The Council Has Spoken! Our Watcher's Council Results

Naturally, nullification is quite controversial and utterly repugnant to those who champion big government and the centralization of ever more power in Washington, D.C.

A quick Google search brings up this WikiPedia definition for Nullification:

Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has never been legally upheld by federal courts.

After reading WikiPedia’s take on nullification, I’m reminded of a quote by Thomas Jefferson: “The Constitution is a mere thing of wax in the hands of the judiciary which they may shape and twist into any form they please.”

It was Thomas Jefferson who wrote (emphasis added), “That a nullification, by those sovereignties [States] of all unauthorized acts done under the color of that instrument [the Constitution] is the rightful remedy.” Thomas Jefferson introduced the term “nullification” in the Kentucky Resolutions of 1798. James Madison wrote in the Virginia Resolutions of 1798 that the States are “duty bound to resist” when the federal government violates the Constitution.

Thomas E. Woods, Jr., author of the book Nullification, elaborates:

But Jefferson didn’t invent the idea. Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Patrick Henry and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

[…]

As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. 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 much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.

A mere 10 years following the ratification of the U.S. Constitution, the second president of the United States, John Adams, signed into the law the Alien and Sedition Acts. The Sedition Act made it a punishable crime to criticize the government or its officials. People were actually put in prison for merely being critical of the president or Congress—including Matthew Lyon, a Vermont congressman who had fought for independence during the Revolutionary War! Is this not a grossly unconstitutional act that violates the very letter of the “free speech” clause in the First Amendment? You be the judge. The onerous Sedition Act is what prompted the Kentucky and Virginia Resolutions of 1798, also known as the “Principles of 98.”

The most common rebuttal by those who oppose the use of nullification is to cite the “supremacy clause” from the U.S. Constitution (Article VI, clause 2). A good illustration of this argument can be found in a 2011 article that appeared at TalkingPointsMemo.com.

Via TPM:

“The concept of states’ rights mostly clings to one interpretation of the Tenth Amendment, which says 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.” Tenthers would say this means a state doesn’t have to follow federal laws the state believes exceed the federal government’s constitutional authority.”

“But this pretty clearly goes against the Supremacy Clause of the Constitution, in Article 6″ :

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

What is being implied by the above excerpt from the TPM article is a sentiment that has been echoed by others opposed to the idea of nullification—namely, that we cannot have the States picking and choosing which laws they want to obey or it would lead to anarchy. (Of course, unless it is liberals doing the nullifying … like nullifying federal marijuana prohibition statutes.) Actually, there is a lot of truth in that line of thinking. But it ignores a very important point that is clearly spelled out in the “supremacy clause.”

So, let’s just take a closer look at just what the “supremacy clause” says (emphasis added):

This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land …

The key point in the “supremacy clause” that is consistently ignored by those who favor giving the federal government ever more power over the States is the phrase “in pursuance thereof .” What does “in pursuance thereof” mean? It means “the carrying out of a plan or action” (pursuance) “of the thing just mentioned” (thereof).

What was just mentioned?