The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 17 No. 7 • August 2014


STATE NULLIFICATION OF UNCONSTITUTIONAL FEDERAL LAW
How to Resist Federal Tyranny in the 21st Century

A Book Review

This book, written by Thomas E. Woods, Jr., Senior Fellow at the Ludwig von Mises Institute (Regnery Publishing, 2010) is a very good introduction to the subject of nullification, a mechanism whereby unconstitutional federal laws are voided by a state within its borders by simply refusing to comply with or enforce them. A contemporary ruling on this issue is New York v. United States,A decided June 19, 1992, in which the U.S. Supreme Court found that the federal government cannot commandeer the resources or personnel of a state to enforce any federal law within its borders.

Another more recent ruling from the U.S. Supreme Court is Printz v. United States, decided June 27, 1997,B in which the court ruled that states and county sheriffs could not be required to perform Brady checks on firearms purchases to enforce Federal law.

Though these decisions do not rule that a state can actually nullify a federal law, they clearly uphold the right of a state to withhold any and all of its resources from the enforcement of a federal law within its borders.A,B As the court put it in New York v. United States (pg. 188): “States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. … The Constitution instead ‘leaves to the several States a residuary and inviolable sovereignty.’ The Federalist No. 39, p. 245 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.”

“Whatever the outer limit of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.”A

“We held in New York [v. United States] that Congress can not 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.”B

“… the Federal Government’s authority under the Commerce Clause, which merely allocates to Congress the power ‘to regulate Commerce … among the several States,’ does not extend to the regulation of wholly intrastate point-of-sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations.” (Thomas, J., concurring, Printz v. United States)

Lest anybody believe that this would not be a severe hindrance to the enforcement of federal law, remember that medical marijuana is still illegal at the federal level, but is legal at the state level in 18 states (as of Dec. 12, 2012), and there is indeed legal state commerce in medical marijuana going on in defiance of the federals.1 “State exemptions remain enforceable …” and “… are not merely symbolic gestures.”1 “… the federal government lacks the resources needed to enforce its own ban … Only 1 percent of the roughly 800,000 marijuana cases generated every year are handled by federal authorities.”1

“Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: … it is up to the states, the parties to the federal compact, to declare it so [unconstitutional] and thus refuse to enforce it.” (pg. 3)

“The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow — regardless of elections, the separation of powers, and other much touted limits on government power.” Indeed, Jefferson warned William Branch Giles that this was already happening in 1825: “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”

The Failure of Representative Government

A key problem in a representative government is when a country becomes so large that those at the top become remote from popular control and oversight, so that the government can routinely act in open defiance of public opinion. The book notes that in 1920 (when the population of the U.S. was 90,000,000), the size of the House of Representatives was capped at 435 members. “By 2010 the population was nearly 309 million. That’s one representative per 710,345 people. Had this ratio been observed in 1790, there would have been about four people in the House of Representatives. Were the old ratio observed today, there would be 10,300 members in the House.” What this means is that you, as an individual, are virtually powerless to affect the actions of the federal government through the mechanism of “representation” in the Congress.

There can be no surprise, then, that what passes for rules and regulations these days is totally out of control (follows no lawful process) and that a Constitutional rule of law is perilously close to being no longer in existence. A good example of this is that last year some 72 bills were passed by the Congress and signed into law by the President, while 3,659 regulations were issued (as “regulations”) by regulatory agencies,3 showing how the U.S. has become an administrative state in which Constitutional protections are exceedingly weakened.

These regulations have the force of law and take effect by mere publication in the Federal Register. Article I Section 1 of the U.S. Constitution vests all legislative power in Congress and does NOT authorize its delegation to an Executive Branch administrative agency. The “laws” derived from administrative agencies are NOT voted into law by the House and Senate. Moreover, your Constitutional rights have been severely weakened in relation to administrative law. For example, you have no right to a jury trial, as provided for in the Sixth Amendment, when you are accused of violating an administrative rule, even when you face a year in prison and/or large penalties. Moreover, courts routinely defer to the regulatory agencies’ claimed limits of their own powers, which has resulted in — surprise, surprise — dramatic agency expansion of their jurisdiction far beyond Constitutional limits by self-proclamation with little or no oversight by Congress or the Courts.

We are aware (and so is the book’s author) that nullification is hardly a perfect solution. Any state might have a different interpretation of the Constitution from any other and act accordingly. One has to compare the risks of state nullification to what we have now, which is dangerously out of control federal government self-empowerment. As Thomas Jefferson noted, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” (pg. 19) Of course, Jefferson had a very expansive view of liberty, which may not be shared by a large number of other people, some of whom may prefer the inconveniences of too little liberty. That is the basis of the war of all against all that is currently raging in America and destabilizing civil society.

The Understanding of the States Forming the Federal Union Was That It Was a Federal Government of Limited Powers

What Would Today Be Considered Laughable — That the Federal Government Is Limited to Its Delegated Powers — Was Taken Seriously by the Founding Generation

The Kentucky Resolutions of 1798, approved by the Kentucky House and Senate in November 1798, included the following:

“1. Resolved. That the several states composing the United States of America are not united on the principle of unlimited submission to their general government, but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government, and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers …”

“2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the law of nations, and no other crimes, whatsoever, and it being true, as a general principle, and one of the amendments to the Constitution having also declared, 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,’ — therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled ‘An Act in Addition to the Act entitled “An Act for the Punishment of Certain Crimes Against the United States” as also the act passed by them on the 27th day of June, 1798, “An Act to Punish Frauds Committed on the Bank of the United States” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish, such other crimes is reserved, and of right pertains, solely and exclusively, to the respective states, each within its own territory.”

“4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states … the act of the Congress of the United States, passed on the 22d day of July, 1798, entitled ‘An Act Concerning Aliens’ [Alien and Sedition Act], which assumes powers over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.”

“6. Resolved, … transferring the power of judging any person who is under the protection of the law, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides, that ‘the judicial power of the United States shall be vested in the courts, the judges of which shall hold their offices during good behavior,’ and that the said act is void for that reason also …”

“9. Resolved, lastly, … that if the acts before specified should stand, these conclusions would flow from them — that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction … and the barriers of the Constitution thus swept from us all …”

All That Was Foreseen in Resolution #9 Has Come to Pass

It is remarkable, indeed, how all of what was described in resolution #9 has come to pass and is now accepted by most Americans as legitimate powers of the federal government, with “the barriers of the Constitution thus swept from us all.”

Example of Actual State Nullification Occurring in Response to Slavery

On pp. 261 – 263, the book reports the Joint Resolution of the legislature of Wisconsin March 19, 1859, which contained the following:

“And whereas, such assumption of power and authority by the supreme court of the United States, to become the final arbiter of the liberty of the citizen, and to override and nullify the judgments of the state courts’ declaration thereof, is in direct conflict with that provision of the constitution of the United States which secures to the people the benefits of the writ of habeus corpus:

“…

“Therefore, Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself, but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

“…

“… that the several States which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions, and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.”

State Nullification of the Fugitive Slave Act of 1850

Shall a man be dragged back to Slavery from our Free Soil, without an open trial of his right to Liberty?
— Sherman Booth, protesting the seizure of
a free black man residing in Wisconsin to
return him to his “master” in St. Louis

Another example of state nullification took place in Wisconsin. During a prolonged legal battle between the state of Wisconsin and the federal government over the attempt of the federals to seize a black man to return him to slavery, the Wisconsin Supreme Court ruled that the Fugitive Slave Act was unconstitutional. The U.S. Supreme Court unanimously overturned the Wisconsin decision. “When the Wisconsin Supreme Court received the request to file the U.S. Supreme Court’s ruling reversing the state court’s decisions and dismissals in the Booth case, it refused. To this day, those mandates have not been filed, and the U.S. Supreme Court’s decision has never been officially recognized by the state of Wisconsin.”2

References

A. New York v. United States, 505 U.S. 144, 188 (1992) (holding that Congress may not order state legislature to enact Federal laws).
B. Printz v. United States, 521 U.S. 898 (1997).
1. Robert A. Mikos, Policy Analysis No. 714: “On the limits of federal supremacy: when states relax (or abandon) marijuana bans,” CATO Institute, Dec. 12, 2012.
2. It is quite a story and well worth reading, if you are interested in state nullification of federal laws. See “Glover, Booth and Paine: Over 150 years of nullification” at the Tenth Amendment Center:
[http://tenthamendmentcenter.com/2014/04/13/glover-booth-and-paine-over-150-years-of-nullification/ ].
3. Wayne Crews, author of the annual report on federal regulation, “Ten Thousand Commandments” (Competitive Enterprise Institute) in the Spring 2014 CEI PLANET (CEI.org).

FREE Subscription

  • You're just getting started! We have published thousands of scientific health articles. Stay updated and maintain your health.

    It's free to your e-mail inbox and you can unsubscribe at any time.
    Loading Indicator