by Jeff Matthews

A recurring debate always arises when critics argue with proponents over the language included in various state-level nullification resolutions and bills. They argue over whether certain provisions are lacking, improper, will not be effective, etc. I, too, criticize such language from time to time. It is natural to do so when we think in terms of the “rule of law.”

However, the “rule of law” is only a fiction for some invisible, greater authority upon which our conduct is claimed to be justified. Let me explain it by this question: Are federal usurpations legitimized if legislative nullification efforts are not successful? Clearly, the continued ability to engage in a wrong does not make it right. So, if our rights to redress for our grievances do not end with our state legislatures, where do they end? In what way are our remedies bounded?

The most limiting aspect of the movement to reclaim state, local and individual sovereignty is that so many proponents are looking to the “rule of law.” The right words – the right concepts in the right place – seem to dictate so many thoughts on the “proper” strategy. Looking back at America’s procurement of its independence from Britain, where did all of our words take us? Britain did not read our declarations, our pleas, and our demands and conclude, “Well, my dear boy, we do believe that makes perfect sense. You shall have your independence. Cheerio!”

Words mean nothing. Popular sentiment means everything. Do not worry about the “why,” the “how,” and such, when it comes to scriveners’ attempts to accomplish our ultimate objectives. These are just acts of scriveners.

The Constitution says nothing about nullification. Nullification is simply implied out of the fact that there must be some remedy somewhere when the federal government usurps its powers. Most certainly, the Constitution does not prescribe a procedure for nullification. Madison and Jefferson simply made up the procedure they attempted to implement.

Where does it say that in responding to federal usurpation, we may only resort to measures which confine us to not treading on the sovereignty of the federal government? The Constitution is written with an assumption that our respective governments will operate within their confines. It says nothing about the rules of the game when the compact has been breached. It should be clear that in this paradigm, it is a “no-man’s land” where anything can go.

More particularly to this last point is a concept within contract law. Contract law principles are useful to those who view the relationships created by the Constitution as contractual or as a compact. Suppose Paul Plaintiff enters into a contract with Don Defendant to mow Don’s lawn for fifty dollars. Paul shows up with his equipment and is ready to begin when Don says, “I am not going to pay you.” Must Paul still comply with the contract and mow Don’s lawn?

The contract is breached. Once breached, the aggrieved party is no longer required to perform under it. Thus, our efforts to reclaim state, local and individual sovereignty are not restricted in any way. The Constitution does not limit the means by which we may redress our grievances. Therefore, bear this in mind when evaluating legislative measures proposed by local representatives.

Sure, they might be improved in ways that make them better reflect the people’s sentiments, but these words are not what count. What counts is whatever it is that happens when enough people have had enough of the overreaching, corruption and incompetence which emanates from Washington.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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