“Vote the bums out!” is the dominant political strategy in the United States. If you don’t like what’s going on, wait two years, or maybe four, and kick the offensive politicians out of office. Right?
Well, the problem with this strategy is even in situations where the incumbents get removed you almost always end up with new bums.
And even in the few isolated cases where you don’t, unconstitutional federal overreach continues unabated. The largest government in the history of the planet keeps growing. The drug war rages on. The federal spies keep spying. Bombs keep falling on faraway lands. The government keeps borrowing, spending and devaluing your money. The gun-grabbers keep gun-grabbing.
At the end of the day, everything continues just as it was, and usually worse. Meanwhile, everybody gears up for the next election.
Wash. Rinse. Repeat.
Clearly, voting the bums out isn’t a good strategy when it comes to stopping unconstitutional federal power grabs and reducing the power of the monster state.
On top of that, it’s not even the right strategy in most situations today.
Thomas Jefferson told us this was the case in his draft of the Kentucky Resolutions of 1798.
“In cases of an abuse of the delegated powers the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy,” Jefferson wrote.
In other words, Jefferson meant “vote the bums out” was the right approach for dealing with bad policy or bad administration when government is still within the bounds of the Constitution.
But that’s almost never the situation we face today.
When the federal government goes beyond the limits of the Constitution, Jefferson called for more aggressive measures.
“But where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” [emphasis added]
Jefferson didn’t give us step-by-step instructions on how to nullify. The Kentucky Resolutions, along with the Virginia Resolutions of 1798 penned by James Madison, provide the philosophical and constitutional justification for nullification, but they don’t give us a nullification blueprint. We’ll get to that in more detail later in this report.
Jefferson was far from alone in warning that the people and the states would have to be willing to take action to stop federal usurpation of power.
During the ratification debates, opponents of the Constitution warned that the general government could easily abuse its delegated powers, usurp state authority, and violate individual liberty. But numerous supporters of the Constitution argued that there was a check far superior to the division of powers between the various federal branches.
James Iredell, who later became one of the first Supreme Court justices, put it this way during the North Carolina Ratifying Convention:
“Abuse may happen in any government. The only resource against usurpation is the inherent right of the people to prevent its exercise. This is the case in all free governments in the world. The people will resist if the government usurp powers not delegated to it.” [Emphasis added]
Notice that Iredell didn’t consider resistance a mere good idea, or something to try after everything else. Instead, he considered it the only way to keep the federal government within the bounds of the Constitution.
Another North Carolinian, Archibald Maclaine argued that states should not only disregard unconstitutional acts; they should “punish” Congress if it overstepped its bounds.
“If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, ‘You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.’” [Emphasis added]
During the Massachusetts ratifying convention, Theophilus Parsons argued that there is a check on federal power “founded in the nature of the Union, superior to all the parchment checks that can be invented, — the 13 state legislatures.”
He said they have the means, as well as the inclination to successfully oppose federal usurpation.
“Under these circumstances, none but madmen would attempt a usurpation.”
Roger Sherman was the only person to sign the Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution.
In December 1787, Sherman argued that “all acts of the Congress not warranted by the constitution would be void” and such acts would be unenforceable contrary to the “sense of a majority of the States.”
He continued, noting that “when [the federal government] overleaps those bounds and interferes with the rights of the State governments, they will be powerful enough to check it.”
Just weeks later, writing as PUBLIUS in Federalist No. 46, James Madison made the same case, noting that “legislative devices” and a “refusal to cooperate with officers of the Union” when used by multiple states “would present obstructions which the federal government would hardly be willing to encounter.”
In other words, if the states refused to participate in the enforcement or implementation of a federal act, it would be virtually impossible for the general government to carry it out.
When you consider what these and other supporters of the Constitution said, it becomes clear the document was ratified on the promise that the people and the states could hold the federal government in check through the power of resistance and nullification.
EDITOR’S NOTE: This article is an excerpt of the 2023 annual State of the Nullification Movement Report. Get a copy here.
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