When it comes to nullification, Heritage Foundation writer Matt Spalding has John Kerry syndrome.

He was for it before he was against it.

Or against it while he was for it.

Or something.

In a May 3, article Spalding praises North Dakota for, “wisely cutting out all of that nullification nonsense,” from its nullification bill.

Then he scolds North Dakota for watering down the legislation.

“Such indecisive legislative language leaves the matter in the hands of others (e.g., the Supreme Court), an odd case of timidity given that North Dakota has previously joined twenty-six other states in challenging the constitutionality of Obamacare in federal court. Well, North Dakota, is it unconstitutional or not?”

Sounds like Spalding wants North Dakota to nullify the federal health care law, or in Thomas Jefferson’s words declare that “it is not law, but is altogether void, and of no force.” – in other words, unconstitutional.

Or something.

Later he calls nullification “unconstitutional and unlawful.”

So maybe not.

But Spalding issues a call for action.

“The objective is to change the objectionable law, stop its implementation and challenge it at every possible point.”

Sounds a lot like nullification.

Which he calls “nonsense.”

Confused yet?

Spalding argues from a nationalist perspective.  It’s OK for states to resist, but only through the federally approved and prescribed manner, namely working through the court system. He argues that states should take a strong stand and call an act unconstitutional, but they should not go so far as to declare it null and void.

Interestingly, the Virginia legislature discussed this point while debating the Virginia Resolution of 1798 and ultimately decided the words null and void weren’t necessary. To call an unconstitutional act void is redundant.

Following Spalding’s logic, if state protests and court challenges fail, the only remaining remedy lies in voting appropriate federal officials into office who will stack the Supreme Court in a manner guaranteeing the outcome he wants.

That’s worked well for those challenging the constitutionality of Roe v. Wade for the least 38 years.

If the Supremes ultimately rule the health care act constitutional, the states should presumably sit down, shut up and implement the plan, because the Court said so. Apparently nine robed individuals actually possess ultimate and final authority.

Or something.

Spalding lays out his nationalist Hamilton-Marshall-Lincoln view of the United States in the closing paragraphs of his piece.

“The American people”not the federal government or individual states”are the sovereign in our constitutional system.  Their sovereign opinions rule through elections expressing their will, at the state level and at the federal level and, if necessary, through the process of constitutional amendment.”

Spalding fundamentally gets it right. The people do stand as the ultimate sovereign. But he stops short and ignores the rest of the story – the entire constitutional ratifying process.

The people first delegated political authority to their particular sovereign states, long before they ever conceived of a United States. In the peace treaty drafted to end the American Revolution, England recognized thirteen sovereign “states,” in essence nations, and listed each one by name.

Later, through the authority already delegated to them by the sovereign people, the sovereign states created the federal system. The states preceded the union, and in fact, created it. A marriage doesn’t spawn a bride and groom. A bride and groom join together to form a marriage  – a union.

Each state had to ratify the Constitution before becoming part of the United States. In Spalding’s world, a vote of 60 percent of the people would have created the U.S. and bound every state to the Constitution.

But when the U.S. Congress first convened under the current Constitution, North Carolina and Rhode Island were not represented.


And if ratification was the act of one American people, as Spalding insists, Rhode Island wouldn’t have had to ratify to be part of the union. At that point, conventions representing 59/60ths of the American people had already ratified. Yet, Rhode Island wasn’t represented in Congress.


Because they had not yet ratified.

As James Madison states in the General Assembly Report of 1800, “The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.”

Thus, a very specific delegation of power exists. The people retain ultimate sovereignty. They delegated powers to state governments, creating independent and sovereign states. Those states came together and delegated specific powers to the general government, retaining all the rest. The Tenth Amendment explicitly states the proper balance of powers.

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.

When placed into the proper context, understanding grants of power and how they flow, nullification makes logical sense. As Thomas Jefferson penned in the Kentucky Resolutions of 1798:

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non deris) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.

But Spalding calls this nonsense.

Or something.

Mike Maharrey

The 10th Amendment

“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.”



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