by Derek Sheriff

Earlier this year, I wrote an article titled, A Bright Idea: Less Litigation and More Interposition. The main point of my article was to persuade people that lawsuits and battles in federal court were an ineffective and wasteful substitute for interposition or nullification in the battle against federal usurpation.

However, after the third week of  Tom Woods‘ course on nullification at The Mises Academy, I now understand that interposition was probably just used by James Madison as shorthand for a broad spectrum of measures which could be employed by state governments, all intended to protect their citizens from unconstitutional acts that violated their rights. State interposition, in other words, might include any number of constitutional measures on the part of a state government designed to arrest the evil of usurpation. It turns out then, that court challenges are in fact a more moderate form of state interposition. But as Jefferson seemed to indicate in his draft of the Kentucky Resolutions of 1798, “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers and other forms of interposition fail. Nullification may simply be one of the boldest and most direct forms of interposition. It stops short of secession, but aims to put power back into the hands of the states, and ultimately the citizens of the states where it rightfully rests.

If I had a time machine, I guess I would rename my article A Bright Idea: Less Litigation and More Nullification, since Arizona’s governor, Jan Brewer, does in fact seem to support state interposition, but does not yet seem to embrace nullification.

But regardless of what their respective governors choose to do or not do, the people in every state need to make up their own minds. I would argue that whatever the outcome of this or that federal court battle, they shouldn’t in any way accept the decisions of federal judges, even the justices of the Supreme Court, as having any legitimacy whatsoever in cases where those decisions are obviously nothing more than a fig leaf to provide political cover for acts of naked usurpation.

Civil Disobedience?

Some federal supremacists might say that I am calling for civil disobedience or that I’m guilty of spreading sedition. But I assure you that nothing could be further from the truth. Since I can’t say it better than David Justice, Colorado State Coordinator for We The People Congress, let me just quote him. In an op-ed from April of last year, he wrote:

“Bottom line? The American people have a duty not to consent to an unconstitutional act masquerading as law…the American people have a duty not to dignify a statute passed that is repugnant to the Constitution. Though failure to comply could be perceived as an act of civil disobedience by the ignorant, in truth, if the agent has transgressed the principal’s delegation of power, the principal has a duty to call the agent on it to avoid giving the appearance of consent..”

Civil disobedience is deliberate defiance, on moral grounds, of particular laws that are constitutional and legal, but may also be unjust. In contrast, non-violent non-cooperation with unconstitutional, and therefore illegal, commands and prohibitions is not civil disobedience. Rather it is the rightful exercise of powers reserved to the states or the people, guaranteed by the Bill of Rights. Not only do local and state officials have a duty to “call the agent on it” (an unconstitutional command or prohibition), in order to avoid giving the appearance of consent, but so do individual citizens, especially if our state officials fail to do so.  Hard as it might be for us to imagine today, there was actually a time in this country, when citizens of states like Wisconsin properly understood that in the last instance, the people themselves are the final arbiter of the Constitution.

As H. Robert Baker wrote in the first chapter of his wonderful book, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War:

“Deeply embedded in the American revolution was the concept that the people properly organized might act on their own. The idea of direct popular action became central to American government in the first decades of the nineteenth century.”

In the second chapter of his book, Baker seems to point out the flaws inherit in the false doctrine of Judicial Supremacy:

“A vocal portion of Wisconsin’s citizenry, in popular assembly, had declared the Fugitive Slave Act of 1850 to be unconstitutional. Their actions made the act virtually unenforceable — in practice a nullity. But was that law unconstitutional? The Constitution, after all, mandated the return of fugitive slaves across state lines..The law had come before both state and federal courts, and, more than once, lawyers had argued that its provisions were unconstitutional and void. Yet the US Supreme Court upheld the act in Prigg v. Pennsylvania. In the eyes of the law, then, the Fugitive Slave Act was constitutional, and the people of Wisconsin had adopted an extralegal attack on its execution. This conclusion, while satisfyingly simple, misleads. It assumes that the law’s constitutionality was determined in the last instance by the courts, and, necessarily, by the US Supreme Court. It also denigrates the role of popular resistance, suggesting that it carries no constitutional weight. The later assumption is easily dispensed with..Popular resistance was only the first stage, signalling the failure of the law to achieve the consent of the community. The next stage was to affect change through the political processes specified by the Constitution. This was part and parcel of antebellum constitutionalism. The assumption that the courts settled the question in favor of constitutionality was also flawed..The constitutionality of the Fugitive Slave Act was not based on timeless principles extracted from the nations founding document. Instead, its constitutionality was in the process that created it, sustained it for six decades, and, ultimately brought it crashing down under the weight of public opinion after 1854. In a very real way, its history was its constitutionality, and ultimately its unconstitutionality.”

Is Nullification Seditious?

So just as popular constitutional resistance, in the form of non-violent non-cooperation, shouldn’t be confused with civil disobedience, nullification must not be viewed as insubordination or sedition. I hesitate to quote Wikipedia, but I’m inclined to say that they hit the nail on the head with their definition of sedition:

“In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrectionagainst the established order. Sedition often includes subversion of a constitution and incitement of discontent (or resistance) to lawful authority.”

Read that over again two or three times. Isn’t our established order based on the Constitution? Doesn’t all legal authority in the United States come from constitutions, which emanate from the sacred sovereign — the people of the several states? If this definition of sedition is accurate, then nullification is actually the opposite of sedition and should be understood properly as an important safeguard against sedition, which necessarily involves the subversion of the Constitution.

On the other hand, Wikipedia’s description seems to describe fairly well many of the activities that take place every day in Washington, DC. So if the description of sedition quoted above matches the behavior of those who are pleased to call themselves our legitimate federal government, I wish they’d either just admit it or do something about it. Of course, there’s more of a chance that my dog will decide to go on a diet all by himself than there is that politicians in Washington will swear off usurpation and start governing according to the supreme law of the land. The Constitution will not be brought back from exile and the union won’t be saved by the people who make up our so called federal government. It’s up to We the People of the several states.

Derek Sheriff
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