Many contemporary Americans who initially encounter the concept of nullification, or state interposition pursuant to the 10th Amendment, find themselves intrigued, even tempted to embrace such an empowering prospect without delay. But delay they do, nonetheless. They are checked almost immediately by doubt, confusion, or skepticism – or all of the above. And those who have long studied constitutional history, and who are deeply familiar with nullification in particular, wonder at the hesitant reaction of our fellow Americans. Why, we ask, do others pause upon the cusp of liberty? Why do they withhold their embrace of a concept so pregnant with the promise of freedom? What is it that they do not fully understand, that stands at the root of this perplexing phenomenon?
Sometimes, but seldom, it is the simple fact that they may not understand that they are largely living without freedom in the first place. It’s a sad, but true fact that too many Americans today aren’t even aware of the chains that bind them. If this is the case, it is easy to understand why they reject the assertion that the federal government is not the supreme authority in every case whatsoever; why they refuse to see that there is even anything to be upset about! Something as potentially disruptive as the prospect of nullification to their accustomed routine and comforting way of life, however oppressed or subservient it may be, is not likely to attract their praise or adoration. There would be no reason for it to; they do not yet know they are living as subjects, rather than citizens.
But for those who do realize the true nature of our existential condition, and who likewise are fully aware of the fact that there is indubitably something deeply awry about this modern social and political structure that surrounds us, the cause of hesitation cannot be for lack of knowing that we are not as free as we ought to be. It seems, instead, that while they realize the existence of the chains, what they lack is the insight, both historical and philosophical, to justify to themselves the rationale for breaking those chains with nullification. This sounds absurd, but the truth is, we are civilized creatures, and disposed, as someone once said, to abiding the greatest degree of tyranny and abuse that we can tolerate; we are not quick to revolt against our oppressors. Fair enough, from a certain perspective, but the fact is that we are well beyond the point at which we can justify continuing to live under the kind of despotism being perpetrated by our federal government any longer. Revolt, at this point, is more than justified. We have only to understand why we should undertake that course, and it will become clear that nullification is chief among the proper “how’s” at our disposal.
Firstly, it is indisputable that the federal government has long overreached its constitutional bounds, and it has done so in the most drastic and extreme ways imaginable. This is axiomatic to our taking any action at all, but it is not sufficient to understanding why any particular remedy is the rightful one. For that, our understanding must reach deeper. And the most appropriate place to seek to deepen our understanding of a historical concept, is in the narrative of history itself.
The most common questions generally posed by serious yet skeptical initiates at this point are roughly thus:
“Nullification seems to violate the very order we claim to seek to preserve: the constitutional rule of law. How can we justify granting the states so much power as to declare federal laws unconstitutional? Is that not the inversion of the proper hierarchy, and a perfect formula for injustice gone wild? The Constitution itself lodges responsibility for those judgments in the federal government, and particularly in the Supreme Court, does it not?”
And this would be the common understanding: that the federal Judiciary is designated by the federal Constitution as the sole and final arbiter of federal power and authority. But is this actually the case? Or is it a clear misunderstanding, despite being a common one?
Indeed, it is a misconception. And I hope, in what follows, to elucidate exactly why and how it is so.
In order to begin to comprehend this fact, it is necessary to understand what is meant when we say that the Constitution was a compact, or contractual agreement between the several states, to establish on their collective behalf an ‘agent’ of sorts: a limited federal republic. This simple, short sentence is deceptively packed full of meaning, as will be elaborated presently. But we ought to take the analysis in a logical order, and we have begun already with the question of in whom, or in what institutions, the Constitution lodges the power to undertake constitutional interpretation.
Arbitration of constitutional guidelines is a form of legal analysis of what government can or cannot do. But the analysis of what can or cannot be done by “government” in America is not monolithic and single-stranded; it is at least a two (if not three) part affair, and the key is understanding what “federalism” really means.
Federalism Is Fundamental
The history of federalism as a paradigm of political order is literally ancient, stretching all the way back to the Greek alliances among City-States, and arguably even further. It reached a new level of sophistication in the 1400s and onward, as the European powers of the late Middle Ages and Early Renaissance began to employ it to stabilize the volatile feudal order that had dominated Europe after the fall of Rome.
Federalism developed out of the need to find a way to survive without being either subsumed under the imperial regime of a powerful enemy or, alternatively, destroyed by the violent chaos of perpetually-warring nation-states of roughly equal strength. Many smaller or weaker Principalities and Kingdoms, desiring to maintain their sovereignty and autonomy while yet avoiding senseless, destructive and costly wars between themselves (or conquest by and subjugation to larger, more powerful neighbors) banded together in “foederal” alliances, formalized by contractual charters and compacts, to secure peace and diplomatic deference among themselves and to strengthen their collective resistance to external threats. These had a mixed history of success, and in their details took on many different forms, but all were essentially the same in concept, and over time their chief result was a dual political doctrine that emerged from that era under the moniker of the “ Balance of Power ” and “the Law of Nations .”
This entire philosophy carried over into our own founding, and was key to understanding the original intent of the framers of the Constitution.
“At the root of the federal principle, as then conceived, was the idea of a covenant or ‘foedus’ (its etymological root). This and ‘synonymous ideas of promise, commitment, vowing… ones word’… were joined together with two other things: ‘the idea of cooperation, reciprocity, mutuality,’ and ‘the need for some measure of predictability, expectation, constancy, and reliability in human relations.'”
[Excerpted from “ Peace Pact ,” by David C. Hendrickson].
Specifically, in our own case, this principle took the form of a limited federal government, rather than a national or centralized government, and the heretofore free and sovereign states (nations by their own declaration in 1776, and by right of victory in the Revolutionary War), expected under this Charter to maintain the preponderance of their sovereignty as free and independent political bodies.
One appropriate term to describe this relationship between the states and the federal government they were forming is as one of “ divided sovereignty ,” wherein the rule of law governs all aspects of political life, with the Constitution as the Supreme law, and the delegation of authorities, responsibilities, powers and jurisdictions set forth therein, divided among the federal, state, & local levels of government, all ultimately deriving its justification and legitimacy from the prime sovereignty of free and consenting individuals.
“The federal government created by the Constitution, however, fell short of a ‘full-fledged state,’ or what was called at the time a ‘consolidated’ government. Unlike the state governments, which generally claimed a plenary authority over the lives and liberties of their citizens, the federal government was one of enumerated and limited powers. Supremacy was accorded neither to the federal government nor to the state governments but to the Constitution itself…”
[ ibid ].
In our instance, the motives were much the same as in the instance of the federal republics of the late-Middle Ages. The framers – “Unionists,” as they may be appropriately called – sought a middle course between ‘Scylla and Charybdis’: anarchy and inter-state or inter-sectional strife on the one hand, and on the other, the perils of Empire and consolidated national government. Both, they argued, were very real dangers, and to be avoided if at all possible.
But it’s necessary to note, lastly, that the Constitution, as ratified and understood in its time, was not intended to govern the affairs of the states, except insofar as specific provisions of it refer explicitly to the states. In particular, the Bill of Rights was never intended to apply to the states, and any constitutional interpretation which has it doing so, is demonstrably mistaken. That was one of the fundamental features of the compact, a feature which was deliberately included in order to maintain state sovereignty in all areas where the Constitution did not delegate federal authority. This was a built-in property of the entire document, and the 10th amendment was simply a reiteration of that fundamental principle.
Rediscovering Original Conclusions
In evaluating the appropriate powers of government, one first has to take on the question, ‘Of what level of government are we speaking?’ If we’re speaking of the federal level, the answer is clearly right there in the Constitution, and no further analysis need be done. If, however, we are speaking of a state action, or a state power, it is not so simple. The states, having come to the federal Union as preexisting free and sovereign nation-states, and having reserved for themselves the legal authority to undertake anything not delegated to the federal government by the compact, have essentially no legal limits on their own powers or authorities, except those imposed explicitly by the Constitution, and those imposed by their own state constitutions. Hence, when asking what a state can or cannot do (or more to the point, what a state should or should not do), one cannot simply ask the “legal” question – “is it constitutional ?” – and then stop at that; rather, one has to ask the legal/constitutional question, obtain an affirmative that such power or act is within the scope of the state government in that respect, and then proceed to ask the ethical or practical question: “Does the act or power at issue fall within the legitimate and proper role of government at all? Is it something that any government should attempt to undertake?”
And, with all of that in mind, we can proceed to address the original question: Whether or not the states have the rightful authority to interpret the meaning and application of the Constitution. Of course, “states” don’t “interpret” anything – people do. And the people of the several states – many of them – are, today, largely ignorant of almost all of the points elucidated above. This isn’t the story you get taught in school, it’s not talked about in the media, and our governmental overlords sure won’t let you in on the truth… so how could the people judge, when they don’t even know that the responsibility of making such judgments is theirs? They don’t know, in other words, that they are the government – that there is no one else besides themselves to make those judgments, and that if they delegate that responsibility, the very act of delegating such powers to others is an admission that they possessed the powers in the first place! Americans don’t realize these truths because we don’t know our own history, and that’s just one reason why the dialectic of constitutional questions is so important to us today: the truth really can set you free (even if it does piss you off, first).
The fact is, that in order to see why “We, the People of the several States,” are perfectly in line with the Constitution when we undertake to judge of the constitutionality of the actions and decisions of any branch of the federal government, we need only to open our eyes first to the rationale that gave us our government in the first place. Once we imbibe a sobering dose of that tonic prescribed by our founding physicians, “a frequent recurrence to the fundamental principles of liberty,” it will be evident – dare we say even “self-evident?” – that if our government is truly grounded in republican principles, and is truly a government “of the people, by the people,” then there can be no alternative except to recognize our own responsibility in making such judgments. It is our sovereignty, as free individuals, which gives legitimacy to any power of our system of government, at any level, including the power to undertake constitutional arbitration and interpretation; such powers, then, are therefore ours in primacy, and are only lent to our representatives conditionally. They can, thus, be withdrawn, resumed, or re-delegated at any time by us, the sovereign authorities within this federal republic. In short, the question of whether we, the people, may undertake to judge of the limits and powers of our own federal government is obviously and unequivocally, “Yes!”
Some states have taken this old principle to heart, and given new attention to the powers conferred on them (or rather reserved by themselves) in pursuance of the 10th amendment. And some have taken actions based on that renewed understanding – some stronger and more bold than others. But the more the information is absorbed and understood, and the more our historical narrative is corrected and internalized by ordinary Americans, the more potent we will become in our efforts to restore the constitutional republic and achieve a just and free society again. It really does all come down to what we are willing to put up with, and what we are determined to achieve; as Thomas Paine said, “We have it in our power to begin the world over again”… a sentiment that was echoed when the Eagles told us, “All too often times it happens, that we live our lives in chains, and we never even know we hold the key.”
All too often, indeed.
- Understanding Nullification: An Historical Perspective - October 2, 2012
- Federalism Is Fundamental - June 10, 2012