Derek Sheriff – Nullification: It’s OfficialPage 1 of 5

Nullification: It’s Official

Derek Sheriff

28. Jan, 2010http://www.tenthamendmentcenter.com/2010/01/28/nullification-its-official/ While speaking to a large crowd of over a thousand people on the campus of Arizona StateUniversity last December, Congressman Ron Paul mentioned one thing that might come aboutas the result of the federal government habitually ignoring the Constitution: Nullification.‘Ron Paul and Nullification’ video:http://www.youtube.com/watch?v=1ch_7Vs13E8 About five minutes into the video segment which you’ll find below, he said, “There’s not muchattention paid to the Constitution in Washington. There’s not much attention paid to it by ourexecutive branch of government. And we don’t get much protection from our courts. So onething that might finally happen from this if the people finally feel so frustrated that they can’t getthe results out of Washington — They’re going to start thinking about options. They might startthinking about nullification and a few things like that.” As someone who attended that rally and was doing my best to represent my state’s chapter of The Tenth Amendment Center (http://arizona.tenthamendmentcenter.com/), I know I cheered very loudly and was very pleased when the rest of the crowd applauded enthusiastically.For anyone who is unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president, Thomas Jefferson, when he authored what came to be called theKentucky Resolutions of 1798 (http://tinyurl.com/y8rplal

). The resolutions made the case thatthe federal government is a creature of the states and that states have the authority to judge theconstitutionality of the federal government’s laws and decrees. He also argued that states shouldrefuse to enforce laws which they deemed unconstitutional.James Madison wrote a similar resolution for Virginia that same year (http://tinyurl.com/y8rplal),

in which he asserted that whenever the federal governmentexceeds its constitutional limits and begins to oppress the citizens of a state, that state’slegislature is duty bound to interpose its power to prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.

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These two documents together came to be known as The Virginia and Kentucky Resolutions (orResolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, andthe phrase,

“Principles of ‘98”

(http://en.wikipedia.org/wiki/Principles_of_%2798) becameshorthand for nullification and / or interposition. Over time, “The Principles of ‘98

″

would beinvoked by many other states, many times for a variety of issues (see:http://tinyurl.com/bmxs7u

)

Getting back to Ron Paul’s speech in December at ASU, Congressman Paul qualified hisprediction about the revival of nullification by saying the following:

“But my suspicion is that there will never be official nullification or secession, butif the [federal] government continues to fail, and they can’t deliver anything..checks bounce.. that we will be forced to take care of ourselves. And we will beforced to almost ignore everything they do.”

Less than a week after the speech I attended at ASU, Congressman Paul was interviewed by Mike Church on his radio show (http://www.mikechurch.com/). When Mike asked him whathis thoughts were on nullification, Ron Paul responded by saying:

“I think it’s a great idea. It was never really successful in our history. But I think it’s going to grow in importance. And I think it’s going to grow because thegovernment, the federal government will be seen as inept and ineffective. And Ithink it’ll almost be de facto in the sense that the states will eventually just ignoresome of the mandates.”

Here I would like to pause for a moment and point out that I am not usually in the business of disagreeing with Congressman Ron Paul. I would hardly need one hand to count the number of times that I have actually disagreed with him on any issue of real substance. I am a greatadmirer and supporter of Congressman Paul, who is undoubtedly very supportive of the idea of state nullification, even if he has doubted its efficacy in the past. However, in spite of all this, I would like to make two observations.First, nullification has, in fact, been somewhat successful in the past (See:http://tinyurl.com/y95az5a

) and more recently as well (http://tinyurl.com/yd5v7k4

). Second,as President Obama loves to say, “Let me be clear”: “Official” nullification has ALREADY HAPPENED.Before I explain why “official” nullification has already happened, let me briefly give someexamples of what nullification is NOT.Nullification is not secession or insurrection, but neither is it unconditional or unlimitedsubmission. Nullification is not something that requires any decision, statement or action fromany branch of the federal government. Nullification is not the result of obtaining a favorablecourt ruling. Nullification is not the petitioning of the federal government to start doing or tostop doing anything. Nullification doesn’t depend on any federal law being repealed.Nullification does not require permission from any person or institution outside of one’s ownstate.So just what IS “official” nullification you might be asking?

Derek Sheriff – Nullification: It’s OfficialPage 3 of 5

Nullification begins with a decision made in your state legislature to resist a federal law deemedto be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in areferendum. It may change your state’s statutory law or it might even amend your stateconstitution. It is a refusal on the part of your state government to cooperate with, or enforceany federal law it deems to be unconstitutional.Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. Itcannot be overruled by the Supreme Court. It is the people of a state asserting theirconstitutional rights by acting as a political society in their highest sovereign capacity. It is themoderate, middle way that wisely avoids harsh remedies like secession on the one hand andslavish, unlimited submission on the other. It is the constitutional remedy for unconstitutionalfederal laws. With the exception of a Constitutional amendment, the federal government cannot oppose(except perhaps rhetorically), a state’s decision to nullify an unconstitutional federal law withoutresorting to extra-legal measures. But such measures would more than likely backfire, sincemost Americans still affirm that might does not make right.There is no question as to whether or when “official” nullification will happen: It has ALREADY HAPPENED. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it. According to the Tenth Amendment Center:

“25 states over the past 2 years have passed resolutions and binding lawsdenouncing and refusing to implement the Bush-era law [REAL ID Act]..Whilethe law is still on the books in D.C., its implementation has been “delayed”numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

But that’s not all; another example of “official” nullification has occurred in the form of anunlikely states’ rights ally: Medical marijuana (See:http://tinyurl.com/y98a4zf

)

There was a time when the federal government took the Constitution seriously enough thatCongress did what is required in order to enact a nationwide ban on a substance. Even thoughthe experiment would eventually be seen by most Americans as a mistake and a failure, the 18th Amendment was passed and the era known as “Prohibition” began. Four years later, it wasrepealed. When it came to marijuana prohibition, however, the feds had another trick up their sleeve. Allthree branches of the federal government would agree on a very novel, liberal interpretation of the “commerce clause” which would allow them to regulate virtually any substance, includingmarijuana, even though there’s supposedly no “legal” commerce in the plant. Since that time,the federal government has managed to claim, with a straight face, as it were, that a plant grownin your back yard, never sold, and never leaving your property, is somehow able to be completely banned by the federal government under the interstate “commerce clause.” The only problem with their claim is that the states just aren’t buying it.