by Diane Rufino

[ I have put together a powerpoint presentation that coincides with this paper. If anyone is interested in it to help educate on this topic, please let me know ]

It gives me great pleasure to write about Nullification and to entertain its usefulness. Nullification is a doctrine articulated by Thomas Jefferson and it just so happens that he is my favorite Founding Father.

Nullification is as much a Jeffersonian doctrine as the doctrine that says that all individuals are endowed the alienable rights of Life, Liberty, and the Pursuit of Happiness, and that governments, instituted among Men and deriving their just powers from the consent of the governed, are responsible, above all else, to protect those rights.

As I said, Thomas Jefferson is my favorite founding father. He, above all the others perhaps, researched all the possible government philosophies, ancient and modern, so that he could not only make the case for secession from Great Britain but also to pave the way for Madison and the others at the Constitutional Convention to draft a Constitution for a government scheme that in every design feature, provision, phrase, and word, sought to limit government to limited areas and to enlarge and protect individual liberty. His Summary View of the Rights of British America, his Declaration of Independence, his Virginia state constitution, his Statute for Religious Freedom, his Virginia Declaration of Rights, and his many letters to James Madison all provided ample principles upon which our freedoms lie.

President John F. Kennedy hosted a dinner party in 1962 honoring Nobel Prize winners during which he commented: “I think this is the most extraordinary collection of talent and human knowledge that has ever been gathered at the White House, with the possible exception of when Thomas Jefferson dined alone.”

Many people over the years have tried to explain what they think the US Constitution means, including President Obama. And those interpretations have usually sided with the government’s belief that it can do whatever it wants. And that’s why we’re in the constitutional crisis that we are today. Unfortunately, because of a lack of proper education and a willful determination not to read the writings of our Founders, we have representatives in all ranks of state government who support the government’s position. We have state officials who believe they have no responsibility to second-guess the federal government or police its actions. They don’t believe states have any obligation or power to stand up to the federal government. Maybe they believe the issue of States’s rights died on the battlefields of the Civil War. But Jefferson has told us differently. His remedy to keep the government in check has been part of our history since 1798.

President Obama and such departments like the US Department of Justice like to bully the states and send the message that they dare not go against the federal government. But when Thomas Jefferson declares that the power to limit the size and scope of government rightfully belongs to the states, you don’t need to get a second opinion. You don’t get any higher authority than that on the intent and meaning of the Constitution or founding government principles.

And so, this states’ remedy of Nullification, because it is articulated by Thomas Jefferson and supported so solidly by founding principles, must be a meaningful way to address the many constitutional violations committed by the federal government – all three branches.

To Nullify —

“To Nullify” means:

— to make legally null and void; to invalidate. (Webster’s dictionary)

— to render inoperative, as if to nullify a contract. (dictionary.com)

Nullification is a States’ Rights doctrine that applies to the laws and actions of the federal government. So from thid definition, we can see that Nullification has something to do with invalidating federal law. We can also see that if a violation of the Constitution is egregious enough, it can invalidate the agreement among states that holds our Union together… That would be the extreme case.

Why is this Concept important?

— Our Founders labored and debated extensively over how to establish a nation governed by a limited federal government, and they did so, by drafting a constitution creating a government of limited and defined powers, establishing a system of dual sovereign powers, separating responsibilities among separte branches, and including an elaborate system of checks and balances.

Their unique, special government formula can be summed up as follows: Limited government = Maximum Individual Liberty

— But one question remained: What can be done if the government violates the very Constitution which defines it? What protections are available for the people?

In fact, that question became very urgent in 1796 when the government enacted the Alien and Sedition Acts and attempted to quash free speech.

Thomas Jefferson articulated the most effective option – Nullification, or as he called it, “the Rightful Remedy.” Jefferson believed it was up to the States, the parties who created the federal government and who retained the bulk of sovereign power and who are most responsive to the concerns and interests of the People, to stand up to the government. James Madison articulated a very similar option, which he termed “interposition.”

What Exactly is Nullification?

— Nullification is a states‘ rights doctrine that says that a state can and must refuse to recognize and enforce a federal law that assumes power not delegated by the US Constitution.

— Nullification as a term was introduced by Thomas Jefferson in 1798 when he drafted the Kentucky Resolves to articulate the reason for the state to oppose an unconstitutional federal law – the Alien and Sedition Acts.

— Nullification is consistent with founding (Jeffersonian) principles.

— Nullification begins with the central premise that a federal law that exceeds the power granted in the Constitution violates the Constitution and is therefore no law at all. It is void and has no effect. It has no force of law. It is unenforceable. That is because it is based on invalid constitutional authority. [Laws need to be based on legal authority, and in fact, that is the very purpose of a constitution. If laws are not based on proper authority, then they are improper and illegal. They are null and void and therefore unenforceable. This is the concept at the core of nullification].

— But Nullification goes one step further!!

The doctrine states that if a law is unconstitutional and therefore void and has no legal effect, it is up to the states, the parties to the federal compact (see later), to declare it so and thus refuse to enforce it.

The government will always try to enlarge and concentrate its power. It would be foolish to wait for the federal government, or a branch thereof (such as the federal courts), to condemn its own law or censure its own conduct. [Remember that this was the great concern of the Anti-Federalists. They were skeptical that the government created by the Constitution of 1787 would tend to concentrate power. They were skeptical that it would try to take powers from the States, eventually neutering them and creating a national government. They wrote the Anti-Federalist Papers to try to warn the States about the dangers in adopting the Constitution and to prevent them from ratifying it. And then we know what happened. Alexander Hamilton, James Madison, and John Jay wrote a series of 85 essays answering the skeptics, providing assurances, and explaining the language and intent of the Constitution].

— Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and interpretation of the Constitution. But why should the Court, or any federal court for that matter, be such a final arbiter? They are, after all, a branch of the federal government. How can the federal courts truly be expected to be a fair umpire for the States? (Madison and Hamilton addressed this same concern in the Federalist Papers. That’s why the Supreme Court was only intended to “give its opinion” and offer “advice” as to the constitutionality of federal law. It was to guide Congress and the Executive so they could remain loyal and restrained in their powers. It was intended to be a weak branch)

Nullification provides the necessary “shield” between the people of a state and an unconstitutional law or policy (even judicial decision) from the federal government.

Jefferson termed it “The Rightful Remedy.”

Interposition: A Doctrine Very Close to Nullification

— James Madison articulated a states’ rights’ remedy which is very similar option, and he called it “Interposition.”

— This doctrine was introduced in the Virginia Resolves of 1798

— According to this doctrine, the powers of the federal government are limited by the plain sense and intention of the Constitution – as defined by the States. When the government exceeds those powers, the States have the right and the duty to INTERPOSE for the sake of the People and to “arrest the evil.”

“To Interpose” means — to intervene between two parties; to insert between one thing and another (Webster’s dictionary)

Why Nullification?

— To maintain Constitutional limits

— To preserve the balance of power between the States and the federal government

— To limit the size and scope of the federal government, thereby enlarging individual liberty and protecting against government tyranny

EXAMPLE of Nullification: The National Defense Authorization Act (NDAA) –

The nullification of the NDAA is a very recent example.

The NDAA defines the whole world, including the United States itself, as a battlefield in the War on Terror. (Note that “terror” is an ideology or a tactic and NOT a country or defined enemy). The NDAA gives the President the power to target American citizens as “belligerents” and detain them indefinitely. He has the power to suspend Habeas corpus (and other rights protected by the Bill of Rights) simply by labeling the person as an “enemy.” Abraham Lincoln did this during the Civil War.

[Note that after the Civil War ended, one of the Northerners detained indefinitely by Lincoln, Milligan, challenged the violation of habeas corpus. It went to the Supreme Court. Ex parte Milligan. The Supreme Court said that Lincoln’s detention of American citizens (ie, “northerners”) was unconstitutional. The Court said that it matters not what the person did but simply who he is. If he is an American citizen, he is protected by the Bill of Rights no matter what. The proper remedy for someone who fights against the country or “aids and abets” the enemy is treason (Article III). The Court, during its progressive era – under FDR, turned that decision on its head, which is a discussion I made in my earlier article: “Nullification and the NDAA”].

VIRGINIA recognized the evil contained in the NDAA and decided to use Nullification to declare and address its unconstitutionality.

How exactly does the NDAA offend or violate the Constitution?

First, only Congress can suspend Habeas corpus, and only in limited circumstances; otherwise the power is expressly PROHIBITED to Congress. In Article I, Section 9 (Powers Prohibited to Congress), clause 2, we find: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”

Second, should an American wage war against the United States or give material aid or comfort to the enemy (meaning that War has been declared), the rightful course of action – and the one that the Constitution expressly provides – is an action in TREASON.

SECTION 3. Clause 1 (the Treason clause) states: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.”

Virginia used Nullification to stand up against the constitutionality of the NDAA. Virginia’s NDAA Nullification Act (H.B. 1160) was introduced in the VA legislature on January 16, 2012 and after a few rounds of modifications between the state house and senate, it passed in April. With H.B. 1160, Virginia has declared that with the National Defense Authorization Act (NDAA), the federal government has assumed powers not delegated to it under the Constitution and what the bill does is to “Prevent any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency or the armed forces of the United States in the investigation, prosecution, or detainment of a United States citizen.” The bill takes effect on July 1st.

Think about the significance of the bill. It declares that the bill exceeds the power of the federal government and therefore it does not have the force of supreme law. The states do not have to comply. But it also goes one step further. It nullifies the Supreme Court decisions that allow the Executive to classify American citizens as “enemy combatants” so that they are not entitled to the protections of the Bill of Rights.

On the other hand, H.B. 1160 is not a true or full nullification bill. A true nullification bill would warn the government that no federal official will be permitted to exercise jurisdiction in the state of Virginia to enforce the NDAA unless it gets permission from the applicable state sheriff.

Nullification is the Rightful Remedy – the rightful state remedy – to limit the size and scope of the federal government. It is the constitutional remedy, under our system of dual sovereignty (embodied in the Tenth Amendment), the most powerful of checks and balances, to keep the government to its constitutional limits and within constitutional boundaries.

The Constitution either means what it says, or it doesn’t mean anything at all. The federal government must honor and obey the Constitution, just like the states and the citizens of this country are obligated to do, or our system of government begins to fall apart.

If we allow the federal government to impose even one unconstitutional law then we destroy the Constitution one piece at a time.

Both Thomas Jefferson and James Madison warned: “If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power.”

What are the bases of Nullification?

— The “Federal” Design of our government (We are a “Federation” of states)

— Dual Sovereignty

— Tenth Amendment

— The “Compact Theory” of the Union

— US Constitution, The Supremacy Clause (Article VI, Section 2)

— The Supreme Court decision in Marbury v. Madison (1803)

Our Federal System:

— Federation of sovereign states

— Dual Sovereignty

— Division of Power

— Implies that the “common” government should serve the states

As everyone knows, we are a FEDERAL government and not a NATIONAL government. A “federal” government implies that we are a federation of sovereign states which has delegated or transferred some its authority to a government to serve, maintain, and support the union. A federal system is one in which sovereign powers are divided between a common government and the governments of the individual states.

So here we see the basis for our system of Dual Sovereignty. In those limited areas where the Constitution gr ants the federal government power to regulate, the federal government is supreme and sovereign. But in all remaining areas, power is RESERVED to the States and therefore they are supreme and sovereign.

A federal system implies a government that “serves” the individual states. (In early documents, you will see that the states refer to the federal government as an “agent” of the states).

The Tenth Amendment:

“Federalism” is widely regarded as one of America’s most valuable contributions to political science. It is the constitutional division of powers between the national and state governments – one which provides the most powerful of all checks and balances on the government of the people. It is the foundation upon which our individual rights remain most firmly secured.

James Madison, “the Father of the Constitution,” explained the constitutional division of powers this way, in Federalist Papers No. 45: “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce.. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government.”

The principle of Federalism was incorporated into the Constitution through the Tenth Amendment, which states: “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.” It is similar to an earlier provision of the Articles of Confederation which asserted: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

The “Compact Theory” of the Union

Nullification is also based on “Compact Theory” (also referred to as the “Compact Theory of the Union” or the “Compact Theory of Federalism”)

Compact means contract, or agreement. They essentially all mean the same. Compacts, like contracts, bind parties to a set of conditions and responsibilities. In all contracts, each party suffers some detriment but also enjoys some benefits. The states suffer a detriment by having to delegate some of their sovereign power to the federal government on responsibilities such as security, commerce, relations with foreign countries, and currency. They enjoy a benefit by having a common government serve their interests in security and regulation of commerce among states, for example.

The Compact Theory was discussed even before the states ratified the Constitution. Both Thomas Jefferson and James Madison wrote separately to propose that the Constitution be based on this principle. Under the Compact Theory of Federalism, the United States is made up of a voluntary union of States that agreed to a set of conditions on how they will be organized and governed. They agreed to cede some of their authority in order to join the union, but that the states did not and could not, ultimately, surrender their sovereign rights. Under this theory, states can determine if the federal government has violated its agreements because they are the rightful parties who understand the terms and intent of the compact. The federal government was a CREATION of the compact and NOT a party to it. The compact theory states that our federal government was formed through an agreement by all of the states.

Also, as with all contracts and agreements, the federal compact is limited by its language and by the intent when it was entered into. It is only legally enforceable under such conditions. In other words, the government is only legal for the specific purpose it was ratified for and under the precise terms (except for amendments properly adopted through the Article V amendment process). The Constitution is a contact between the individual states which they can dissolve. And this was precisely what Thomas Jefferson referred to in his Declaration of Independence when he wrote the words:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”

The Compact Theory was explained and emphasized by Thomas Jefferson in the series of resolutions he wrote which would become the Kentucky Resolves of 1798, which we’ll go into detail in a bit.

Now, you don’t have to take my word that the Union was based on the Law of Compact. You don’t have to take my explanation as an attorney. Just go back and read what our Founders wrote, look at the wording used in the States’ ratifying Convention. And also look at the documents such as the Declarations of Secession” submitted by the Southern states when they seceded from the Union. You’ll see their understanding of the Constitution.

They used the terms “compact” and “agent” (meaning the federal government was intended to be an agent of the states).

It is not for us to redefine those foundations. And it is certainly not for the federal government to do so. Again, the federal government wasn’t even a party to the compact; it was the creation.

South Carolina’s Declaration of Causes of Secession (“Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union”) adopted on December 24, 1860, provides a nice summary of the establishment of our country:

“[With the Declaration of Independence of 1776] was established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.

In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States.

The parties to whom this Constitution was submitted were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that 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. On May 23, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.”

*** As we’ll see later, South Carolina’s “Articles of Secession” is based heavily on Jefferson’s “Kentucky Resolves.”

South Carolina’s Declaration of Causes goes on to emphasize that stipulations in the Constitution were so material to the compact that without them, the compact itself would never have been made.

Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and interpretation of the Constitution. But why should the Court, or any federal court for that matter, be such a final arbiter? They are, after all, a branch of the federal government. How can such courts truly be expected to be a fair umpire for the States, especially when it was the States themselves, the parties to the compact (contract), which understood and meaning and intent of the Constitution and the purpose for the federal government. The foundational point upon which nullification rests is that the federal government cannot and must not be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to evaluate the extent of its own powers, it will continue to grow, regardless of elections, the separation of powers, and all the other limits and checks and balances built into our system of government. This is precisely what Thomas Jefferson and James Madison warned about when they crafted the Kentucky Resolves of 1798 and Virginia Resolves of 1798.

The Supremacy Clause

The Supremacy Clause of the US Constitution expressly embodies the core principle of Nullification. The Supremacy Clause (Article VI, Section 2) reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made under the authority of the United States, shall be the Supreme law of the land; and the judges in every state shall be bound thereby…. “

The Supremacy Clause does NOT say and does NOT mean that “All laws passed by the Federal Government are the supreme law of the land.”

The Supremacy Clause means that Constitution is the supreme law of the land, and only laws passed according to legal authority granted by the Constitution are to be considered supreme law. Laws passed outside the scope of such powers are null and void and can be disregarded.

The undisciplined view that the government is protected in all that it does by the Supremacy Clause is one of the biggest obstacles to Nullification. We have to help root out this ignorance.

But you don’t have to take my word for this interpretation. Just look at what our Founders wrote at the time the Constitution was drafted:

— “If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. The laws are enacted pursuant to the powers entrusted to it by its constitution. But it will not follow from this doctrine that acts which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such….” (Alexander Hamilton, Federalist Papers No. 33)

— “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.” (Alexander Hamilton, Federalist Papers No. 78)

— “Clearly, a federal law which is contrary to the Constitution is no law at all; it is null, void, invalid. And a Supreme Court decision, which is not a ‘law,’ has no ‘supremacy,’ even if it is faithfully interpreting the Constitution. So it is the height of absurdity to claim that a Supreme Court decision that manifestly violates the Constitution is the ‘supreme law of the land.’” (William Jasper, editor of “The New American, an affiliate of the John Birch Society)

Marbury v. Madison (1803):

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall wrote:

“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? (In other words, the Constitution is NOT a “living document.”) The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. ”

SUMMARY:

In summary, the concept of Nullification is indeed a founding doctrine. It is a States’ Rights Remedy (termed the “Rightful Remedy”) inherent in the states’ reserved powers under the Tenth Amendment, founded in the Compact Theory of Federalism, articulated clearly in the Supremacy Clause, and incumbent upon them under our system of dual sovereignty. Nullification is the “Rightful Remedy” – the Rightful States’ Remedy – to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution.

What Nullification is NOT –

— It was NOT invented by advocates of slavery to perpetuate the institution.

— It was NOT used as a test run for a stand-off between the North and South.

— It was NOT used to instigate secession.

— It is NOT a racist doctrine

The Civil War unfortunately changed our thinking in this country, and it, along with the Civil Rights era and the Civil Rights 14th Amendment, affected how we are taught history and how we are taught to view the federal government. Most of us have been taught that the idea of nullification, like secession, is unconstitutional; and that it’s a discredited, racist political doctrine. We are taught that the federal government is supreme in everything that it does and the states are subordinate entities that must obey all federal laws and programs and policies. We’re told that ideas like nullification and secession died at Appomattox, Virginia in 1865 when the North defeated the South. After all, Abraham Lincoln, the first President to believe he had the power as President to suspend the Bill of Rights for ordinary individuals and to declare that the Union was intended to be perpetual and therefore the right of self-preservation and self-determination articulated in the Declaration of Independence – “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness” – no longer applies to Americans.

But Nullification and State Sovereignty and even the right of Secession did not die when the South conceded defeat to the Union Army at Appomattox.

But many states believe that. Take North Carolina, for example. Article I, Section 4 of the NC Constitution (titled: “Secession Prohibited”) declares that North Carolina shall “ever remain a member of the Union” and that it has NO RIGHT as a state to secede or dissolve the Union. Talk about state submission!! It’s memorialized right in the state constitution. This section needs to go. No group of sovereign individuals needs to be defined as being blind servants to a central government.

So again, we have to help change that mindset. Imagine that our President is Adolf Hitler and ask yourself: “What would you hope would happen” in this country. Would you hope that the states blindly follow whatever policies he puts in place? What if he did here what he did in Germany and passed the Enabling Act, which suspended the peoples’ rights of speech, press, and assembly? What if he nationalized the church? What if he enacted a policy of stripping certain citizens of their property and citizenship? And then proceeded to round them up and put them in detention or death camps…. because after all, at that point they wouldn’t be entitled to any rights that the laws protect. Would you want your state officials to say: “It’s not our job to second guess the federal government?” Or would you hope and pray that your state would stand up, assert its sovereignty, and protect you and fellow citizens from harm?

When was Nullification Used in our History?

1). 1796 – The Alien & Sedition Act

2). 1832 – The “Abominable” Tariffs of 1828 and 1832 (leading to “The Nullification Crisis”)

3). 1854 – Nullification of the Fugitive Slave Law of 1850 by the Wisconsin Supreme Court

4). 2007 – Montana passed the “Real ID Nullification” Bill

5). 2008 – Montana passed a resolution in anticipation of the District of Columbia v. Heller decision (2nd amendment)

6. 2012 – Virginia passed an NDAA Nullification Bill (effective July 1st)

1796 – ALIEN & SEDITION ACT:

When John Adams was elected president in 1796, tensions were very strained between the United States and France. It quickly escalated to the Quasi War (as it was called; an undeclared war) which would last until 1800. During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. [The Naturalization Act, the Alien Friends Act, the Alien Enemies Act, and the Sedition Act]. It was the Sedition Act which caused the greatest concern to the Republicans of the day and they challenged it on constitutional grounds. The Act established fines and jail time for “any person who shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.”

Convictions began to follow. Many honorable men were silenced under the Sedition Act, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers and newspaper editors, whose livelihoods were built on the critical analyses of government. As one convicted writer, Thomas Cooper, wrote about the impact of the convictions and subsequent trials: Americans “may learn some useful lessons… they will hold their tongues and restrain their pens on the subject of politics.”

The Sedition Act immediately sent up constitutional red flags to many of our Founders, although it appeared to be partisan in nature. Congress, dominated by Federalists, pointed to the “General Welfare” and “Necessary and Proper” clauses of the US Constitution for justification to pass these pieces of legislation. The President, John Adams, was a Federalist, and seemed to have no problem with the law. The Vice President, Thomas Jefferson, was a Republican, and he had a big problem with it. Even though the Act did not protect him (it protected the President and members of Congress only), it was his opinion that the protections of free speech apply most aggressively for political speech. He believed that when one enters politics, he should expect public criticism.

Jefferson pondered what remedies could be taken against this overtly unconstitutional act, including: (1) Judicial Review; (2) Nullification (he called the Sedition Act “a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image”); and (3) Secession (which he believed was a state’s inherent and natural right, stemming from the principles of self-government and self-determination). All three, he believed, were viable options. He felt secession was extreme and judicial review untrustworthy. The Supreme Court at the time was packed with Federalists and already Jefferson was suspicious of its ability to correctly interpret the Constitution of our Founders. The Court was already looking to the elastic clauses as sources of extra federal power instead of the qualifiers that they were intended to be. Jefferson was sure it would uphold the constitutionality of the Alien and Sedition Acts. But more importantly, Jefferson saw the Supreme Court as part of the problem. For one, it was itself a branch of the federal government and thus not an impartial arbiter. As he reasoned, the Supreme Court was a branch of the institution which engaged in a power struggle with the states. Secondly, it was comprised of human beings, who like the rest of mankind, are subject to passions, ambitions, allegiances, whims, and depravities. As he wrote:

“To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal. I know no safe depository of the ultimate powers of society but the people themselves.”

Thomas Jefferson and James Madison then began a series of correspondence throughout 1798 over their joint concern over the Alien and Sedition Acts, their discussions over the proper state response, and for the future of the constitutional republic. Jefferson drafted a series of resolutions that addressed several things, including the following: (1) it described the nature of the federal union; (2) it condemned the Alien and Sedition Acts as gross violations of the Constitution; and (3) it considered the proper response to be taken by the states. In fact, both men drafted separate resolutions.

Jefferson’s resolutions articulated his entire theory of the federal union and therefore explain the nature of our newly-established independent nation. (ie, It was an exposition of “Jeffersonian” principles). “Every State has a natural right in cases not within the compact (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits. Without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them,” he wrote. He gave a copy of his resolutions to his friend and neighbor, Wilson Cary Nicholas, who was a member of the Virginia Senate, who also shared them with John Breckinridge, a member of the Kentucky legislature and who just happened to be passing through Virginia at the time. These resolutions, with some modifications, would become Kentucky’s official position on the legitimacy of the Alien & Sedition Acts. They were called “The Kentucky Resolves of 1798,” and they stated, in part:

1. Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United states, and of amendments thereto, they constituted a general government for specific purposes – delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

About that same time, James Madison submitted his resolution to the Virginia legislature. It was called “The Virginia Resolves of 1798.” In that document, he articulated a specific term for the responsibility that a state has when the federal government oversteps its constitutional bounds. That term was “Interposition.” The Virginia Resolves of 1798 read, in part:

Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers)…

The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness…

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…

That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy…..

*** The “certain general phrases” that Madison was referring to are the elastic clauses of the Constitution – the “Necessary & Proper” clause and the “General Welfare” clause. I don’t believe they attempted to enlarge the “Commerce” clause at that time.

Jefferson and Madison believed that the other states in the Union would hold the same position and would adopt their resolutions. But they didn’t. In fact, in some states, Nullification and Interposition were not well-received at all. But then again, we have to remember that there was an ideological divide between the Federalists (who seemed willing to sell out the promises made in the state ratification conventions and concentrate power in the federal government) and those, like Jefferson and Madison, who believed in strict interpretation and strict adherence. In November 1799, the Kentucky legislature approved follow-up resolutions to those of the previous year, for the purpose of addressing the comments of those states who had not received Jefferson’s resolutions favorably. It was in the Kentucky Resolutions of 1799 that the word “Nullification” was used for the first time in an official document to describe Jefferson’s states’ rights’ remedy:

Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY: That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST.

Recall the title of this presentation: “Nullification: A Concept Whose Time Has Come.” I would submit that the reason that Nullification wasn’t roundly received by the states at this time – at the end of the 18th century -was because its time just hadn’t come.

THE NULLIFICATION CRISIS of 1832:

In 1824, a high protective tariff was proposed. The purpose was to protect industry in the North which was being driven out of business by low-priced imported goods (by putting a tax on them). On May 19, 1828, it was passed by the US Congress. It came to be labeled the “Tariff of Abominations” by the Southern states because of the negative effects it had on the Southern economy. It was a high tariff on finished products (as opposed to raw materials). In 1828, which part of the country was producing “finished products”? The North. The North had the industry. The South was still an agrarian society. Its economy was supported by its exports – of cotton, sugar, and more. Southerners relied heavily on sales in the world market for their produce so that the protective tariffs did not offer them any service (only a detriment). The South was harmed directly by having to pay higher prices on finished goods. It used to buy them through imports but the tariffs made them too expensive. The choice then was to pay the high prices or buy from the North (which was also expensive for them). The South was also harmed indirectly because reducing the exportation of British goods to the US made it difficult for the British to pay for the cotton they imported from the South. Furthermore, because the United States enacted the high protective tariffs on foreign products, those countries retaliated on raw materials exported by the Southern states. Other countries weren’t buying their products. The demand for raw cotton abroad was greatly reduced. The South responded by lowering the price on their products, cotton in particular. The North took advantage of this and bought the cotton at the lower value for their manufacturing looms. (The South in fact suspected the tariff was put in place for this very purpose – to benefit Northern industry).

All in all, the South suffered most of the losses from the tariff policy and the North reaped most of the gains and the South accused the government of not being concerned with Southern interests. In short, the South was impoverished and declining in prosperity while the North was becoming wealthy and very prosperous and the South believed the federal government was allowing it to happen and in fact, escalating the trend because it was pro-North and anti-South. To make matters worse, the exports of the South, along with the tariffs and customs revenues, were the only important sources of tax revenue that supported the federal government. Some have estimated that 30% of the U.S. population (the South) was providing at least 70% of the income to the government. In other words, the South was disproportionately supporting the federal government and yet was being disserved by it with oppressive policies.

Sentiments and protest against the “Tariff of Abominations” were particularly strong in South Carolina. In December 1828, John Calhoun, South Carolina’s prominent intelligent and political leader, wrote an essay, secretly, entitled “South Carolina Exposition and Protest.” It was published anonymously. In it, Calhoun criticized the concept of a protective tariff, arguing that tariffs should only be used to raise revenue, not to artificially boost business in certain regions of the nation. He called South Carolinians “serfs of the system” and urged that it was the state’s duty to interpose and “arrest the progress of evil.” (Madison’s words from The Virginia Resolves of 1798). Calhoun asserted that the states had a constitutional right to nullify any federal government actions they considered unconstitutional. (Calhoun called it a “veto”). In part, the essay read:

“No government based on the naked principle that the majority ought to govern, however true the maxim in its proper sense and under proper restrictions, ever preserved its liberty, even for a single generation. The history of all has been the same, injustice, violence and anarchy, succeeded by the government of one, or a few, under which the people seek refuge, from the more oppressive despotism of the majority. Only those governments only which provide checks, which limit and restrain within proper bounds the power of the majority, have had a prolonged existence, and been distinguished for virtue, power and happiness. Constitutional government and the government of the majority are utterly incompatible, it being the sole purpose of a constitution to impose limitations and checks upon the majority. An unchecked majority is a despotism…..

After due forbearance on the part of the State, that it will be her sacred duty to interpose her veto; a duty to herself, to the Union, to present, and to future generations, and to the cause of liberty over the world, to arrest the progress of a power, which, if not arrested, must in its consequences, corrupt the public morals, and destroy the liberty of the country.

To avert these calamities, to restore the Constitution to its original purity, and to allay the differences which have been unhappily produced between various States, and between the States and General Government, we solemnly appeal to the justice and good feeling of those States heretofore opposed to us…”

In 1828, Andrew Jackson was elected president. His vice-president was John Calhoun. Jackson, who is considered the father of the Democratic Party, was a strong supporter of a strong federal government. He did not know that Calhoun was a supporter of Nullification and States’ Rights and in fact, he didn’t find out about Calhoun’s “South Carolina Exposition and Protest” until 1831. Also in 1831, Calhoun took the opportunity in as president of the Senate (his role as VP) to offer his opinion to the body as to the proper relationship between the federal government and states: “Stripped of all its covering, the naked question is, whether ours is a federal or a consolidated government; a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the States, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, violence, and force must ultimately prevail.”

It was surprise that there was an ideological falling-out between Jackson and Calhoun. In fact, it soon became known that Jackson would not ask him to be in running mate in the upcoming 1832 election. Martin Van Buren would be the choice. By mid 1831, Calhoun resigned his position as vice-president and returned to South Carolina where he planned to challenge the tariff. On July 26, he delivered a powerful address – called the Fort Hill Address – on the topic of Interposition.

In 1832, Congress passed another tariff which was also protective in nature and also harmful to the South’s interests. Calhoun’s determination became stronger.

In November 1832, Andrew Jackson was re-elected. Upon learning of the election results, a convention of the delegates of the people of South Carolina was called, with Mr. Hayes as its president, and at its conclusion was put forth an Ordinance of Nullification. The exact title read: “An Ordinance to Nullify Certain Acts of Congress of the United States Purporting to be Laws Laying Duties and Imposts on the Importation of Foreign Commodities.” After the convention convened, the state legislature elected Hayes as Governor of the commonwealth. He resigned his Senate seat to assume the position. Calhoun was selected to replace Haynes. The Ordinance of Nullification forbade all authorities (state and federal) within the borders of South Carolina to enforce the payment of duties imposed by the tariff laws and stated that no case based on law or equity, decided in the courts of South Carolina and touching on the authority of the Ordinance or the validity of the acts of the legislature for giving effect to it, would be permitted to be appealed to the Supreme Court of the United States. The exact words of the Ordinance read:

And we, the people of South Carolina, to the end that it may be fully understood by the Government of the United States, and the people of the co-States, that we are determined to maintain this, our Ordinance and Declaration, at every hazard, Do further Declare that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider the passage by Congress, of any act… to coerce the State, shut up her ports, destroy or harass her commerce, or to enforce the acts hereby declared null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union: and that the people of this state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate Government, and do all other acts and things which sovereign and independent States may of right do….

The Ordinance of Nullification reached President Jackson on December 1st and on the 10th, he issued a proclamation to the people of South Carolina – The Nullification Proclamation. He warned that they should use their better judgment and denounce the Ordinance. The Proclamation stated that states and municipalities are forbidden from nullifying federal laws because the federal government was the supreme power in the United States. Jackson repudiated the idea that any state could “annul a law of the United States, arguing that nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. Webster said nullification amounts to defiance to the US Constitution and on the US House floor proclaimed that the Union is inseparable. Lincoln proclaimed the Union to be perpetual and therefore secession was an act of overt anarchy which the federal government could not tolerate.

Andrew Jackson denounced the idea that a state could “annul a law of the United States.” Jackson was a nationalist. He believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. He also believed that the Constitution had been established among the “people of the United States” in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

In retaliation to the actions of South Carolina, Congress passed the Force Bill which gave the President the power to use military force to subordinate states and force them to obey all federal laws. President Jackson immediately sent US Navy warships to Charleston Harbor.

Congress then scrambled to introduce a “Compromise Tariff Bill” which would phase the tariff rate back to acceptable rates within 10 years. Calhoun, who was then a SC Senator, voted for the bill. The state of South Carolina then rescinded its nullification of the tariffs and thus the crisis which threatened military force and even secession was averted. But out of principle, South Carolina went on record to nullify the Force Bill.

But the compromise wouldn’t last, for Lincoln ran on a platform in 1860 to raise the tariff to its 1832 rate.

Although the crisis was avoided, President Jackson continued to distrust South Carolina and the other southern states. To him, it wasn’t about the preservation of Liberty. He believed their goal was the destruction of the Union and the destruction of the government. He was in favor of a supreme federal government and the southern states were not. He believed the tariff issue was merely a ruse to undermine the government’s supremacy. In fact, he publicly espoused these views. He warned his countrymen that slavery would be the next “pretense” used by the “conspirators” (as he called the southern states) to destroy the nation.

The South, however, continued to express the opinion that slavery would ultimately be abolished. The Southern states generally felt that slavery was only to be regarded as a “choice of two evils” – an “unfortunate inheritance” to be “endured so long as it must be endured,” and “to be abolished just as soon as it could be done so safely.”

In 1832, it could be argued that Nullification was used successfully. The South wanted to abolish the tariffs which were harming its economy and the compromise bill of 1832 addressed that problem. It was never the position of South Carolina at that time to dissolve its bonds with the other states. John Calhoun stressed that South Carolina never wanted or intended to break away from the Union. Rather, he advanced the position of state interposition as a way for the country to address its problems so that extreme measures like secession could be avoided. Unfortunately, because Calhoun just happened to be a strong proponent of slavery and a white supremacist, he has been looked upon as the instigator or “father” of secession. Nullification and interposition have been associated with the efforts to perpetuate slavery. Yet the issue was the conduct of the government which served to advance the interests of the North at the expense of the South. The South believed the government, as a common agent, was supposed to look after each state’s interests equally.

Other southern states did not pursue nullification as South Carolina did, even though they too were harmed by the tariffs. I submit that again, the time was not quite right for Nullification. The country was splintering over the issue of slavery at the time. It was probably very hard for states to appreciate the value of nullification and interposition in advancing state sovereignty, rather than simply advancing slavery.

NULLIFICATION OF THE FUGITIVE SLAVE LAW in 1854: *** This is a story that the government most certainly doesn’t want taught in schools.

In 1850, Congress made a series of compromises to the South in order to hold the Union together against the divisive issue of slavery. This was known as the Compromise of 1850. Since the preservation of the Union (Northern control of the South’s economy), rather than the abolition of slavery was foremost in the minds of influential Republican bankers, manufacturers and heads of corporations, this compromise made perfect sense.

Part of this compromise was the passage of more stringent fugitive slave legislation that compelled citizens of all states to assist federal marshals and their deputies with the apprehension of suspected runaway slaves and brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter. The act also suspended habeas corpus and the right to a trial by jury for suspected slaves, and made their testimony non-admissible in court. The written testimony of the alleged slave’s master, on the other hand, which could be presented to the court by slave hunters, was given preferential treatment.

Joshua Glover was a slave in Missouri who managed to escape from his master. In 1854, with the help of the Underground Railroad, he made his way north, all the way to Wisconsin. There he found work at a mill in Racine, a community in which anti-slavery sentiment ran high. Unfortunately for Glover, his former master, B.S. Garland eventually managed to find out where Glover had taken up residence.

Accompanied by two US Marshals, the three of them took Glover by surprise. In spite of his resistance, Glover was subdued with a club and handcuffed. Thrown into a wagon, he was surreptitiously transported to Milwaukee, where he was thrown in jail. Glover’s abduction was discovered somehow or another, however, and in no time one hundred or so men landed by boat in Milwaukee.

The men marched towards the courthouse, which was adjacent to the jail, and crowds of people began to join their ranks or follow along as spectators. An abolitionist named Sherman Booth rallied the supporters of the citizen army shouting: “All freemen who are opposed to being made slaves or slave-catchers turn out to a meeting in the courthouse square at 2 o’clock!”

When the meeting at the courthouse adjourned, those who had assembled eventually resolved that Joshua Glover was entitled to at least two things: A writ of habeas corpus and a trial by jury. A local judge concurred and delivered the writ to the US Marshals at the jail. As might be expected, the federal officers rejected the writ as invalid because of what? — The Supremacy Clause. … because of the blind understanding that federal law trumps state judicial action.

In fearless defiance, the abolitionists broke down the doors of the jail and freed Joshua Glover. In an act that probably would have filled Sheriff Apaio with joy, had he been there, the Racine County Sheriff arrested Glover’s former slave master and the two US Marshals who had kidnapped him. They were charged with assault and put jail. In the meantime, the Underground Railroad assisted Joshua Glover as he crossed the border into Canada.

Also, Booth and two other men were arrested and indicted by a grand jury for violating the Fugitive Slave Law. Booth maintained that he had never incited the crowd to liberate Glover or that had helped Glover escape.

The case ultimately went to the Wisconsin Supreme Court which found Booth NOT GUILTY. Speaking not only for Wisconsin, but of all the states, the judge (Judge Smith) said that they would never accept the idea that:

“..an officer of the United States, armed with process to arrest a fugitive from service, is clothed with entire immunity from state authority; to commit whatever crime or outrage against the laws of the state; that their own high prerogative writ of habeas corpus shall be annulled, their authority defied, their officers resisted, the process of their own courts condemned, their territory invaded by federal force, the houses of their citizens searched, the sanctuary or their homes invaded, their streets and public places made the scenes of tumultuous and armed violence, and state sovereignty violated. Such shall not become the degradation of Wisconsin, without meeting as stern a resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and maintaining the dignity and sovereignty of their state.”

In other words, the Wisconsin state supreme court took the position that the Fugitive Slave Law was unconstitutional because it violated the rights of the states under the Tenth Amendment. States, or its officers and agents, could not be coerced by the federal government into denying fundamental human rights to slaves who have escaped.

The United States Supreme court eventually reversed the decision of the Wisconsin Supreme Court, and Booth and one other man accused of helping to liberate Joshua Glover were found guilty. Both spent only a few months in jail and had to pay some fines. But the state of Wisconsin did not back down from its opinion of the Fugitive Slave Law or its belief that as a state, it had no obligation to cooperate with federal agents.

As it turned out, Wisconsin, Connecticut, Rhode Island, Massachusetts, Michigan, Maine, and Kansas all went on to pass nullification legislation designed to neutralize federal enforcement of the Fugitive Slave Act of 1850.

2007 – MONTANA PASSED the “REAL ID NULLIFICATION” BILL –

On February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, “the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state.”

The Real ID Act of 2005 imposed federal requirements on state drivers’ licenses and therefore posed the threat of turning our state driver’s licenses into a genuine national identity card and impose new burdens on everyone, and especially state governments. At least 25 states have passed laws or resolutions so they won’t participate in the program and Congress has introduced bills to repeal it.

I use this particular example in 2007 to show that states are defying the federal government and using the word “Nullification” in protective actions from their legislatures.

MONTANA PASSES RESOLUTION in ANTICIPATION OF SUPREME COURT’S DISTRICT OF COLUMBIA v. HELLER DECISION –

Here is something else you didn’t learn in school or hear on the news.

Back in 2008, the Supreme Court heard the landmark case District of Columbia v. Heller which was the first time in seventy years that the high Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. The District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked. A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government claimed the 2nd Amendment only applies to militias, such as the National Guard, and is not an individual right. The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed and then the case went to the Supreme Court.

After the Court heard oral arguments and while it was deliberating, the Montana State Legislature passed a resolution – H.J. 26 – asserting its state sovereignty and announcing that if the Supreme Court didn’t uphold the 2nd Amendment as an individual right to have and bear arms, then the state of Montana would consider it a fatal breach of the Compact and therefore it would nullify and void its bonds with fellow states. In other words, it threatened secession if the Supreme Court took away gun rights.

The Montana Resolution was introduced on February 17, 2009, by MT Rep. Mike More, as H.J. 26. Montana thus joins the recent wave of fiery state sovereignty resolutions. And as with the New Hampshire Resolution, the Montana resolution borrows heavily from Jefferson’s Kentucky Resolutions of 1798, and then lists particular acts that would nullify the Constitution and void the compact by which Montana became a state – that is a threat to secede if the feds step too far. Here is an excerpt:

(21) That any act by the Congress of the United States, Executive Order of the President of the United States, or Judicial Order of the United States that assumes a power not delegated by the federal Constitution and Bill of Rights diminishing the liberty of this state or its citizens constitutes a Nullification of the federal Constitution and Bill of Rights by the government of the United States, which would also breach Montana’s “Compact With the United States.”

Acts that would cause a nullification and a breach include but are not limited to:

(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;

(b) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;

(c) requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to or as an alternative to incarceration after due process of law;

(d) surrendering any power delegated or not delegated to any corporation or foreign government;

(e) any act regarding religion, further limitations on freedom of political speech, or further limitations on freedom of the press; or

(f) any act regarding the right to keep and bear arms or further limitations on the right to bear arms, including any restrictions on the type or number of firearms or the amount or type of ammunition any law-abiding citizen may purchase, own, or possess.

(22) That if any act of Congress becomes law or if an Executive Order or Judicial Order is put into force related to the reservations expressed in this resolution, Montana’s “Compact With the United States” is breached and all powers previously delegated to the United States by the federal Constitution and Bill of Rights revert to the states individually.

New Hampshire introduced a similar resolution asserting its sovereignty. On March 2009, it introduced a resolution titled: “A Resolution affirming States’ Rights Based on Jeffersonian Principles.” As with the Montana Resolution, the NH resolution borrowed language heavily from Jefferson’s Kentucky Resolves of 1798 and listed those acts of the federal government which would cause a fatal breach of the compact holding the state in the Union. It failed to pass by only a few votes.

Virginia’s NDAA Nullification Bill Takes Effect July 1st (2012)

Virginia passed an NDAA Nullification bill – H.B. 1160 – to protect Virginians from the enforcement of the NDAA, and Governor Bob McDonnell signed in into law (effective July 1st)

Other states are submitting or passing nullification resolutions or bills in their legislatures. Additionally, county board of commissioners and even local Sheriff’s departments are passing such resolutions. The NDAA is clearly worthy of being called an “Intolerable Act” – a title given to those acts of King George to suppress the colonies into submission to England.

Nullification: A Concept Whose Time Has Come

Perhaps the time has finally come for Nullification to become the remedy to fix our government and re-establish the proper scheme and the principles on which our country was based.

As of August 4, 2010, at least 40 states have declared their sovereignty with 10th Amendment Resolutions. Rep. Glen Bradley of North Carolina introduced a similar resolution (House Resolution 34) but it currently sits in the Judiciary Committee (where bills “go to die.”)

We are in a constitutional crisis, there can be no doubt. One can even argue that we no longer have a legal government. Too bad more Americans weren’t paying attention in 2009, when Obama gave us a glimpse of his plans for this country. Addressing an audience at Georgetown University, he talked about his vision of America’s future that is “far different than our troubled economic past….’ He talked about his new ‘foundation’ and the task he faced of re-building this country, according to the policies that his administration designed. He used such words as “reform” and “transform.” He talked about needing “new legal authority” to make the changes necessary. He said that the Reagan model (that is, of limited government) was not a sustainable model for long-term prosperity.” In other words, the Constitution was not a workable model and it would have to go. That’s been his plan. He’s been trying to kill the Constitution ever since.

We feel the effects of a country that is no longer ruled by a government that abides by constitutionally limited authority. We feel it personally, in areas we hold dear such as privacy, the right to manage our own healthcare, the right of religious conscience, the right to be safe from the harmful effects of uncontrolled immigration, and the right to be secure from unwarranted government surveillance programs. The thought of drones patrolling our nation’s skies is something we could have never imagined.

Aside from the creation of the Federal Reserve (a cartel of private bankers who control the supply of money in this country and therefore the state of the economy; in violation of Article I, Section 8), the election of Senators by popular vote rather than by the state legislature (in violation of our doctrine of Dual Sovereignty), the progressive income tax (in violation of Article I, Section 9; the 16th amendment was never legally ratified), the use of executive orders (to get around the rule-making authority and process of Congress), and liberal Supreme Court decisions (Swann v. Charlotte-Mecklenburg Board of Education (1971), which forced busing on public school systems to achieve racial quotas, and the “Affirmative Action” decisions which “authorized discrimination to end discrimination” in violation of the 14th Amendment; Roe v. Wade (1973) which puts the right of a woman to control her fertility over the Life and Liberty rights of the unborn; Everson v. Board of Education of the Township of Ewing (1947) which introduced the term “Wall of Separation” and instructed that “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”; Hamdi v. Rumsfeld (2004) which held that although the language that Congress used in the Authorization of Use of Military Force (AUMF) allows American citizens to be detained in a narrow set of circumstances – for example, if identified as an “enemy combatant” – detainees must have a chance to challenge that detention), there are numerous other violations that have turned the our constitutional principles of separation of powers and checks and balances on their heads and have taken us outside the realm of constitutional governance.

Here are just some recent violations:

1). The Patriot Act. Just six weeks after the terrorist attacks of September 11, 2001, Congress adopted the Patriot Act. Enacted with the best intentions and in response to a serious threat, the Patriot Act passed under intense time pressure and without serious debate. Certainly, our government needs tools to prevent terrorism. And to the extent laws unduly tied the hands of those who protect us, those laws needed to be amended. But as so often happens in time of crisis, the pendulum swung too far. The Patriot Act didn’t just encourage information sharing so intelligence agencies could “connect the dots” to prevent the next attack. The Act gave the Executive Branch broad discretionary powers that are not needed in the fight against terrorism and serve only to infringe on Americans’ fundamental liberties. The Patriot Act has served to usher in a new era of Domestic Spying. The NDAA (see below), which identified the “whole world” as a battlefield in this War on Terror, has hinted that there is no foreseeable end to this “war.” (There is also no identifiable “enemy” as well, since “terror” is a tactic; an ideology). Since there is no time frame and no geographical boundaries, the Patriot Act is simply the necessary starting point for more aggressive “tools” to go after “really bad guys.”

2). Czars. Article II, Section 2 grants the president authority to appoint “inferior” officers, but those managers may not have any regulatory, legislative or law-making powers; such powers are reserved to the legislative branch. Today’s “czars” have the power of cabinet members without having to go through a vetting process or the confirmation process prescribed for cabinet members. Czars are unelected and untouchable political decision-makers — in violation of Article 1, Section 1 (“All legislative powers shall be vested in a Congress of the United States.”)

3). The Individual Mandate. The individual Mandate is a requirement that every American purchase health insurance, on penalty of civil fine. The individual mandate is unprecedented and exceeds Congress’s power to regulate interstate commerce. If it is allowed to stand, Congress will be able to impose any kind of economic mandate as part of any kind of national regulatory scheme. The present administration has interpreted the Commerce Clause to be another blank check of authority over commerce, industry, activities, and human conduct. It has interpreted it to be a license to compel people into the stream of commerce when it serves the government’s purpose.

4). Showdown with the Church. Under the President’s new healthcare initiative, churches must violate their teachings and rights of religious conscience, in violation of the First Amendment, by paying for contraceptive services and even the morning-after abortion pill. The Catholic Church is so threatened by the conduct of the Obama administration that it called a Conference of Catholic Bishops to discuss what they need to do and they have declared a two-week period entitled “Fortnight for Religious Freedom” (June 21-July 4th) for churchgoers and believers to pray for our rights of religious conscience and to continue to exercise that right as we pray, witness, educate ourselves and others as to its meaning, and re-evaluate its value in our lives as citizens and its value to our communities. On July 4th, the church bells will sound loudly for religious freedom.

The government has used the “Wall of Separation” as grounds for its healthcare initiative. The “Wall of Separation” is a legal fiction, created by a progressive Supreme Court, embodied by a “living constitution” and not the Constitution given to us by our Founders. [Note: The letter written by Thomas Jefferson to the Danbury Baptists read: “Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.” It is abundantly clear from the letter that the very prohibition against legislation creating an official church is itself the “wall of separation.” There appears no other obligation on the part of government. I never could understand why Justice Hugo Black, who wrote the infamous decision in Everson v. Board of Education of the Township of Ewing (1947), chose to cite Jefferson’s letter to the Danbury Baptists, which was written in 1802, for legal authority rather than his “Virginia Bill for Religious Liberty” (1777) which would be adopted by the Virginia legislature (in 1786; becoming known as the Virginia Statute for Religious Freedom), because it was that Bill and Statute which would become our First Amendment. That would make more legal sense than a letter, which can easily be taken out of context. Letters are not proper legal authority. Statutes and bills are proper authority because there are records on file with the legislatures when they are discussed and debated.

5). Targeted Killing of American Citizens. By the President’s hand, and using information that only he and his Executive “team” have had access to, three American citizens have been assassinated without the benefit of having been charged with a crime or seeing the evidence against them.

6). Immigration. The President is refusing to execute the immigration laws, which are a fundamental responsibility of the federal government (Article I, Section 8, clause 4). And worse, when individual states have attempted to deal with the crime and other negative effects caused by uncontrolled immigration and the inactivity of government, the US DOJ has filed lawsuits to block their efforts and declare their laws unconstitutional.

7). Exemption of a Class of Persons from Federal Immigration Laws. The President recently announced that a class of illegal immigrants – those who are young and getting an education – will be exempt from being deported and can remain in the country for at least 2 years. He declared this exemption by memorandum (or by press conference?). Only Congress has the constitutional authority to regulate immigration and naturalization. In fact, it only has authority to “establish uniform rules.” The Executive cannot make laws.

8). The NDAA. (The courts are implicated in this as well). This bill permits the Executive to do an end-run around the Constitution and label Americans as “enemy combatants” so that their fundamental rights under the Bill of Rights can be indefinitely suspended. The Constitution directs that the rightful remedy is Treason, which would still give the person his day in court. Under the NDAA, the President can order the following on any American he and his team can make up evidence against: indefinite detention, imprisonment, torture, and even assassination.

9). Drones. It has been estimated that there will be thousands of drones patrolling the skies by 2014 and working intimately with local law enforcement agencies. The drones will have the sensitivity to find marijuana plants growing in peoples’ backyards. Individuals in the United States have the freedom under the 4th Amendment to be free from unwarranted government searches and seizures.

10). Second Amendment. It is no secret that the Obama administration and other Democratic administrations favor gun control laws. Gun control laws violate the second amendment. We are very close to losing this fundamental individual right – this right which is intended to “enforce” all the other rights protected by the Bill of Rights. As explained earlier, back in 2008, the Supreme Court heard the landmark case District of Columbia v. Heller, which was the first time in seventy years that the high Court justices agreed to hear a case regarding the central meaning of the Second Amendment and its relation to gun control laws. The District of Columbia had passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger-locked. A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government’s position was that the Second Amendment is not an individual right and only applies to militias, such as the National Guard. The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed and then the case went to the Supreme Court. The Supreme Court, in a close 5-4 decision (with Justice Kennedy voting with the conservative block), held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. It found support for that interpretation in the clause’s history, including in the discussions made at the state ratifying conventions. The liberal members of the Court wrote a dissenting opinion stating that that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Ginsberg has gone on public record urging proponents of gun-control laws to bring the issue back to the Court “after President Obama has had a chance to appoint new justices in his second term” so that they can “get it right this time.”

I think the time has come. Our republic demands it.

Clearly, nullification is growing and being applied. One only has to google “Nullification” to see how popular it is becoming. Thomas Woods has a Nullification tour every year, there are radio shows which talk about it (Nullify Now), and there are local efforts to educate people. Recently, nullification has been used to nullify Real ID, federal wildlife laws, the NDAA, federal gun laws, medical marijuana laws, Cap and Trade, federal legal tender laws, and Obamacare.

States have passed or introduced “Firearms Freedom” bills (which says that as long as guns are made and retained within the state, they are outside the reach of the government’s commerce clause powers) and “Sheriffs First” legislation, which would make it a state crime for any federal agent to make an arrest, search, or seizure within the state without first getting the advanced, written permission of the elected county sheriff of the county in which the event is to take place. (Arizona has passed such a law and Tennessee and New Hampshire have each introduced one. Montana failed to pass theirs. Rep. Glen Bradley has introduced such a bill in the NC Legislature). Other efforts include State Sovereignty Resolutions, which assert state sovereignty under the Tenth Amendment and list offenses by the federal government which they consider so serious as to dissolve their bonds with the Union, “Bring the Guard Home” Resolutions, which assert that the Constitution does not provide for deploying state militia (now called the National Guard) outside the country and therefore those troops must be brought home, and Federal Tax Funds legislation, which would require that all federal taxes come first to the state’s Department of Revenue where a panel of legislators would assess the constitutionality of the Federal Budget and then forward to the federal government a percentage of the federal tax dollars that are Constitutionally-justified (the remainder of those tax dollars would either be kept for the state or returned to the people be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people). And finally, other states just simply are refusing to cooperate or recognize the legitimacy of federal policies (such as the DOJ blocking Voter ID laws or demanding, as it has with Florida, to stop going thru its voter rolls and purging them of ineligible voters).

On June 12, 2012, the Justice Department filed suit against Florida to block its effort to purge its voter rolls of non-U.S. citizens and to stop further attempts before the November election. Governor Rick Scott said Florida will refuse to comply. He defended the purge as an effort to protect Florida citizens from having their votes diluted by those ineligible to vote. He points to data compiled by comparing drivers’ license records with voter registration records which showed that as many as 182,000 registered voters may not be legal US citizens. Holder claims the purge unfairly targets illegal Latino residents.

Florida is filing suit now against the US Department of Homeland Security, claiming the federal government is frustrating their efforts and denying the state access to a database that would allow it to verify the citizenship of registered voters. By law, the government has to allow states access to the database.

Conclusion:

Nullification is a doctrine whose time has finally come. Why do I say that? Because at least forty (40) states currently recognize Nullification as a viable state remedy and are using it in some way to push back against the federal government. These states include: AZ, AL, AK, AR, CA, CO, GA, HI, ID, IN, KS, LA, ME, MI, MN, MO, MT, ND, NH, NV, OK, PA, SC, SD, TN, TX, UT, WA, and WY. Unfortunately, my state of North Carolina is not on that list.

The future of our republic depends on whether we can put aside political and ideological differences and reel in the power and the scope of of the federal government.

Recommended Reading:

Thomas Woods, “Nullification: How to Resist Federal Tyranny in the 21st Century” (2010).

Thomas Jefferson, The Kentucky Resolves of 1798

Thomas Jefferson, The Kentucky Resolves of 1799

James Madison, The Virginia Resolves of 1798

James Madison, The Virginia General Assembly Report of 1800

John Calhoun’s Fort Hill Address, July 26, 1831

Diane Rufino, “Nullification and the National Defense Authorization Act (NDAA)”

APPENDIX: Current Nullification Efforts:

— 10th Amendment Resolutions

— 1oth Amendment Bills

— Firearm Freedom Act

— Medical Marijuana Act

— REAL ID Nullification bills

— Healthcare Freedom legislation

— NDAA Nullification resolutions or bills

— Bring the Guard Home laws

— Cap and Trade Nullification resolutions or bills

— Constitutional Tender laws

— Federal Tax Funds Act

— Sheriffs First legislation

— nullification of federal gun laws

— nullification of regulation of intrastate commerce

Potential Future Efforts:

— Health Care Nullification

— Patriot Act

— No Child Left Behind

— State-Initiated Constitutional Amendments

What These Efforts Are:

10th Amendment Resolutions: 10th Amendment Resolutions are often referred to as “State Sovereignty” Resolutions. They are non-binding resolutions and do not carry the force of law. Instead, they are intended to be a statement of the legislature of the state. They play an important role, however. If you owned an apartment building and had a tenant not paying rent, you wouldn’t show up with an empty truck to kick them out without first serving notice. That’s how we view these Resolutions – as serving “notice and demand” to the Federal Government to “cease and desist any and all activities outside the scope of their constitutionally-delegated powers.” Follow-up, of course, is a must.

10th Amendment Bills: Unlike the many 10th Amendment Resolutions that have been introduced around the country since 2008, these “10th Amendment” or “State Sovereignty” bills are proposals for binding legislation. They include language to affirm the sovereignty of the people of the state and to create a commission or a committee to review the Constitutionality of acts emanating from the federal government.

Firearms Freedom Act: Originally introduced and passed in Montana, the FFA declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states. The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the “commerce clause,” with firearms as the object.

Medical Marijuana Laws: An honest reading of the Constitution with an original understanding of the Founders and Ratifiers makes it quite clear that the federal government has no constitutional authority to override state laws on marijuana. All three branches of the federal government, however, have interpreted (and re-interpreted) the commerce clause of the Constitution to authorize them to engage in this activity, even though there’s supposedly no “legal” commerce in the plant. At best, these arguments are dubious; at worst an intentional attack on the Constitution and your liberty.

REAL ID Act: Led by Maine in early 2007, 25 states over the past 2 years have passed resolutions and binding laws denouncing and refusing the implement the Bush-era law which many expressed concerns about privacy, funding and more. While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void.

Health Care Freedom Act: The Health Care Freedom Act is considered in states as either a bill or a state constitutional amendment – effectively prohibiting the enactment of any new government-run healthcare programs within the state. While many of the bills have language similar to true nullification legislation, many of them are promoted solely as a vehicle to drive a federal court battle – which is not nullification in its true sense.

Bring the Guard Home: Under the Constitution, the militia (now called the National Guard) may only be called into duty by the federal government in three specific situations. According to Article I, Section 8; Clause 15, the Congress is given the power to pass laws for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The militia was intended by the Founders and Ratifiers to be defense force and nothing more. Deployments outside the country were not considered, and neither were internal deployments in pursuance of powers that were not delegated to the federal government. Congress has passed numerous laws in the past 100 years giving the federal government additional authority not mentioned in the Constitution. But, without amendment, altering the enumerated powers by legislative fiat is, in and of itself, unconstitutional. Campaigns in states around the country are working to reassert the authority of governors over guard troops.

Constitutional Tender: The United States Constitution declares, in Article I, Section 10, “No State shall… make any Thing but gold and silver Coin a Tender in Payment of Debts.” Constitutional Tender laws seek to nullify federal legal tender laws in the state by authorizing payment in gold and silver or a paper note backed 100% by gold or silver,

Cap and Trade: Cap and Trade is often claimed to be authorized under the Commerce Clause of the Constitution. At best, this is a highly dubious claim. This interstate regulation of “commerce” did not include agriculture, manufacturing, mining, or land use. Nor did it include activities that merely “substantially affected” commerce.

State Sovereignty and Federal Tax Funds Act: Such laws would require that all federal taxes come first to the state’s Department of Revenue. A panel of legislators would assay the Constitutional appropriateness of the Federal Budget, and then forward to the federal government a percentage of the federal tax dollars that are delineated as legal and Constitutionally-justified. The remainder of those dollars would be assigned to budgetary items that are