This article is about nullification of Federal actions using a means of nullification that is derived from understanding the fundamental relationships between the Federal Government, the State Governments, the people of the states, and the Constitution. This proposed form of nullification will involve the people of the states and will not be subject to review or challenge by any Federal agency, department or court including the Supreme Court.
There currently are no means proposed by the people or the state governments to nullify Federal laws or actions that do not require agreement from the Supreme Court that the law in question is unconstitutional. Attempts to nullify Federal laws by state legislatures by declaring a law unconstitutional have always failed because the Supreme Court decided over 200 years ago that it had the authority to decide if Federal laws were constitutional and if so decided then state legislatures were prohibited from nullifying them. This power of the court called judicial review is hard to argue against because although it is not explicitly granted to the courts in the Constitution it is mentioned by Alexander Hamilton in Federalist No. 78 where he states “The interpretation of the laws is the proper and peculiar province of the courts”.
Relying on the tenth amendment to the Constitution is gaining popularity as a means for state legislatures to nullify Federal laws. The amendment states that powers not delegated to the United States by the Constitution are reserved to the States respectively, or to the people. But this path suffers the same problem as direct nullification since the Supreme Court will make the judgment about whether a particular power has been delegated to the United States and the individual states will have to abide by that decision.
However as mentioned above there is a means of nullification that is derived from understanding the fundamental relationships between the Federal Government, the State Governments, the people of the states, and the Constitution. The thoughts, opinions, and the proposal to follow are based on Madison’s views of these relationships written in the Report on the Virginia Resolutions of 1800 that gives the rationale for the Virginia Resolutions. For the purposes of this article the arguments about whether the Virginia Resolutions say a state can nullify a Federal Law or not will not be re-hashed but instead the thoughts behind Madison’s words will be examined and will show how they lead to a means of nullification not subject to Supreme Court overview. If you are like me, Madison’s writings in this Report may forever change your views of these relationships and lead you to an understanding of why nullification is not only a right but an obligation of the people in times dangerous to their liberty.
To understand the thoughts behind Madison’s words begin with understanding the fundamental relationships with the Constitution. First note that the Constitution’s first words are “WE THE PEOPLE ….. do ordain and establish this Constitution for the United States of America”. Then note how the document was ratified. Article VII of the Constitution states “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Conventions were called in each state and the people voted to support or not support ratification of the Constitution. State legislatures were not involved other than to call for the conventions. So the Constitution is a compact, a bargain, or an agreement in the form of a treaty between the people of the various states and only between the people. The apparent contradiction in Article VII by the use of the word States is because there was no distinction between the people of a state and the state itself. If one referred to say the State of Virginia they meant the people of Virginia or the geographical location. Madison makes this clear in the Report of 1800. If they wanted to speak of the state legislature they would include the word legislature.
So the people of each state were the parties that established the Constitution which established the Federal Government by creating its structure and by granting various powers necessary to execute the will of the people. The Federal Government and all its branches did not exist at the time the people of the various states created the compact we call the Constitution. It came into existence because of this compact. This is the reason that the people of the states have the ultimate sovereignty and authority in our country. State governments were left unchanged except in areas where powers necessarily resided in the federal sphere like post offices. Also, there can be no other source of federal power than that granted by the people in the Constitution. Madison’s words on this subject are “If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid.”
And now the key point: if the people of each state are the parties to the compact that created the Federal Government and the only parties then they are the ones and the only ones that have the ultimate authority to judge whether the Federal Government is acting constitutionally. In Madison’s words “The states (read peoples of the various states), then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated.” He goes on to say it is more than an authority, it is a requirement if a usurpation of power is dangerous to the Constitution. “If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power.” In other words not only do the people have a right to “arrest the progress of the evil” but if they do not then there will be no way to end the usurped power.
What does this mean and how can it be acted upon? It means Lincoln had it right, we have “a Government of the people, by the people, and for the people”. The people of the various states are the ultimate sovereign. They decide constitutionality and there is no higher authority on this earth. Unfortunately this eliminates state legislatures from that role and many will probably object to that conclusion. But it offers an alternate path to accomplish the same objective.
Before discussing what the people can do we must consider the role of the judiciary in the Constitution. It is a fact that the people of the states have the ultimate authority to judge constitutionality but that is reserved in Madison’s view to only those acts of extreme danger to our liberties. The compact gives the Supreme Court of the United States a similar but lesser authority to also make this judgment in all cases not rising to a level that would require the people to act. The people must retain the ultimate authority because in Madison’s words “the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.” Those words which need no elaboration should be emblazoned on the face of the Supreme Court building as a reminder to the court that we are watching and we have not given up our right to overrule your decisions.
It is clear now that we the people have the authority to declare acts of the Federal Government unconstitutional but Madison gives us little guidance on how to take advantage of this power “to arrest the progress of this evil” other than through interposition which he did not define and his thought that a single party can not act alone but only in a collective action. So we will chart our own path because we can. If the people of the states are the parties and the only parties that created the compact then these parties are free to decide how to correct any usurpation of the compact by the Federal Government. The people are not free to change the compact but they are free to develop means to enforce its provisions if the means of enforcement within the Constitution fail to satisfy the parties that established the Constitution. Following Madison’s view, this decision to correct the failure must be made by a majority of the people of the various states and not by those of a single state. This does not mean a majority of the people of the entire United States it means a majority of the 50 states in which the citizens of the states are free to act. The citizens of each state are considered as one of the parties and a total of 26 parties must agree on a course of action.
How might this be done? Since the Supreme Court has ruled that state legislatures do not have the authority to nullify Federal laws, the course of action should not involve state legislatures. We should hold conventions for deciding action in the same manner as our forefathers held conventions to ratify the Constitution. All states have procedures for holding conventions to ratify amendments to the Constitution and these procedures don’t require approval by the Supreme Court. So to avoid any potential legal battle we should adopt the convention process because it is necessarily separate and different from the state legislatures. Governors of states interested in participating in the process would begin by calling for a convention that through means different in each state results in an up or down vote on the course of action. One example of how a convention works is as follows. In Vermont with 14 counties 28 candidates to be delegates to the convention are chosen by the governor, and house and senate leaders with one candidate from each county announcing they are for the issue under consideration and one from each county against. Ballots are plainly marked and the people vote for candidates that agree with them on the issue. The winners are the delegates to the convention and they vote for or against the issue based on their announced position with a majority of votes required to approve of or defeat the issue.
If for example the course of action was to declare ObamaCare unconstitutional and therefore invalid there would have to be 26 state conventions agreeing with that proposal. This is a high hurdle but in Madison’s view only when “dangerous powers beyond the grant of the Constitution” are being exercised by the Federal Government should action be taken by the people. Since there are 26 states suing the Federal Government over ObamaCare such action might become a reality under this proposal and if so without question the ultimate authority in our country, we the people, would have spoken and our words would be unchallengeable by any branch of the Federal or State Governments.
It should be stressed that this process need not be described in the Constitution to be valid. It would be a process adopted by the people that established the Constitution and are its guardians for as long as it is in force. We the people now with this responsibility can decide how to establish our guardianship just as our forefathers with responsibility then decided how to establish a new Federal Government by means of a Constitution.
To simplify the constitutional issues consider the following example with the same issues; the correlations should be obvious. Suppose multiple parties pooled their money and formed a compact to let a person not part of the compact invest the total under a set of rules. If this person started violating the rules it would become necessary to develop methods of enforcing the rules if the procedures in the original compact were not working. It seems clear that those participating in the original compact or their heirs should establish these new enforcement methods for they developed and best understand the original compact. Since the original compact is not being changed but only being enforced not all participants in the original compact need to participate in developing or enforcing the new enforcement methods. But to avoid having multiple enforcement methods and multiple determinations of whether violations occurred, a majority of participants should be required to determine that the rules were in fact being violated and what enforcement methods to use.
That described above using state conventions is the proposal, what is left is assurance that the thoughts used to develop the proposal are consistent with the thoughts behind the formation of the Constitution and not some afterthoughts during a moment of crisis. A few quotes from The Federalist Papers will be used to answer this question in the affirmative.
- Federalist #16 by Hamilton: in the next to last paragraph uses the phrase the people “as the natural guardians of the Constitution”.
- Federalist #49 by Madison: third paragraph. “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power,…….and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”
- Federalist #53 by Madison: second paragraph. “a Constitution established by the people and unalterable by the government.”
- Federalist #78 by Hamilton: eleventh paragraph. “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.”