There is no position which depends on clearer principles, than that every act of a delegated authority which is contrary to the terms of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
So, the concept/doctrine of nullification is nothing new. Thanks to Jefferson, we simply have a much cooler name,
"Nullification."
The Kentucky and Virginia Resolutions are very important not only for the articulation of Nullification and Interpositions as the rightful remedies to invalidate unconstitutional federal laws, program, policies, executive orders, etc. They also are important because they highlight something very important; they highlight the grave flaw in the Constitution of 1787. The Constitution does not explicitly provide an umpire to settle disputes between the states and the central government. If the Supreme Court is the ultimate arbiter of the Constitution, as Chief Justice John Marshall proclaimed in Marbury v. Madison (1803), and then again, by a unanimous Court (Warren Court), in Cooper v. Aaron (1958), then the caprice of the national government and not the Constitution would determine the supreme law of the land. Clearly, and we have seen it, if the national government is the judge of its own powers, it will construe them broadly and dispose of any hopes for limited government.
This was Jefferson's worse fear. This is why he wanted so badly to put an effective check in place. He wanted to put measures in place and have them used effectively so that going forward the States would know what to do. And the government, understanding what the States would do, would think twice before daring to assume powers not delegated.
It was Jefferson and Madison's position that, pursuant to the compact nature of the Constitution, in the absence of a delegated umpire, the parties to the compact are the ultimate arbiters of the Constitution. Perhaps a constitutional amendment is needed to end the controversy once and for all. In Cooper v. Aaron, the Supreme Court announced that states have no right to nullify acts of the federal government that they do not agree with. It held that states have no independent authority to judge the constitutionality of decisions by the high Court (because the Court is the ultimate interpreter), they are bound by the Court's decisions, and they must enforce them even if they disagree with them. This decision exemplifies why the Supreme Court is incapable of faithfully interpreting the Constitution, according to its plain meaning and intent.
Remember that Jefferson and Madison contemplated a remedy to federal over-reach in 1798 and wrote their series of resolutions in that same year. Jefferson, in particular, was already leery of the federal courts and the Supreme Court in particular and it hadn't even decided Marbury v. Madison yet. (1803). In that case, the Supreme Court assumed broad powers for itself with judicial review and the ultimate voice on the meaning of the Constitution. With that decision, the federal monopoly on government power was complete.
The sad thing is that Jefferson went to his grave under the conviction that the three ruling branches of the national government were acting in combination to strip their colleagues, the States, of all powers reserved by them, and to exercise themselves all functions foreign and domestic. He wrote this in a letter six months before he died. Furthermore, Jefferson never supported states' rights for their own sake. He supported states' rights for the primary reason
"to safeguard the freedom of individuals," which he understood would, without a doubt, suffer in a consolidated nation.
And that's why, in drafting the Kentucky Resolves, Jefferson identified the states as the proper entities of resistance. And that's why his friend James Madison drafted the Virginia Resolves as he did.
You know, we talk about how much we love and cherish our Constitution. How brilliant we believe it to be written and intentioned. We are passionate and rise up to defend it..... good and decent men and women - Americans who care deeply about their country and their republic. Ye there were no men more protective of the Constitution and what it stood for than James Madison (its primary author) and Thomas Jefferson - who wrote the principles upon which it was crafted. That's why I look to these men for advice.
I have written that Nullification is a doctrine whose time perhaps hasn't come. I think it finally has.
William Watkins Jr., a lawyer, wrote:
"For true change to take place, Americans must once again conceive of their history as a struggle to create and maintain real freedom. Part of that reconceptualization would entail making a place for the Kentucky and Virginia resolutions in the pantheon of American charters. The resolutions articulate the fundamental principles of our government in an eloquent yet logical manner; in their import, they rank second only to the Constitution. For Americans who would recreate a limited federal government of enumerated powers - the government created by the Founders - the resolutions can serve as an enduring inspiration."
We shouldn't forget - we can't forget - that the ultimate goal of the Nullification doctrine - is to PREVENT the enforcement of unconstitutional, oppressive laws on citizens. To PREVENT the government of usurping powers from those who they rightfully belong to -- You and me and from the States.
So, if you believe in what I just said and you believe that you have a God-given right to your liberty and that it MUST be protected, then I hope you will believe that Nullification is the Rightful Remedy to restore government to its constitutional boundaries.
References:
Boston Legal, "Trick or Treat" (Episode 51, Season 3)-
http://boston-legal.org/episodes-season3.shtml
Transcript:
http://www.boston legal.org/script/BL03x07.pdf
Cooper v. Aaron, 358 U.S. 1 (1958)
"Secession," North Carolina History Project.
http://www.northcarolinahistory.org/commentary/52/entry
"Secession Acts of the Thirteen States of the Confederacy." http://www.civilwar.org/education/history/primarysources/secessionacts.html?referrer=https://www.google.com/
Telegram Exchange Between NC Governor John Ellis and US Secretary of War Simon Cameron.
http://blogs.lib.unc.edu/civilwar/index.php/2011/04/15/15-april-1861-telegram-exchange-between-n-c-governor-john-ellis-and-u-s-secretary-of-war-simon-cameron/
"Constitutionally Sound: Nullification of the Fugitive Slave Act," Tenth Amendment Center, May 20, 2014. Referenced at:
http://tenthamendmentcenter.com/2014/05/20/constitutionally-sound-nullification-of-the-fugitive-slave-act/
"Nullifying the Fugitive Slave Act," Campaign for Liberty. Referenced at:
http://www.campaignforliberty.org/nullifying-the-fugitive-slave-act
Ableman v. Booth and United States v. Booth.
http://law.jrank.org/pages/25237/Ableman-v-Booth-United-States-v-Booth-Joshua-Glover-Saved-from-Slave-Catchers.html
Thomas E. Eddlem,
"Ableman v. Booth: How State Nullification Can Resist Tyrannical Government," New American, May 10, 2013. Referenced at:
http://www.thenewamerican.com/culture/history/item/15355-ableman-v-booth-how-state-nullification-can-defy-tyrannical-government
Virginia and Kentucky Resolutions -
http://www.u-s-history.com/pages/h466.html
