By Publius Huldah
What did our Framers really say we must do when the federal government usurps power?
They never said, “When the federal government ignores the Constitution, amend the Constitution”.
They never said, “File a lawsuit and let federal judges decide.”
Instead, they advised two manly remedies. We’ll look at one of them – nullification – in this paper. 1
First, let’s look at the Constitution we have.
Our Federal Government has Enumerated Powers Only
With our federal Constitution, we created a federal government. It is:
- A federation of sovereign States united under a national government ONLY for those limited purposes itemized in the Constitution;
- With all other powers reserved by the States or the People.
We listed every power we delegated to the federal government: Most of the powers delegated over the Country at large are listed at Article I, §8, clauses 1-16.
All our Constitution authorizes the federal government to do over the Country at large falls into four categories:
- Military defense, international commerce & relations;
- Immigration & naturalization;
- Domestically, create a uniform commercial system: weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
- With some of the amendments, secure certain civil rights.
That’s basically it! All other powers are reserved by the States or the People. Depending on how you count, Congress only has 18-21 powers over the Country at Large. 2
It is only with respect to the enumerated powers listed in the Constitution that the federal government has lawful authority.
- If it’s on the list, Congress may make laws about it.
- But if it’s NOT on the list, Congress usurps power & acts unlawfully when it interferes.
Is “education” on the list of delegated powers? Raising children? Health Care? Environmental regulation? Is most of what they do on the list? Since these are not delegated powers listed in our Constitution, the federal government usurps power and acts unlawfully when it meddles.
So then, what do we do when the federal government usurps powers not on the list?
Don’t Submit to Unconstitutional Laws – Nullify Them! 3
Our Framers said the federal government is our “creature” and must obey our Will as enshrined in our Constitution. And when it doesn’t, we must defend the Constitution by invoking our natural right of self-defense:
Alexander Hamilton said in Federalist No. 28 (last 5 paras): [I’m condensing]
“If the representatives of the people betray their constituents, there is no recourse 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 … [by] … State governments [which] will … afford complete security against invasions of the public liberty by the national authority…” [emphasis mine]
Hamilton says 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 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]
Thomas Jefferson said in his draft of The Kentucky Resolutions of 1798, 8th Resolution:
“…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 … 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…” [emphasis mine]
James Madison commented on this in his Notes on Nullification (1834):
“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” [emphasis mine]
Note that Hamilton, Jefferson, and Madison said nullification is a natural right – it is NOT a “constitutional right”. Rights don’t come from the Constitution – they come from God. 4
HERE is Madison’s “Report of 1799-1800 on the Virginia Resolutions”. He said under his discussion of the 3rd Resolution [I’m condensing]:
- The States, in their sovereign capacity, are the parties to the constitutional compact; and are thus the final authority on whether the federal government has violated the Constitution. There can be no tribunal above the authority of the States to decide whether the compact made by them has been violated by the federal government. (p 192)
- That if, when the federal government usurps power, the States don’t stop the usurpation, and thereby preserve the Constitution; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding. (p195)
- That the Judicial Branch is as likely to usurp as are the other two Branches. Thus, the Sovereign States have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches. (p196)
- That all 3 Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of the States. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. (p196)
- So the Judicial Branch does not have final say as to the rights of the parties to the constitutional compact. Otherwise, the delegation of judicial power would annul the authority delegating it; and the concurrence of the judicial branch with the other branches in usurping powers, would subvert the Constitution forever. (p196)
In Federalist No. 46, Madison says, respecting unconstitutional acts of the federal government:
- the People can refuse to cooperate with federal officers [7th para];
- State officials can oppose the feds [7th para];
- State Legislatures can invent legislative devices to impede & obstruct the federal government [7th para];
- States can cooperate in concerted plans of resistance [8th para];
- States can easily defeat the federal government’s schemes of usurpation [10th para]; and as the last resort,
- States must defend themselves from the federal government – that’s why the People are armed.
So Jefferson, Hamilton and Madison tell us: When the federal government asks or directs States to do things which aren’t on the list, the proper response is, “No!”
State Governments Must Man Up and Preserve our Constitution.
The Declaration of Independence says at the 7th para that the colonials “opposed with manly firmness” the King’s “invasions on the rights of the people”.
We need today that same manly opposition to tyranny. And we are starting to see some: The Tenth Amendment Center says over 200 bills have been filed this year in State Legislatures to nullify unconstitutional acts of the federal government. E.g.:
- To allow terminally ill people access to experimental drugs & medical treatments despite FDA rules – drugs & medical treatments are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
- Deny resources and assistance to the National Security Agency – spying on us is not on the list! And the 4th Amendment didn’t stop them from spying on us!
- Nullify federal bans on growing hemp & marijuana. Agriculture and drugs are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
An Indiana Legislator filed a bill to nullify all federal EPA Regulations – environmental protection is not on the list! And the 10th Amendment didn’t stop them from usurping power over the environment.
Disarming the American People: If Congress by law, or the President by executive order, or the BATF by rule, or the supreme Court by opinion, or the federal government by UN Treaty, orders The People to turn in our arms, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. Gun control is not on the list! And the 2nd Amendment didn’t stop them from regulating ammunition, firearms, and firearms dealers.
Accordingly, States should pass laws directing their firearms and ammo dealers to ignore all federal dictates which pretend to restrict arms, firearms, ammo, and sales of same. The Law should also provide that the State Attorney General will defend any Citizen of the State from unlawful acts committed against him by agents of the federal government attempting to enforce unconstitutional federal dictates within the borders of the State.
Prayer in the Public Schools: When, in 1962, the US supreme Court began its war against Christianity by banning prayers in the public schools, State legislatures should have passed laws directing their public schools to ignore the unconstitutional opinion of the supreme Court. “Religion”, “prayers”, and “public schools” are not on the list of delegated powers. And the 1st Amendment didn’t stop them from “prohibiting the free exercise of religion”.
Brave Citizens Must Man up Also.
As noted above, Madison says in Federalist No. 46 that the People can refuse to cooperate with federal officers.
Rosa Parks & Martin Luther King showed us spine 50 years ago when they nullified the State & local Jim Crow laws by refusing to obey those unconstitutional laws.
Recently in Connecticut, Citizens refused to obey an unconstitutional State law which pretends to require them to register their firearms. Art. I, §15, CT Constitution says:
“Every citizen has a right to bear arms in defense of himself and the state.”
If you are a “Citizen”, you have the right to bear arms – that’s all you need in Connecticut. So the Connecticut Statute making it a felony to possess guns which are not registered is unconstitutional as in violation of Art. I, § 15 of the State Constitution.
And The People – as the creators of the State government – are the ones to ultimately decide!
All nullification requires is a spine. And Rosa Parks & MLK showed us what spine looks like: You say, “No more!”
The “we lost the civil war” objection to Nullification.
Those who chant this objection seem to have in mind the “nullification crisis of 1832”. Let’s debunk it:
The southern States were agricultural. They bought manufactured goods from England. England bought southern cotton. Infant industries in the North East were producing some of the same manufactured goods as England; but because they were more expensive than the imports, they couldn’t compete.
So in 1828, Congress imposed a high tariff on the imports. The Southern States called this the “tariff of abominations”, because it made the English goods too expensive to buy; and when the Southern States stopped buying English goods, England stopped buying Southern cotton. This devastated the Southern economy.
Note that Congress has specific authority to impose tariffs on imports: Art. I, § 8, cl. 1. So the Tariff Act of 1828 was constitutional.
The nullification crisis of 1832 was brought on because S. Carolina wanted to “nullify” the Tariff Act of 1828 – a constitutional law! South Carolina developed a bizarre theory that
- A State has a “constitutional right” to nullify any federal law; and
- The nullification is presumed valid unless ¾ of the States say it isn’t valid.
In James Madison’s Notes on Nullification (1834), he discussed and debunked S. Carolina’s theory. He said:
- The federal government has delegated authority to impose tariffs;
- The Constitution requires that tariffs be uniform throughout the United States;
- States can’t nullify tariffs authorized by the Constitution;
- ¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government; and
- Nullification is not a constitutional right.
Near the end of his Notes, Madison quoted Thomas Jefferson’s famous statement:
“…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 …to nullify of their own authority all assumptions of power by others within their limits …” [emphasis mine]
Madison then says:
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]
Do you see? Madison’s points are:
Start Doing YOUR Duty
- States may not properly nullify constitutional acts of the federal government; and
- When an act of the federal government is unconstitutional, nullification is a NATURAL RIGHT – not a “constitutional right”. 5
Your Duty is to read our Declaration of Independence and Constitution and learn The List of Enumerated Powers. YOU were supposed to enforce the Constitution with your votes. But instead of supporting only candidates who knew and obeyed our Constitution, you abdicated your Responsibility and voted for candidates who told you what you wanted to hear.
For the Sake of your Country and Posterity, you must also renounce cowardice and appeasement as the response to evil.
If you fail us, hell on Earth is just around the corner.
1 The other Remedy is to elect faithful representatives. At the Virginia Ratifying Convention on June 20, 1788 at , James Madison said our Constitution depends on the people having the “virtue and intelligence to select men of virtue and wisdom” to office. In Federalist No. 44 [12th para from end], he says when Congress usurps powers, and the executive and judiciary departments go along with it,
“…a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…” [emphasis mine]
But we keep electing ignorant phonies who know nothing about our Constitution. Why do we do this?
2 THIS Chart lists the enumerated powers over the Country at Large and illustrates how Principles in our Declaration of Independence were implemented in our Constitution.
3 Stop quibbling over terminology. As a People, we have lost the ability to think conceptually. When some don’t see the word, “nullification”, in a writing, they insist the writer didn’t support it. But the concept is refusal to submit to unconstitutional laws. You can call it “non-violent civil disobedience”, “that original right of self-defense”, “resistance”, “refusal to obey”, “impeding & obstructing”, “nullification”, “interposition”, or something else. I use “nullification” because the term has a distinctive meaning and was used by our beloved Thomas Jefferson. You may call broccoli “broccoli”, a “green vegetable”, a “cruciferous vegetable”, a “super food”, or “little trees”. But “broccoli” is the most precise and distinctive term. Do you see?
4 So when Michael Farris, and others who tell us a convention is the only way out, disparage nullification as an “extra-constitutional doctrine”, the proper response is: Nullification is NOT a “constitutional right or remedy” – it is that NATURAL RIGHT of self-defense which pre-dates and pre-exists the Constitution. Farris has repudiated our Founding Principles that Rights come from the Creator God, and that the purpose of government is to secure the Rights GOD gave us (Declaration of Independence, 2nd para). In Farris’ brave new world, “rights” come from the Constitution – where they are subject to the will of human governments. See, e.g., his so-called “parental rights” amendment HERE. “Child raising” is not now on the list of delegated powers – but §3 of Farris’ “parental rights” amendment would delegate power over children to the federal government. Read it.
5 Rights don’t come from the Constitution! They come from GOD! PH