"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." –Tenth Amendment to the United States Constitution

Recently, I was invited on the Sons of Liberty Radio broadcast to discuss the Tenth Amendment and the authority of the States to nullify unconstitutional laws. The following is a summary of my comments. I have learned a great deal from our constitutional scholar Publius Huldah, for which I am grateful. Many of the things mentioned I have been taught through her writings.

The States are their own sovereign country, an ideology largely lost after the tyranny of Abraham Lincoln and the War of Northern Aggression (and if there are those out there that think I'm blowing smoke, I would encourage them to read Jefferson Davis' Rise and Fall of the Confederate Government.) The states created the federal government, not the other way around and as such, it is the creature and the subordinate to the states.

Some might point to Article 6, clause 2 to refute the above claim:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

However, the problem is in the phrase "pursuance thereof," which limits the federal government's supremacy to laws that were made pursuant to the Constitution.

In Federalist No. 33, Alexander Hamilton wrote:

…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION …

In the next paragraph, Hamilton says that a law made by Congress which is not authorized by the Constitution,

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…

Hamilton writes in Federalist No. 27:

…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…

Hamilton writes in Federalist No. 78:

…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

When it comes to federal laws, is there a precedent for nullification by the states?

There most certainly is precedent, it's called the anti-commandeering doctrine and rests on primarily four Supreme Court Cases, the earliest dating back to 1842.

Printz v. US is the cornerstone in this doctrine. The ruling states in part:

"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States' officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program…such commands are fundamentally incompatible with our constitutional system of dual sovereignty."

The Tenth Amendment Center has also pointed out this little nugget:

Finally, the Court ruled that the federal government cannot force the states to act against their will by withholding funds in a coercive manner. In Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Roberts argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress's exercise of the spending power "thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' " Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system "rests on what might at first seem a counterintuitive insight, that 'freedom is enhanced by the creation of two governments, not one.' " Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, "the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions." New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Were the founding fathers onboard with nullification?

Our own Publius Huldah has taught us that there are two conditions precedent for nullification:

  1. The act of the federal government must be unconstitutional - usually a usurpation of a power not delegated to the federal government in the Constitution; and
  2. The act must be something The States or The People can "nullify"- i.e., refuse to obey: the act must order them to do something or not do something.

She goes on to expound,

"A State 'interposes' when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition in Federalist No. 33 (5th para):

'If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [the Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.' [emphasis mine]

"Nullification" is one form of interposition.

Why are the states interposing? They would do it to protect the rights of their citizens from a tyrannical federal government. This concept comes from the Declaration of Independence.

  1. Rights come from God, not the constitution or anything else;
  2. People create governments;
  3. The purpose of government is to secure the rights God gave us; and
  4. When a government We created seeks to take away our God given rights, We have the Right – We have the Duty – to alter, abolish, or throw off such government.

James Madison said in Federalist No. 45 the powers delegated to the feds was in a few and defined areas.

"The powers delegated by the proposed Constitution 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, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which … concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Thomas Jefferson added:

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

James Madison commented on Jefferson's statement:

"… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…"

Alexander Hamilton wrote in Federalist No. 28:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …"

Hamilton then went on to demonstrate how The States can rein in a usurping federal government:

"…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…"

As you can see, not only did our Founding Fathers agree with the States' authority to nullify unconstitutional laws made by the federal government, but there is a historical, legal precedent that forbids the federal government from enforcing such illegal laws.

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