In January, hotair.com reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.  I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

• Nullification would create a patchwork of laws, rendering national governance impossible.
• Nullification was a factor in the lead-up to the Civil War.
• The Constitution grants no authority for the states to nullify.
• The Civil War proved that nullification is not an option.
• The supremacy clause means that the federal government is superior to the state government.

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ to have a place to refer people to find the rebuttal for all of the standard arguments.  This is a work in progress, so if you would like to contribute content for questions and/or answers, please use the contact form to e-mail us your suggestions.  Phineas also made the more unusual argument that when Jefferson and Madison penned the Kentucky and Virginia Resolutions, fourteen other states declined to support them in their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

AND

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.)

Those points led me to submit the following comments…

Steve Palmer says:

January 22, 2011 at 11:14 pm

I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK.  In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one.  Please follow the link for a more detailed explanation.

AND

Steve Palmer says:

January 23, 2011 at 12:00 am

Sorry to follow myself, but while rereading your article, I became intrigued by another point.  Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?  If so, I’d really like you to elaborate on that line of reasoning!

I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof.  I also have an article on that subject here – LINK

It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones.  I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts.  I am very curious to hear your line of reasoning to the contrary.

To my question about whether the northern states should have refrained from nullifying the federal fugitve slave acts, Phineas responded,

January 23, 2011 at 6:36 pm

No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind.  Probably not the best one to use.

I followed up with this comment,

Steve Palmer says:

January 24, 2011 at 9:49 pm

So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

(quote from original post)

“To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.”

In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK.  Anyway, I thought conservatives supported federalism?

In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway.  We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it.  Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete.  You are correct insofar as the states were always opportunistic in their support of nullification.

For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

Which drew this response from Phineas,

January 24, 2011 at 10:22 pm

Hi Steve,

I haven’t read Woods’ book.  I should, since it’s an interesting topic.  In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge.  The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.  The expositions of the judiciary, on the other hand, are carried into immediate effect by force.  The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration?  What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens.  This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights.  Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states.  Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

My response,

Steve Palmer says:

January 24, 2011 at 10:57 pm

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett – http://www.lewrockwell.com/woods/woods147.html

And this seems to be the relevant paragraph,

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution.  Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void.  Nullification merely disallowed the enforcement of a nonexistent constitutionality.  What could be controversial about that?

Here is Madison’s report, which both of them mention – http://www.constitution.org/rf/vr_1799.htm

I’m surprised Woods’ didn’t mention this, but I just took a quick look.  Barnett was apparently careless in selecting his quote.  Madison’s report is organized in sections.  Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government.  Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

Having just finished a course on the New Deal for the Mises Academy, I’m now offering one on state nullification, the subject of my most recent book. I thought my New Deal course covered issues and sources left out of the typical classroom, but in that respect this course has that one beat.

Nullification is the Jeffersonian idea that the states of the American Union must judge the constitutionality of the acts of their agent, the federal government, since no impartial arbiter between them exists. When the federal government exercises a particularly dangerous power not delegated to it, the states must refuse to allow its enforcement within their borders.

I can hear people saying that such a response doesn’t go nearly far enough. No argument there. The trouble with nullification is not that it is too “extreme,” as the enforcers of opinion would say, but that it is too timid. But it gets people thinking in terms of resistance, which has to be a good thing, and it defies the unexamined premise of the entire political spectrum, according to which society must be organized with a single, irresistible power center issuing infallible commands from the top.

That’s at least a pretty good start.

The course, Nullification: A Jeffersonian Bulwark Against Tyranny, will cover the basics, to be sure, and after the first week everyone will be well-grounded in the relevant issues. But then I want to dig into the primary sources. I want to examine the long-forgotten debates on this subject in detail. In particular, we’ll study the exchanges between Daniel Webster and Robert Hayne, Andrew Jackson and Littleton Waller Tazewell, and Joseph Story and Abel Upshur.

Hardly anyone, including graduate students in American history, has actually read these texts as opposed to just knowing of their existence — and if my own experience at Columbia University is any indication, even that is more than some grad students know.

The various commissars who have taken it upon themselves to ensure that no one strays from officially approved opinion — or to appropriately scold anyone who in fact does so — have become apoplectic at the return of nullification. I confess to taking mischievous delight in this. They are accustomed to setting the terms of debate. They are not used to seeing people promote ideas of their own.

And the commissars have not read these sources, either. But you will. You will know the arguments of both sides inside and out.

You will also enjoy the discussions that ensue at the end of each lecture. You can sign off whenever you like, of course, but during the course I just completed on the New Deal I stayed around for an hour and a half to two extra hours answering questions and directing discussion, and then shooting the breeze about anything people wanted to discuss. We had a great time. As always, the lectures are available for viewing, along with a full transcript of the chat box, for people who cannot watch them live.

I understand the impatience that many of us feel regarding nullification, particularly the complaints that

1. the Constitution per se isn’t what matters anyway; what matters is freedom; and
2. the states are no angels, either.

These criticisms are by no means misplaced. But nullification remains a useful quiver in the liberty arsenal all the same. As I’ve said, it gets people thinking in healthy ways. And it can be employed for good purposes, as when the Principles of ’98 (as the ideas culminating in nullification came to be known) were cited on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and fugitive-slave laws. In our own day, Janet Napolitano said the reason the Real ID Act failed was that the states refused to cooperate in its enforcement.

And the states are indeed rotten, too — which is why we may as well put them to some good use by pursuing nullification. Liberty is more likely to have room to flourish in a world of many competing jurisdictions rather than under a single, irresistible jurisdiction.

In short, this course will introduce you to a chapter of American history that has fallen down the memory hole but which is much too interesting and valuable to leave down there. In the process of pulling it out, you’ll acquire a much deeper understanding of American history.

I hope you’ll join me.

Here is the Mises Institute’s Jeffrey Tucker interviewing me on the subject:

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of ten books, including the just-released Nullification: How to Resist Federal Tyranny in the 21st Century, and the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse, and The Politically Incorrect Guide to American History. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.

“Woe to you Scribes and Pharisees—hypocrites!”
–Jesus, Matthew 23:29

Akhil Reed Amar, professor of Constitutional Law at Yale University, and recognized “authority” on the Constitution among his peers, is author of the book America’s Constitution. However this is one book that you definitely can’t judge by its cover; for it does not describe the United States Constitution as written according to the intentions of its original Framers and ratifiers, so much as according to the intentions of Amar himself – thus prompting me to re-name his book as “Amar, Akhil’s Constitution.”

While Amar does admit that the states were each sovereign nations unto themselves prior to ratifying the Constitution, he claims that ratification ended their sovereignty, “merging” them into one single nation– much as one would merge several corporations to form a single conglomerate. In his own words: “[T]he United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788.” (1)

We find Amar’s entire explanation of precisely how the Constitution expresss this intent, in the following passage:

In dramatic contrast to Article VII–whose unanimity rule that no state can bind another confirms the sovereignty of each state prior to 1787 –Article V does not permit a single state convention to modify the federal Constitution for itself. Moreover, it makes clear that a state may be bound by a federal constitutional amendment even if that state votes against the amendment in a properly convened state convention. And this rule is flatly inconsistent with the idea that states remain sovereign after joining the Constitution, even if they were sovereign before joining it. Thus, ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence. (2)

Here, Amar presumes that the states knowingly, willingly and voluntarily (and above all, permanently) surrendered themselves to a national Union, in which they could be individually “bound” to the Constitution by force — rather than simply by voluntary agreement, which he freely admits was the case under the 1781 Confederation. However, Amar gives absolutely no evidence to support this presumption. Certainly we find no expression of any state relinquishing its sovereignty– or authorizing coercive force against it— within the four corners of the Constitution itself, or any pertinent document written prior to it. Indeed, the term “nation” is never even once mentioned; rather, the United States is only referenced as “the Union.”

On the contrary, not only does the Constitution (or any other document) nowhere express this intent between the parties to it (i.e. the individual states), but in fact implies the opposite intent, naming many limitations on federal powers— all of which would be entirely subjective and meaningless, without a state’s sovereign power to enforce them against a federal majority. In short, a national Constitution, would be no Constitution.

Meanwhile numerous other documents emphatically express that the Constitution strictly describes a voluntary union, rather than a mandatory (i.e. national) one. Primary among these was The Law of Nations, in which Vattel explains that several nations can unite while still remaining sovereign:

Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill engagements which he has voluntarily contracted. (3)

Here we see, that as with the Articles of Confederation before it, a Constitutional republic does not require any state to surrender its sovereignty to form “one nation.” Rather, here we see additional precedent that the Constitution could easily provide the federal government with additional powers to those delegated by the Articles of Confederation, while still remaining 100% voluntary—as opposed relinquishing sovereignty of the individual states; this would indeed be extreme indeed, defeating the entire purpose of achieving it in the first place.

Additionally, each state, in being founded upon democratic principles, was popularly sovereign: i.e. its People (i.e. its popular majority of voters) was its ruling power – not its government, or any other elite body (as was the case with many other nations). Therefore, no state could have properly relinquished its sovereignty, without the express permission of its People. This point is key, since the people of the states never authorized the Constitution, at all – and thus they could not have authorized the relinquishment of their respective sovereignty.

On the contrary, the Philadelphia Convention was only authorized by the People of each state, in order to modify the then-current Articles of Confederation – not to replace them with an entirely new document, or form a new union: however, the Constitution did both. Therefore, even if the Framers of the Constitution had intended for the Constitution to relinquish the sovereignties of the several states, and converge them into one sovereign nation (which they didn’t, as we’ll see below), then this would have been wholly null and void, by the simple lack of express intent by the ruling sovereigns themselves: the Peoples of the respective states. For sovereign nations, by definition, do not lose their sovereignty by act of omission, i.e. simply by failing to expressly retain it in their political dealings with other nations; rather, relinquishing national sovereignty requires a clear and express statement that explicitly states both the relinquishment and the details thereof. This is exemplified by the Paris Peace Treaty of 1783, whereby Great Britain expressly relinquished its claim to its former colonies:

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof. [Emphasis added]

Without such a requirement, any nation could legally conquer a weaker one under the claim of “national authority–” and then legally validate the claim, via the catch-all that any pesky legal details were “settled on the battlefield.” (Strangely, this exact same claim was not tolerated for Saddam Hussein when he conquered the sovereign nation of Kuwait; but it continues to work just fine for Abraham Lincoln in conquering the sovereign nations of the individual American states).

In addition to the Constitution itself lacking any express intent to relinquish sovereignty, such intent is expressly denied in the various other documents written both before and after the Constitution was ratified by the states. These will be examined separately in pre-ratification and post-ratification documents, though neither treatment is exhaustive.

Pre-ratification Documents: Federalist

State sovereignty is expressly retained under the Constitution, according to several of the Federalist papers; these were the various companion-documents to the Constitution, which expressed its intended meaning to the sovereign Peoples of the individual states. This therefore expressed the intentions between these Peoples, as the original terms of the constitutional agreement.

Federalist No. 39 is the most direct and detailed assurance of this to the people of each state, holding that that “the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious:”

But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is 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 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 to result neither from the decision of a majority of the people of the Union, nor from that of 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 a 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, if established, be a federal, and not a national constitution.

Here, we see that the will of the majority of the whole people of the United States would not bind the minority, in the same manner that the majority in each state binds the minority within it; nor would the will of the majority of the states bind the minority of states. Rather, the states under the Constitution would continue to form so many independent States– not one aggregate nation.

This– in dire contrast to Amar’s validation of popular myths– was the context in which the Peoples of each individual state ratified the Constitution: i.e. under the expressed intention that each state would retain its respective national sovereignty, and remain individually and popularly sovereign thereafter.

While Madison does express in Federalist No. 39, that the Constitution was indeed “partly federal and partly national,” this was prefaced by the above—and afterward specified in the context that “in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.” However if the Constitution had indeed surrendered the national sovereignty of the individual states, then it would be “wholly national,” in every sense other than name– thus making the federal government the final judge of its own powers; and hence this “federal” nature and limitations would be thus wholly subject to the whims of the federal policy-makers (as they are today).

Likewise explicit is Federalist No. 33, in which Alexander Hamilton undermines any national context via the so-called “Supremacy Clause” in Article VI of the Constitution, which many nationalists claim as “absolute proof” of such:

…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. 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.

In other words, the People of each state retained the sovereign power to refuse to obey federal laws; for sovereign rule, by definition, is always absolute. Therefore, conversely, if the federal government (or People) was the sovereign, then it could not technically “usurp” powers, but would again simply be the sole and final judge of its own powers.

In conclusion, we see that the People of each state ratified the Constitution only with the express sovereign intention, that they would retain their sovereignty in the constitutional union, as before it. While, as mentioned in the Law of Nations, they may have delegated additional powers to the federal government to those allowed previously under the Articles of Confederation, there is no reason to believe that this would be any less voluntary among the individual states; again as stated in Law of Nations, such joint deliberations would not impair the sovereignty of each member, but only put some voluntary restraint on the exercise of it as agreed (also as under the Articles of Confederation).

Post-ratification Documents

Shortly after the Constitution was ratified, Madison and Jefferson were particularly explicit in the 1799 Virginia Resolutions and 1798 Kentucky Resolutions, respectively, that the states had each retained their national sovereignty under the Constitution. While less persuasive, due to their timing, than pre-ratification documents, they do provide testimony of the Founders and Framers (specifically the key Framer, Madison) regarding the Constitution’s intended meaning.

In the latter document, Jefferson expressly states the following:

Resolved, That 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, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Once again, this literally defines each state as sovereign; for if the Union were in fact one sovereign nation, then the states indeed would have thus been “united on the principle of unlimited submission to their general government.”

Meanwhile in the Virginia Resolutions, Madison likewise expresses similar sentiments:

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 the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Madison continued even more explicitly, in his 1800 Report on the Virginia Resolutions:

It is indeed true that the term “states” …means the people composing those political societies, in their highest sovereign capacity….the Constitution was submitted to the “states” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result…. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity…. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition…. However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

Here Madison makes absolutely and unambiguously clear, that the sovereign will of the People of each state, wholly supersedes any power of the federal government—at least within that state’s territorial boundaries. Otherwise, once again the federal government could simply construe the Constitution as it pleased, and simply claim to respect its limitations– or in fact say anything at all; for without sovereign recourse, the individual states would be wholly powerless against the federal majority.

Unfortunately, this is the federal policy under which we now live; and which was instituted by the regime-change that occurred via the “Gettysburg Contest” as Amar terms it—but which is more popularly known as “the American Civil War,“ in which the federal officials deliberately killed 300,000 state-citizens who resisted its claims of national authority over them, brutalizing the individual states and their 8 million inhabitants (100 million in modern numbers) into submission, and suppressing the truth through censorship in order to re-write history.

Pundits like Amar simply serve as shills and lackeys to continue this suppression, by lending their professional credentials to support and validate the federal government’s version of truth and history– such as when he claims that “ratification of the Constitution itself marked the moment when previously sovereign states gave up their sovereignty and legal independence.” As we see above, this is utterly false: since the states never gave up their sovereignty (and in fact expressly retained it); however Amar’s claims lend credence to those of the current regime, through his cloak of neutrality—as well as his credentials, and related betrayal of professional ethics and public trust.

In order to repair the damage done to the Union—and restore liberty– we must first correct the breaches in the truth; and Amar’s claim is the key falsehood in Constitutional law and history, which must be corrected before the remainder of the Constitution can be recognized and enforced.

In short, the individual states are sovereign nations, by law; meanwhile the United States has no sovereign power of its own.

Brian McCandliss is a business and economics graduate of Liberty University in Lynchburg, VA, a law student, and a businessman in Detroit, Michigan.

References

1. Amar, Akhil Reed. America’s Constitution, pp. 38-39.
2. The David C. Baur Lecture: “Abraham Lincoln And The American Union,” by Akhil Reed Amar
3. Vattel, Emerich. The Law of Nations, Book I,§10. “Of states forming a federal republic.”

In response to what some opponents see as a Congress that doesn’t represent their interests, State Legislators are looking to the nearly forgotten American political tradition of nullification as a way to reject any potential national health care program that may be coming from Washington.

In 2010, residents of Arizona will be voting on a State Constitutional Amendment that would let them effectively opt out of any proposed national health care plan.  Legislatures in Florida, Michigan, Ohio and Pennsylvania are also considering similar State Constitutional Amendments.

And now, Missouri is joining them. According to a report in The Missourian, “Rep. Cynthia Davis, R-O’Fallon, pre-filed a bill Dec. 1 that, if approved by voters, would effectively put a halt on any national health care legislation. Davis said her intent was to give voters a way to protect themselves.”

FREEDOM TO PARTICIPATE

The bill, HJR48, “Proposes a constitutional amendment which would prohibit compelling a person to participate in any health care system.”

It states:

“To preserve the freedom of citizens of this state to provide for their health care, no law or rule shall compel, directly or indirectly or through penalties or fines, any person, employer, or health care provider to participate in any health care system. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services. Subject to reasonable and necessary rules that do not substantially limit a person’s options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule.”

NULLIFICATION: A HISTORY LESSON

The principle behind such legislation is nullification, which has a long history in the American tradition. 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.

Early nullification movements began with the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that the people of the 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.

Nullification was regularly called upon by states all over the country in response to everything from higher taxes to the fugitive slave law of 1850.

A MODERN NULLIFICATION MOVEMENT

Besides the Health Care legislation in Arizona, activists and state-legislators are pushing forward with nullification efforts all across the country – and it spans the political spectrum.

Thirteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances. Massive state nullification of the 2005 Real ID Act has rendered the law nearly void. And, two states, Montana and Tennessee, have already passed laws nullifying federal gun laws and regulations within their states.

HOWEVER WE CHOOSE

“We (Missourians) don’t like it when people try to take away our freedom,” Davis told The Missoulian. “We will maintain the right to purchase health care however we chose. This national health care debate is not about health care as much as it is about redistribution of the wealth. This resolution allows voters to say don’t redistribute our wealth here in Missouri.”

George Senate Majority Leader Chip Rogers, in an interview with the Atlanta Business Chronicle said, “Proposals to deny or limit access to the purchase of private health care are simply unacceptable. Our basic freedoms are at risk with the government-run health care proposals coming out of Washington.” Legislators from Georgia recently announced that they would be introducing a similar resolution in 2010.

REAL ID AS THE BLUEPRINT?

Supporters of modern nullification efforts look to the successful rebellion by states against the Bush-era Real ID Act.

In early 2007, Maine and then Utah passed resolutions refusing to implement the federal Real ID act on grounds that the law was unconstitutional. Well-over a dozen other states followed suit in passing legislation opposing Real ID.

Instead of attempting to force the law to implementation, the federal government delayed implementation not once, but twice. And in June of this year, the Obama administration, recognizing the insurmountable task of enforcing a law in the face of such broad resistance, announced that it was looking to “repeal and replace” the controversial law.

Supporters see this as a blueprint to resist various federal laws that they see as outside the scope of the Constitution. Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Michael Boldin is the founder of the Tenth Amendment Center

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Americans have been dipping into the history of the Founding Era for clues as to how to get our country out of its current mess.

Here’s an instructive story:

In 1783, the Constitution had not yet been written, and Congress was operating under the Articles of Confederation. Congress had no ability to enforce its laws, no power to tax, and could not even meet its obligations to the newly-victorious Continental Army.

Debts kept mounting up. In one humiliating incident, Congress felt compelled to flee from Philadelphia when armed troops demanding their back pay physically surrounded the congressional meeting-place at Independence Hall.

Congress re-convened in Princeton, New Jersey. Once there, the delegates started to talk about how it would be a great idea to have a national capital in a district of its own. But Congress couldn’t agree on where the capital district would be located.

Votes were taken on locations in each of the thirteen states, and they were all voted down. More importantly, Congress was completely broke — it simply had no money to build a capital.

Faced with a crisis, some of the delegates had an idea. If the idea of having one national capital wasn’t feasible, then they would propose building TWO national capitals – one on the Delaware River, and one on the Potomac. And that’s just what Congress voted to do!

The lesson for today: The biggest domestic national crisis, almost every impartial observer agrees, consists of the massive and unfunded entitlement programs sweeping the federal government toward default and bankruptcy.

The second biggest problem is health care costs — rising crazily because the government has replaced the traditional doctor-patient relationship with huge bureaucracies of “third party payers” ( government agencies and insurance companies).

The obvious cure for both problems is to find ways to disengage government and return these services to the free market. But both of those solutions are off the congressional agenda. Instead, a majority in Congress wants expansion of entitlements and third-party payments.

Politicians haven’t changed much.

What finally cured the problems of the 1780s was a new Constitution that restructured Congress and clearly defined its powers. It’s becoming more and more clear that it is also going to take some fundamental change to deal with modern congressional irresponsibility — probably a constitutional amendment or two.

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

During the Constitutional Convention, from May to September 1787, delegates from the colonies were to gather together for the express purpose of amending the Articles of Confederation to form a “more perfect union” (NOT a completely different union!). The men that met in Philadelphia, Pennsylvania, were under direct and limited orders from their states to attend the Federal Convention explicitly to preserve the federation and State rights and to correct the errors of the existing federal government for the limited purposes of handling foreign affairs, commerce among the states and common defense.

Yet, during that private and secret convention, there were men who proposed that a national system be established in place of their current federal system, destroying State sovereignty in direct contradiction to their orders. (Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, vol. 1, 2nd ed., [Philadelphia, PA, JB Lippincott, 1891], 121) Of course, the public was not aware of this fact until years after the ratification of the Constitution, when the notes taken in the convention were printed and released to the public.

Indeed, those who proposed such a national system of government (e.g., Alexander Hamilton, John Dickinson and James Madison) would not have the people of the states aware of this proposal for fear of outright rejection of the Constitution and for fear that they would remove their delegates from the convention altogether, giving no chance of success for the ratification of a new Constitution. It was hush-hush for good reason. In fact, Alexander Hamilton was so tactful on the subject that he did not even present his nationalistic notions as a constitutional proposal, but only as his ideas of what America should be. (Ibid., 123) Despite these proposals, in the end, it was a federalist system that prevailed–a union of states and not a union of people, whereby the states retained complete and absolute sovereignty over all matters not delegated to the federal government. The states were indeed co-equal with the federal government. So, what was it about the national system that was rejected during the convention?

The most notable proposal reveals the underlying foundation for all national principles: that is, the national government possesses superior sovereignty to force the states to submit to the laws made by the national government and to negate any State law it deems repugnant to the articles of union. This supreme power was proposed (but rejected) as follows during the Federal Convention: the to-be national government should possess the power to “negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union.” (Ibid., 207) Hamilton, and his like, would have loved it had this national principle of supreme sovereignty been accepted by the delegates. Thankfully, it was not accepted. In fact, as the convention progressed, what became apparent to those who advocated for this national form of government is that their ideas would never be accepted and ratified.

History proves with absolute certainty that a national government and its assuming principles were rejected, not only by the framers of the US Constitution, but also by those who sent delegates to the Federal Convention and who ratified the US Constitution at their State conventions. More important than the limited powers of the federal government, the people of the states rejected the nationalist doctrine that the federal government had the power to negate State laws that it deemed contrary to the Constitution. (John Taylor, New Views of the Constitution of the United States, [Washington DC, 1823], 15).

So, how is it that while the people of the states expressly forbade the federal government from interfering with the internal affairs of the states the federal government can now control nearly every facet of life within the states and the states supposedly can do absolutely nothing about it? Most attorneys who think they know so much about America’s history and the US Constitution would say, “The United States Supreme Court is given the power to say what the Constitution means and that over the years, they have interpreted Congress’ power to reach the internal affairs of a State.” It is the “living Constitution” idea, simultaneously coupled with nationalistic doctrine, which proclaims that the actual meaning of the Constitution can change over time, and that such change is constitutional and does not deny the people their freedom protected under the compact of the Constitution.

Interestingly, the “living Constitution” idea is only used when it promotes a constitutional “construction” that expands and empowers the federal government and neuters the State governments. The “living Constitution” idea (advanced by the British Parliament) in fact is the very notion that caused America’s War for Independence. (Claude Halstead Van Tyne, The Causes of the War of Independence, Volume 1, [Boston, MA: Houghton Mifflin Company, 1922], 235, 237)

The ludicrous proposition of a “living Constitution” begs numerous critical questions involving the very foundation of a free society, not the least of which is this: If the meaning of the Constitution can change over time, why did the Constitution’s framers spend nearly five months debating which words should be placed in the Constitution? More than that, why would the framers be so emotionally, mentally, intellectually and intensely involved in the question of what form of government we will have: national or federal?

How can it be that the judiciary branch of the federal government, which is not even politically responsible to the people or the states whatsoever (and only ever so slightly to the other federal branches), has the sole and complete power to say that the states have no power to interpret and comport to the US Constitution as they deem constitutional, when that same power was expressly rejected to the national government during the convention? After all, Hamilton and Madison both admit throughout the federalist papers that the states have complete and absolute sovereignty regarding the powers retained by them and granted to them by the people of each State, just as any foreign nation would. Both Hamilton and Madison admit that the only check on power is another independent power and thus, the only real power that could check federal power was State power. They even expected that the states would use their sovereign and independent power to the point of being the voice and, if necessary, the “ARM” of the people to implement a common defense against the federal government.

Both Hamilton and Madison admit that the federal government can never force the states out of existence and can never strip them of their rights and powers possessed prior to the ratification of the US Constitution, except as delegated to the federal government. They even refer to the states’ right of self-defense in this regard to resist federal tyranny. Was this mere “bait and switch” rhetoric to get the people of the states to ratify what they thought was a pure federal system? How can the states possess the absolute sovereign power to check federal tyranny when they are bound to submit to the federal government’s interpretation of the Constitution? The two positions are necessarily incompatible with each other. To say that you have power, so long as I say you have power is to deny your power altogether.

Quite obviously, in no place does the Constitution grant to the federal government (in any branch) superior sovereignty over the states. Instead, the Constitution requires ALL parties to it (State and federal) to comply with the Constitution, as it is the supreme law of the land. All the framers agreed that federal government and federal law do not equal the “supreme law of the land.” Both the federal government and the federal laws are bound by the terms to which all must comply. Thus, all parties must be watching each other to ensure each is complying with the compact. And as was admitted by even the most ardent nationalist (i.e., Daniel Webster) of America’s earlier history, each party to a COMPACT has the sole right to determine whether the other party has complied with the compact.

But over the years, a political idea contrary to our original federal system was adopted–not through open discussion and consent, but by fraud and force. This position states that whatever the federal judiciary rules equates to the “supreme law of the land” and the states must comply therewith, regardless of whether the federal law usurps the power the states retained under the Constitution. What the nationalists were unable to obtain through honest and open debate during the conventions they have obtained through the erroneously construed “supremacy” clause of the Constitution.

What the federal government was denied through constitutional debate and ratification the nationalists have procured through masquerade, subterfuge and trickery. America has been duped into accepting a national government, not by interpolation, but by deceptive “construction.” If the federal government has the power to usurp its powers without a countermanding power checking its encroachments, where is the genius in our framers’ form of government?

Was this form of government the form that best secured our happiness and freedom? And if our framers in fact bequeathed to us a federal system, whereby the states were co-equal with the federal government in sovereignty and power regarding their powers, then where comes the notion that we now have a national system, whereby the states are mere corporate branches of the federal government? Where were the constitutional debates on that subject? Where was the surrendering of sovereignty by the states, which can only be done through expressed and voluntary consent? Where was the right of the people to establish the form of government most likely to effect their safety and happiness? Do we just accept the fact that our form of government can change over time without express and legal action being taken to effect that change? God forbid!

In 1776, the colonies rejected the European (nationalist) form of government. In the UNITED STATES, the people of the states ardently believed that their freedoms would be best protected if each of their agents (State and federal) possessed equal power to check the other against encroachments of power and freedom. This was the “more perfect union” of the US Constitution. How could the founders have suggested that the US Constitution was a “more perfect union” as a nationalist system, when the nationalist system was the very system they seceded from and rejected? That is nonsense!

Ironically, the very document that was designed to perpetuate these principles of federalism has in fact been de-constructed to destroy those same principles, leaving us with the very form of government that our framers and the Constitution’s ratifiers rejected. In the end, if the people of the states do not once again reject this national form of government and assert and defend the principles of federalism–the principles upon which America was founded–then this supposed federal power of constitutional “construction” will in fact be our freedom’s destruction.

Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of America’s foremost defenders of State sovereignty. See his blog.

Thomas Woods in the third in a series of ten lectures, presented at “The Truth About American History: An Austro-Jeffersonian Perspective” seminar, hosted by the Mises Institute. Recorded 06/21/2005.

Part 1.  Part 2.

Tom Woods appeared as a guest on Antiwar Radio to discuss his article, The States’ Rights Tradition Nobody Knows, which was recently featured here at TenthAmendmentCenter.com.

He discusses the debt some progressive causes owe to states’ rights, the Kentucky and Virginia Resolutions, state nullification of unconstitutional federal laws, the undue respect given to the Supremacy Clause, and more.

Thomas E. Woods is the New York Times bestselling author of nine books, including Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse.  A senior fellow at the Ludwig von Mises Institute, Woods holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University.

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.

According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term €œexpressly€ suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.

As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert €œexpressly€ into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is also almost certainly wrong.

James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.

Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase €œor to the people€ to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of €œexpressly delegated powers€ meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power – the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

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Kurt T. Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.  Since joining the Loyola Law School faculty in 1993, Professor Lash has published numerous articles on constitutional law, theory and history.  His work appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Northwestern Law Review, and Texas Law Review.  Most recently, Oxford University Press has published Professor Lash€™s book, The Lost History of the Ninth Amendment.  In 2007, Professor Lash served as Chair of the Association of American Law Schools Section on Constitutional Law.

Copyright, Kurt T. Lash, Notre Dame Law Review

As we prepare to celebrate the 233rd anniversary of the signing of the Declaration of Independence we should recall why the American colonists made their decision to break away from the British Empire. The Declaration, in the enumerated grievances against the British Crown, makes it crystal clear that the cause was Big Government.

I explain this in a new piece of mine, “A Declaration of Independence from Big Government.”

It was a Big Government that violated the colonists’ personal and civil liberties, and denied them economic freedom through the stranglehold of a spider’s web of commercial regulations, controls, and restrictions.

In addition, the hard working people of those thirteen colonies along the eastern seaboard of North America were burdened with numerous taxes that consumed significant portions of their wealth, and were imposed without their consent.

Everywhere, the king appointed various “czars” who were to control and command much of the people’s daily affairs of earning a living. Layer after layer of new bureaucracies were imposed over every facet of life.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance,” the Founding Fathers explain.

In place of this oppressive system, the Founding Fathers declared the principles of a free people: every individual’s right to his life, liberty and the pursuit of his own happiness. The ground was laid for the noble experiment of a society of free men associating on the basis of voluntary consent and mutually beneficial exchange.

Unfortunately, in our own time we have returned to a system of government controls and fiscal burdens that are far more oppressive than the ones our Founding Fathers revolted against.

Those freedom-loving colonists rose up against a government that taxed a fraction of what the U.S. government plunders the American taxpayer, nowadays.

And the intrusive hand of government in our personal, social and economic affairs is far more pervasive today than anything those American colonists faced 233 years ago when the Declaration of Independence was signed.

This 4th of July, each of us should try to remind our fellow Americans about why the Founding Fathers led a revolution against the British government, and why the danger of Big Government is far greater in 2009 than anything they faced in 1776.