Skip to comments.Secession or nullification
Posted on 04/09/2002 10:21:11 PM PDT by KrisKrinkle
A couple of weeks ago, I reviewed Loyola University (Maryland) professor of economics Thomas DiLorenzo's "The Real Lincoln," a book that presented abundant evidence that most of the Founders took the right of state secession for granted. Despite that evidence, some readers concluded differently. Let's consider an alternative to secession in response to federal government encroachment on our liberties. Suppose Congress enacted the Federal Clean Thoughts Act (FCTA) and President Bush signed it. Under its provisions, before books and newspaper reports could be published, and before television and radio programs could be broadcasted, prior approval of their "fitness" would have to be obtained from the Federal Clean Thoughts Commission. Several parties bring a lawsuit before the U.S. Supreme Court charging FCTA is a violation of the First Amendment. However, the court finds that under the Constitution's "general welfare clause," the law is constitutional.
What do Americans do? Do we accept the tyranny or pick up the sword, or do we think about state secession again? I would hope that the response of my fellow Americans wouldn't be: "Williams, the law is the law. The Court has said FCTA is constitutional, and our job is to obey." What's clear in this scenario is that the legislative, executive and judicial branches of government are joined with one another to undermine our Constitution and destroy our liberties.
Do we allow the federal government to determine the scope of its own powers? Should we accept whatever Congress, the White House and the courts say is constitutional? Not according to Alexander Hamilton, who in Federalist Paper 28 said, "The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."
One response to federal encroachment is for state governments to declare federal laws that have no constitutional authority null and void, and refuse to enforce them. While the U.S. Constitution provides no specific provision for nullification, the case for nullification is found in the nature of compacts and agreements. Our constitution represents a compact between the states and the federal government. As with any compact, one party does not have a monopoly over its interpretation, nor can one party change it without the consent of the other. Additionally, no one has a moral obligation to obey unconstitutional laws. That's not to say there isn't a compelling case for obedience to unconstitutional laws: the brutal force of the federal government to coerce obedience.
While Congress hasn't yet enacted such a flagrant violation of the First Amendment, most of what Congress does, with U.S. Supreme Court and White House sanction, represents constitutional encroachments of varying degrees. You say, "Williams, explain that." Article I, Section 8 of our Constitution enumerates (lists) those powers delegated to Congress. The Tenth Amendment reads, "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." That clearly says that powers not delegated to Congress by Article I, Section 8 belong to the people and the states.
In violation of both the letter and spirit, the federal government imposes unconstitutional and costly mandates covering the gamut from education and land usage to how much water can be used to flush toilets. I wonder when a governor and his state legislature will summon the courage to declare some of these federal laws null and void, and refuse to enforce them.
Of course, Washington might respond by not sending back money the citizens pay in federal taxes. Then the potential of ugliness arises because the state can establish a mechanism to withhold the money its citizens send to Washington.
I have to wonder. Have the majority become so dependant on the Nanny Government that if a group were to rise up to suggest that the Federal government be dissolved would great mobs arise to defend the Federal Government and all the government doles out.
Is this on it?
Once again, Williams doesn't seem to have thought this through very well at all. When one really looks at what he's suggesting, it represents a case of saving the Constitution by violating it.
Williams cannot possibly advocate that a state can ignore all federal laws they happen to dislike. The only reasonable interpretation is that he's suggesting that states have a moral duty to oppose unconstitutional acts.
Unfortunately, that raises some substantial Constitutional difficulties. No state is empowered by the Constitution to decide what is, or is not, Constitutional. That is a power reserved to the Supreme Court, under Article III. To bypass that enumerated power contradicts the point Williams seeks to make.
Suppose Congress passes Law X, and the Supreme Court rules that Law X is Constitutional -- which, under Article III, it is empowered to do.
Based on the Supreme Court ruling, the state's nullification action is unconstitutional: According to Article VI, the state's officials and judges are explicitly bound to uphold the Constitution, including this particular issue.
Thus, even if some particular attempt at nullification is morally justified, nullification is nevertheless an act insurrection against the properly constituted government.
The proper response of the Federal Government is of course open to question, and it's probably determined on a case-by-case basis anyway.
I think the problem here is that Williams has simply misdirected his ire. If there are problems with the federal government (and there are), those problems originate not in Washington, D.C., but in the states, and from the people of those states, from whence come the Senators and Representatives who pass those unconstitutional laws.
At root, the problem is a moral one. To quote John Adams: Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
Probably the best modern-day example of an attempt to nullify federal laws was George Wallace. According the linked Washington Post story: In September 1963, Wallace ordered state police to Huntsville, Mobile, Tuskegee and Birmingham to prevent public schools from opening, following a federal court order to integrate Alabama schools. Helmeted and heavily armed state police and state National Guard units kept students and faculty from entering schools. Following civil disturbances resulting in at least one death, President Kennedy again nationalized the Guard and saw the schools integrated.
Ironically, the motivation behind this particular nullification attempt is little different from what led the South to seceed prior to the Civil War.
The states, as well as the people, do not derive their powers from the Constitution. That is the whole point of the 9th and 10th Amendments. The Constitution was written to enumerate the powers of the federal government, except in those instances where "state" or "states" is specifically mentioned.
"...That is a power reserved to the Supreme Court, under Article III."
Where exactly does it say that the Supreme Court shall have sole power in deciding what is or is not constitutional? Benjamin Franklin once said, "It is every American's right, and obligation, to read and interpret the Constitution for himself." The Suprem Court is supposed to interpret law in light of the Constituton. It is not supposed to interpret the Constitution itself. If that's the case, nine people in black robes are able to rule the nation. Is that what our ancestors fought and died for?
"...nullification is nevertheless an act insurrection against the properly constituted government."
Who originally constituted said government? If memory serves, "we the people."
Wisdom of our Forefathers - I'll follow Madison's interpretation over yours.
Considering that it was done first by Virginia and Kentucky in resolutions written by Jefferson and Madison, architects of the very same 'properly constituted government', and followed less than 30 years later by Calhoun over tariffs, whose actions BTW lead to lower tariffs but not low enough considering the War of NA. Not to mention those fun loving wacky Federalists up north. As many times as the north threatened secession between 1800-1820, I'm suprised this nation lasted until 1860.
Nullification is the only one legal step down the road to secession. And the men who founded this nation, wrote the Constitution itself, and were involved in the political arena during the first 20-30 years of the nation saw it, accepted it, and when needed used nullification to keep the federal government in check
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