, as evidence of the will of the majority of the people of the United States. Neither of these rules have been adopted. Each state in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation then the new constitution will be a federal, and not a national, constitution.

“With regard to the sources from which the ordinary powers of government are to be derived. The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is national, not federal. The senate, on the other hand, will derive its powers from the states, as political and co-equal societies; and these will be represented on the principle of equality in the senate, as under the confederation. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the president is to be made by the states, in their political character. The votes allotted to them are in a compound ratio, which considers them partly as distinct and co-equal societies; partly as unequal members of the same societies. The eventual election again is to be made, by that branch of the legislature which consists of the national representatives: but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and co-equal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many federal, as national features.

“The difference between a federal and national government, as it relates to the operation of the government, is, by the adversaries of the plan of the convention, supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the constitution by this criterion, it falls under the national, not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. In some instances the powers of the federal government, established by the confederation, act immediately on individuals: in cases of capture, of piracy, of the post office, of coins, weights, and measures, of trade with the Indians, of claims under grants of land by different states, and, above all, in the cases of trials by courts martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate; in all these cases the powers of the confederation operate immediately on the persons and interests of individual citizens. The confederation itself authorizes a direct tax to a certain extent on the post-office; and the power of coinage has been so construed by congress, as to levy a tribute immediately from that source also. The operation of the new government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a national government.

“But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere. In this relation then the government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects, only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure the impartiality.

“If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national, nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in a majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by states, not by citizens, it departs from the national, and advances towards the federal character; in rendering the concurrence of less than the whole number of states sufficient, it loses again the federal, and partakes of the national character.

“The proposed constitution, therefore, even when tested by the rules laid down by its antagonists, is in strictness neither a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of those powers, it is national, not federal; in the extent of them, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.”

4. It is an original compact; whatever political relation existed between the American colonies, antecedent to the revolution, as constituent parts of the British empire, or as dependencies upon it, that relation was completely dissolved and annihilated from that period. … From the moment of the revolution they became severally independent and sovereign states, possessing all the rights, jurisdiction, and authority, that other sovereign states, however constituted, or by whatever title denominated, possess; and bound by no ties but of their own creation, except such as all other civilized nations are equally bound by, and which together constitute the customary law of nations. A common council of the colonies, under the name of a general congress, had been established by the legislature, or rather conventional authority in the several colonies. The revolutionary war had been begun, and conducted under its auspices; but the first act of union which took place among the states after they became independent, was the confederation between them, which was not ratified until March 1781, near five years from the commencement of their independence. The powers thereby granted to congress, though very extensive in point of moral obligation upon the several states, were perfectly deficient in the means provided for the practical use of them, as has been already observed. The agency and cooperation of the states, which was requisite to give effect to the measures of congress, not infrequently occasioned their total defeat. It became an unanimous opinion that some amendment to the existing confederation was absolutely necessary, and after a variety of unsuccessful attempts for that purpose, a general convention was appointed by the legislatures of twelve states, who met, consulted together, prepared, and reported a plan, which contained such an enlargement of the principles of the confederation, as gave the new system the aspect of an entire transformation of the old. The mild tone of requisition was exchanged for the active operations of power, and the features of a federal council for those of a national sovereignty. These concessions it was seen were, in many instances, beyond the power of the state legislatures, (limited by their respective constitutions) to make, without the express assent of the people. A convention was therefore summoned, in every state by the authority of their respective legislatures, to consider of the propriety of adopting the proposed plan; and their assent made it binding in each state; and the assent of nine states rendered it obligatory upon all the states adopting it. Here then are all the features of an original compact, not only between the body politic of each state, but also between the people of those states in their highest sovereign capacity.

Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question; [7] as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty, or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government. The few particular cases in which he submits himself to the new authority, therefore, ought not to be extended beyond the terms of the compact, as it might endanger his obedience to that state to whose laws he still continues to owe obedience; or may subject him to a double loss, or inconvenience for the same cause.

And here it ought to be remembered that no case of municipal law can arise under the constitution of the United States, except such as are expressly comprehended in that instrument. For the municipal law of one state or nation has no force or obligation in any other nation; and when several states, or nations unite themselves together by a federal compact, each retains its own municipal laws, without admitting or adopting those of any other member of the union, unless there be an article expressly to that effect. The municipal laws of the several American states differ essentially from each other; and as neither is entitled to a preference over the other, on the score of intrinsic superiority, or obligation, and as there is no article in the compact which bestows any such preference upon any, it follows, that the municipal laws of no one state can be resorted to as a general rule for the rest. And as the states, and their respective legislatures are absolutely independent of each other, so neither can any common rule be extracted from their several municipal codes. For, although concurrent laws, or rules may perhaps be met within their codes, yet it is in the power of their legislatures, respectively to destroy that concurrence at any time, by enacting an entire new law on the subject; so that it may happen that that which is a concurrent law in all the states today may cease to be law in one, or more of them tomorrow. Consequently neither the particular municipal law of any one, or more, of the states, nor the concurrent municipal laws of the whole of them, can be considered as the common rule, or measure of justice in the courts of the federal republic; neither hath the federal government any power to establish such a common rule, generally; no such power being granted by the constitution. And the principle is certainly much stronger, that neither the common nor statute law of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption: which, not being permitted by the original compact, by which the government is created, any attempt to introduce it, in that or any other mode, would be a manifest breach of the terms of that compact.

Another light in which this subject may be viewed is this. Since each state in becoming a member of a federal republic retains an uncontrolled jurisdiction over all cases of municipal law, every grant of jurisdiction to the confederacy, in any such case, is to be considered as special, inasmuch as it derogates from the antecedent rights and jurisdiction of the state making the concession, and therefore ought to be construed strictly, upon the grounds already mentioned. Now, the cases falling under the head of municipal law, to which the authority of the federal government extends, are few, definite, and enumerated, and are all carved out of the sovereign authority, and former exclusive, and uncontrollable jurisdiction of the states respectively: they ought therefore to receive the strictest construction. Otherwise the gradual and sometimes imperceptible usurpations of power, will end in the total disregard of all its intended limitations.

If it be asked, what would be the consequence in case the federal government should exercise powers not warranted by the constitution, the answer seems to be, that where the act of usurpation may immediately affect an individual, the remedy is to be sought by recourse to that judiciary, to which the cognizance of the case properly belongs. Where it may affect a state, the state legislature, whose rights, will be invaded by every such act, will be ready to mark the innovation and sound the alarm to the people: and thereby either effect a change in the federal representation, or procure in the mode prescribed by the constitution, further “declaratory and restrictive clauses,” by way of amendment thereto. An instance of which may be cited in the conduct of the Massachusetts legislature: who, as soon as that state was sued in the federal court, by an individual, immediately proposed, and procured an amendment to the constitution, declaring that the judicial power of the United States shall not be construed to extend to any suit brought by an individual against a state.

5. It is a written contract; considered as a federal compact, or alliance between the states, there is nothing new or singular in this circumstance, as all national compacts since the invention of letters have probably been reduced to that form: but considered in the light of an original, social, compact, it may be worthy of remark, that a very great lawyer, who wrote but a few years before the American revolution, seems to doubt whether the original contract of society had in any one instance been formally expressed at the first institution of a state. [8] The American revolution seems to have given birth to this new political phenomenon: in every state a written constitution was framed, and adopted by the people, both in their individual and sovereign capacity, and character. By this means, the just distinction between the sovereignty, and the government, was rendered familiar to every intelligent mind; the former was found to reside in the people, and to be unalienable from them; the latter in their servants and agents: by this means, also, government was reduced to its elements; its object was defined, its principles ascertained; its powers limited, and fixed; its structure organized; and the functions of every part of the machine so clearly designated, as to prevent any interference, so long as the limits of each were observed. The same reasons operated in behalf of similar restrictions in the federal constitution. Whether considered as the act of the body politic of the several states, or, of the people of the states, respectively, or, of the people of the United States, collectively. Accordingly we find the structure of the government, its several powers and jurisdictions, and the concessions of the several states, generally, pretty accurately defined, and limited. But to guard against encroachments on the powers of the several states, in their politic character, and of the people, both in their individual and sovereign capacity, an amendatory article was added, immediately after the government was organized, declaring; that 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. And, still further, to guard the people against constructive usurpations and encroachments on their rights, another article declares; that the enumeration of certain rights in the constitution, shall not be construed to deny, or disparage, others retained by the people. The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.

The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task, equally above ordinary capacities, and incompatible with the ordinary pursuits, of the body of the people. But, as it is necessary to the preservation of a free government, established upon the principles of a representative democracy, that every man should know his own rights, it is also indispensably necessary that he should be able, on all occasions, to refer to them. In those countries where the people have been deprived of the sovereignty, and have no share, even in the government, it may perhaps be happy for them, so long as they remain in a state of subjection, to be ignorant of their just rights. But where the sovereignty is, confessedly, vested in the people, government becomes a subordinate power, and is the mere creature of the people’s will: it ought therefore to be so constructed, that its operations may be the subject of constant observation, and scrutiny. There should be no hidden machinery, nor secret spring about it.

The boasted constitution of England, has nothing of this visible form about it; being purely constructive, and established upon precedents or compulsory concessions betwixt parties at variance. The several powers of government, as has been elsewhere observed, are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the constitution, although neither can be properly called the representative of the people. And from hence, the union of these powers in the parliament hath given occasion to some writers of that nation to stile it omnipotent: by which figure it is probable they mean no more, than to inform us that the sovereignty of the nation resides in that body; having by gradual and immemorial usurpations been completely wrested from the people.

6. It is a compact freely, voluntarily, and solemnly entered into by the several states, and ratified by the people thereof, respectively: freely, there being neither external, nor internal force, or violence to influence, or promote the measure; the United States being at peace with all the world, and in perfect tranquility in each state: voluntarily, because the measure had its commencement in the spontaneous acts of the state-legislatures, prompted by a due sense of the necessity of some change in the existing confederation: and, solemnly, as having been discussed, not only by the general convention who proposed, and framed it; but afterwards in the legislatures of the several states, and finally, in the conventions of all the states, by whom it was adopted and ratified.

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Clyde Wilson was a professor of history but is recovering nicely, thank you. He is the editor of The Papers of John C. Calhoun.

Born in St. George, Bermuda, Tucker traveled to Virginia to study law at the College of William and Mary in 1772, where he was a member of the F.H.C. Society, and was approved for the bar on April 4, 1774. He then settled permanently in Williamsburg and began practice in the county courts. He served in the Virginia militia and cavalry in the American Revolutionary War. During the revolution, he was a colonel in the militia and later commanded the Chesterfield Militia, and saw action at the Battle of Guilford Court House and the Siege of Yorktown. In 1796, Tucker wrote a controversial pamphlet addressed to the General Assembly of Virginia which stated that the abolition of slavery was of “great importance for the moral character of the citizens of Virginia.” Read Tucker’s full bio at History.org

NOTES:

[1.]Vattel.

[2.]Federalist, No. 9.

[3.]Editor’s note: Here, and throughout, Tucker, somewhat disconcertingly, refers to the Tenth Amendment as “the twelfth article of the amendments.” At the time he wrote his lectures, there were twelve proposed amendments current, two of which, however, were never ratified.

[4.]Editor’s note: Here Tucker quotes from the preamble of the congressional resolution proposing the amendments which became known as the “Bill of Rights.”

[5.]Vattel.

[6.]Editor’s note: From this point to the end of section 3, Tucker quotes directly from The Federalist, No. 39.

[7.]Vattel.

[8.]Blackstone.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” – James Madison, Federalist 45

Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, “the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state”.

Read that again: “The legislature of the state of Montana hereby nullifies the REAL ID Act”. Nullifies. Hmmm, there’s a word we haven’t seen in awhile, and with good reason. You see, the word “nullify” like its conceptual kissing cousins “secession,” “states rights,” “delegated powers,” and sometimes even “Constitution” belongs to a special class of political four-letter words, so called for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.

For this reason it’s understandable that the use of this little three-syllable word “nullify” will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word ‘nullify’ when commenting on Diane Rice’s bill, stating that it “is simply a synonym for ‘repeal’ and carries little significance beyond demanding that the federal government reverse its law.” Technically, what Harper says is true; the word “nullify” can be used as a synonym for “repeal,” although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using ‘repeals’ in place of ‘nullifies’ in the sentence that I quoted from Ms. Rice’s bill. When you do this, you get: “the legislature of the state of Montana hereby repeals the REAL ID Act of 2005.” Nope, I’m sorry, Hal, but this doesn’t work. Montana didn’t pass the REAL ID Act, so it can’t very well repeal it; and nowhere in Ms. Rice’s bill do I see any call for the federal government to “reverse its law”. The bill simply states that the REAL ID Act “is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution,” and that the state “nullifies” it “as it would apply in this state.”

This language seems pretty clear to me. Ms. Rice’s bill says that Montana doesn’t like the REAL ID Act, doesn’t think it’s constitutionally sound, and won’t have anything to do with it. End of story.

But a state can’t do that…can it?

Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts — this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same – surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that’s the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley. Ask Rush Limbaugh if you don’t believe me. “Might makes right” is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it “patriotism,” while simultaneously demonizing his opposition as “anarchists” and/or “anti-American.”

However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:

What is Nullification?

From the Random House Unabridged Dictionary:

Nullify – (verb)

1. to render or declare legally void or inoperative: to nullify a contract. 2. to deprive (something) of value or effectiveness; make futile or of no consequence.

Thus, when a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective’, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

A Short History of Nullification

Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various “personal liberty laws” that Northerners enacted in defiance of federal fugitive slave laws).

And now, with that short introduction out of the way, let’s get to the meat of the issue.

Is Nullification Constitutional? Compact Theorists versus Nationalists

In his opposition to South Carolina’s decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could “annul a law of the United States,” arguing that nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the “people of the United States” in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865) may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.

Is the Union a Consolidated Nation-state, or a Confederation of States?

Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that “these United Colonies are, and of right ought to be free and independent states.” The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: “At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one.”

Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, “All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance…” The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.

The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States.” Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.

In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only “between the states so ratifying the same” (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: “I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible.”

Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, “between the states”) demonstrates for us. Patrick Henry, speaking in Virginia’s ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by “the people of the United States”; however, James Madison countered that idea. “Who are the parties to it?” asked Madison, “the people — but not the people as composing one great body — but the people as composing thirteen sovereignties.” As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a “national government…consisting of a supreme legislative, judiciary, and executive,” but the plan had been rejected, and the word ‘national’ had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a “compact” to which the states had “acceded” (agreed to join) and the new Union as a “confederacy” and a “confederate republic.” The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: “Different confederacies have different powers, and exercise them in different ways…great latitude, therefore, must be given to the signification of the term.”
Sovereignty and State Powers within the Union
Those who reject doctrines such as nullification and secession often point to the “Supremacy Clause” in Article VI of the Constitution, where we read: “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 not withstanding.” Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.

The powers of the federal government are, as the Constitution itself clearly states, “delegated,” not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

And…

But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger 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. Hence we perceive that the clause which declares the supremacy of the laws of the Union…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. . .

These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:

Kentucky Resolution: “The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States. . . that to this compact each State acceded as a State. . . that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself. . .”

Virginia Resolution: “RESOLVED. . . That this Assembly most solemnly declares a warm attachment to the Union of the States. . . That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact. . .”

A Constitutional Right to Resist

It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are “acts of usurpation,” as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.

In light of this, Andrew Jackson’s assertion that nullification is “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed,” is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by “oath or affirmation”. It is absolutely authorized by the Constitution’s “spirit,” which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The “great object” for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:

Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments. . .

Nullification – a state exercising its natural right to self-defense in protecting its reserved rights and powers – is not destructive of any of these things that Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other “police actions” and “peace-keeping missions,” none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very “diseases of faction” that Madison and others feared. And as for those “military establishments which have subverted the liberties of the old world,” we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic “crisis” situations, with or without state cooperation and permission.
Responses to Two Common Objections
What about the Courts?

Some of you who read this article will inevitably ask: “What about the federal courts? Aren’t they supposed to determine the constitutionality of a law or a given action?” Over time, nationalists — thanks primarily to Chief Justice John Marshall’s decisions early in the country’s history — have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is “not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”

The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution’s greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all “cases in law and equity arising under this Constitution,” and Article VI states that the Constitution is the “supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing.” As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt — or, as Hamilton once put it, “evident” — violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a ‘separation of powers’ issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.

Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how “Judge so-and-so” votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.

The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.

The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson’s solution to the clash of federal versus state authority and constitutional ambiguities:

But the Chief Justice [Federalist John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.

Wouldn’t Nullification lead to Anarchy?

Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!

The assumption here seems to be that, should nullification ever come into fashion, that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:

First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles — such as providing for the common defense — and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, “It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions.” As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.

Secondly, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between Washington and the states, except in instances where opposing political parties are involved.

Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.

Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.

Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds — New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska’s case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not recognize Daylight Savings Time. Nebraska has the country’s only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.
Conclusion
Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution’s fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, “The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so.”

The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry ‘papers’. If the State of Montana decides to nullify this so-called ‘law’, it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana’s elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.

Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place — while such is still possible. Benjamin Franklin once said, “We have given you a Republic, if you can keep it.” Simply put, nullification is all about “keeping it”.

Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. He was born and raised in Northern Virginia, now lives in South Carolina with his family, and is pursuing a career as a freelance writer. He maintains a blog at jeffersonian73.blogspot.com.

Early American political thought about the Union’s nature was divided into two radically different perspectives. One of these was expressed by Thomas Jefferson’s 1798 Kentucky Resolutions, which viewed the Union as a loose compact of the states, whose legislatures could overrule and judge  the constitutionality of the federal government’s actions.

The South Carolina Declaration of Causes (1860) and the Mississippi Resolutions (1861) developed this position-using Jefferson’s premises to justify Southern states’ secession from the Union.

Jefferson portrayed the Union as voluntarily entered into by the states; the states were “not united on the principle of unlimited submission to their general government” (KR, 153).

The Union was created by the ratification of the Constitution, which served as a “compact” by which the states “delegated… certain definite powers” to the general government (KR, 154).

The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate. For Jefferson, the Constitution both defined and limited the Union’s nature and essence.

To keep the national government one of limited and expressly delegated powers, Jefferson warned that it should not be “the exclusive or final judge of the extent of the powers delegated to itself” (KR, 154), since that would allow the government to define the scope of its powers and dissociate these powers from their original source-the states.

The states-as parties to the Constitutional compact- have no common judge among them; hence, “each party has an equal right to judge for itself, as well of the infractions as of the mode and measure of redress” (KR, 154). Jefferson acknowledged state legislatures’ right to judge federal actions’ constitutionality.

The South Carolina and the Mississippi legislatures agreed with Jefferson that the Union was a compact among the “free and independent states,” whose sovereignty was asserted in the 1776 Declaration of Independence (SCDC, 310).

In 1787, deputies sent by the states affirmed the “Articles of Union”-the Constitution-which defined the Union and required the states’ consent to take effect (SCDC, 311). The South Carolina Declaration emphasized that-while only nine out of thirteen states needed to ratify the Constitution for it to be adopted-those that refused to ratify it would have remained “separate, sovereign states… exercise[ing] the functions of… independent nation[s]” (SCDC, 311).

Via the Tenth Amendment, the Constitution assured that all powers not expressly delegated to the national government were left to the states or the people, while the federal government remained “limited to the express words of the grant” (SCDC, 311).

In the Southern legislatures’ view, the Constitution established the “law of compact” (SCDC, 311), which required mutual reciprocity of obligations on behalf of all parties to the Union.

If any party-such as the Northern states-refused to fulfill its Constitutional obligations and infringed on the rights of the other parties, the Union was dissolved and “the ends for which this government was instituted have been defeated” (SCDC, 312).

The Mississippi Resolution asserted that whenever the compact is thus destroyed, “parties to the compact have the right to resume, each state for itself, such delegated powers” (MR, 314) as they had formerly granted the national government.

According to the Mississippi Resolution, the Northern states’ explicit unwillingness to enforce the Constitution’s fugitive slave clause justified the Southern states’ secession from the Union (MR, 315).

Jefferson’s Kentucky Resolutions and the declarations of the South Carolina and Mississippi legislatures viewed the Union as a compact of sovereign states that retained broad powers and could exercise them to counter federal abuses.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.