Nullification

Founders and Framers

Nullification

Natural law and the Compact

By Stephen L. Wilmeth

            There lays my copy of the Constitution.

            How many years has the reference been repeated about its importance to our way of life. Both sides arguing the constitutionality of a federal action … both sides using the defensive measures it projects into the validity of their position.

            I am afraid I must reluctantly agree with Las Cruces, New Mexico radio talk show host, Michael Swickard. We really don’t have a Constitution. The patronization of its reference is more rhetorical than it is sincere. There is loyalty to its purpose only on the basis of political symbolism.

If we are honest with ourselves, few of us learned the true measure of its genius. Fewer yet learned the most important points from any instructor. If the instructor was able to grasp the measure of its profound simplicity, he didn’t communicate to us any notion of its most fundamental binding. A virtuous and moral man is imperative.

Perhaps there is no virtue among us. That was certainly the position of the naysayers before the Revolutionary War. They doubted the ability of a common man to govern.

James Madison was one who worried. He feared an American descendency without virtue and morality. He was convinced without those two qualities the Constitution and the Republic for which it stood could not be sustained.

Natural Law

Every time I go back and read from John Adams I am struck by his work ethic and diligence. Like all of the Founders he had no staff to serve his bidding. He didn’t delegate the grunt work away to rule only on important matters. He was driven to find out what the important stuff was through the labors of reaching a conclusion that made perfect sense. He reached that point by the tedium of the process. He would study for days on a concept. He would pray and read scripture. He would consult the historical masters.

Cicero was on his short list of desk references. A Roman, Cicero drew attention to the core belief that any lasting institution could exist only on the basis of identifying and adhering to the rules of “right conduct”. Such rules were valid only if they mimicked the genius of the Creator.

It was his contention that once a foundation is identified the only approach to governance was through the laws of the Supreme Creator. He referred to those standards as Natural Law.

The best example of understanding the context of Cicero’s Natural Law is to read the first two paragraphs of the Declaration of Independence. Those words are perhaps the most eloquent creations by Man for the purposes of trying to capture accurately the very doctrine under which human affairs shall be governed. They were attempts to define the ethical principles that can only be understood and perpetuated by reason. They are truly masterful attempts to clarify natural law, but they were also more … they were American words that found form and substance at a very critical juncture in time.

No less than Thomas Paine became convinced that Americans were then united on multiple fronts. The emerging Americans were “industrious, frugal, and honest” as opposed to the “luxury, indolence, amusement, and pleasure” that dominated their English masters.

Interestingly, the Americans had also arrived at that state as a majority being property owners. “Almost every man is a freeholder”, Paine wrote. Too little credence has been paid to that immensely important fact. They had come to rely on the fruits of private property in largely closed system, but … there was more.

The Americans, without the full measure of self governance, had been interacting amongst themselves in a purer state of natural law. With respect through a balance of enterprise predicated in large part on self-reliance, their economy existed on strong ties of mutual existence. They united for reasons in common. They also had what Cicero referred to as “the right reason in common”. They became united against a tyrannical master who had failed to maintain a reciprocal compact of natural law.

They rebelled and … they prevailed.

To the compact

The Constitution was and still is a compact amongst states.

It wasn’t the Senate or the House of Representatives or the Supreme Court that created and ratified the American Constitution. It certainly wasn’t the President, either. It was the victorious free states of the newly and soon to be fully formed union, the United States of America, which ratified and set in motion their conditional agreement of compact based upon clearly delegated rules of authority.

Each state gave their approval on the basis of that finite, defined demarcation.

The Constitution was the guiding document creating and defining a limited federal government. It was James Madison’s words, “I … have always conceived … that those who ratified the Constitution conceived … that this is not an indefinite government, but a limited government, tied down to the specified powers, which explain and define the general terms.”

Today, many of us believe the premise of the aforementioned Michael Swickard that the federal government has become the dominion of expanding powers and the Constitution no longer exists. The ultimate fear of Alexander Hamilton in the #78 Federalist Paper has come to pass. He wrote, “No legislative act, therefore, contrary to the Constitution, can be valid”, and, yet, the Constitution in form and practice has been shredded. The creator’s partnership has been ousted.

“To deny this”, Hamilton continued, “would be to affirm, that the deputy is greater than his principal … that the representatives of the people are superior to the people themselves …” Indeed, independent, free, and sovereign man has long been a symbolic expression rather than the cornerstone of our system.  

Writings such as these and multitudes like them make it abundantly clear the Framers held that the states not only have the authority, but the responsibility to determine when the federal government oversteps its defined boundaries. The 10^th Amendment magnified the issue of states’ rights in 1791.

Nullification

Many worried about the issue of virtuous leaders with enough wisdom to maintain the original precepts of the fundamentals. Thomas Jefferson was one.

In 1799, he wrote the prescription for action to be undertaken against authority creep by the federal government. He penned the following:

“That the several states who formed (the Constitution), 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 the color of that instrument, is the rightful remedy.”

What is nullification?

Nullification is the legal theory that the states have the right to nullify or invalidate any federal law which a state has deemed unconstitutional. Although tried many times, the action has never been upheld. The Supreme Court has rejected the concept. Most of the objections have come from interpretation of the Supremacy Clause of the Constitution, but all Americans should wake up and vigorously defend against that assertion.

The Supreme Court did not even exist before the Constitution was written. It was created by the combined authority of the states in their adoption of the Constitution. No branch of government was party to such a vote. They held no dominion in a concept that preceded their very existence nor were they granted any right to displace the American citizens who formed the pillars of sovereignty within those states. The Supremacy Clause is what it is … the declaration the Constitution is Supreme, not the federal government!

James Madison feared the same outcome. “If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution … dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also may exercise or sanction dangerous powers beyond the grant of the Constitution …” Never was there truer words.

The Remedy

Honest constitutional scholars have come to the conclusion that since the Supreme Court has seized the final authority to determine the constitutionality of a federal act the United States is not a Republic of sovereign States but a monarchy. The sovereign American people and their States have been displaced by a ruling class that in form and function reflect the same tyrannical forces that Thomas Paine identified in the Anglican masters of the colonies.

“Luxury, indolence, amusement, and pleasure” were the credited references.

Again, Jefferson offered a remedy to fight back against the perversion of any suggestion of natural law with his nullification strategy, but unless a few states like Arizona, Utah, Oklahoma, and Texas lead there will not be a concerted state response, either. Most states are in the same state of constitutional corruption the federal government has led us all. 

So, that leaves the other Jefferson strategy, but that requires a buoyant, mortal catalyst … Sam Adams, do you exist?

Stephen L. Wilmeth is a rancher from southern New Mexico. “Tyranny in all forms is still … tyranny.”

THE WESTERNER SEZ:

Read Nullification by Thomas E. Woods.  However, I'm beginning to think the Anti-Federalists had it right. You can read them here.