by Diane Rufino, January 28, 2022
Introduction: “Trick or Treat” (Episode 51, Season 3, BOSTON LEGAL) –
Jerry Espenson, friend of Alan Shore and attorney at Boston Legal, is on trial for perjury.
In Alan Shore’s office, he is sitting behind his desk while Jerry is pacing the floor.
Alan Shore: Perjury?
Jerry Espenson: I was on a jury over the summer, a Federal capital case. In order to be on such a jury you must declare in your questionnaire that you’re not again the death penalty. We found the man guilty and imposed a life sentence! Weeks later I’m doing an interview in furtherance of my new firm and somehow the issue of the death penalty comes up. I said that I’ve always been categorically opposed! And the prosecutor from the capital case must have read it and he had me arrested for committing perjury against the Federal Court! And now I’m about to go on trial!
Alan Shore: Why did you lie about your views on capital punishment?
Jerry Espenson: Because it’s wrong.
Alan Shore: Okay, it’s wrong. So why lie?
Jerry Espenson: It’s not just the death penalty. It’s the issue that only pro-death people should get to sit on death cases! It’s stacking the deck, Alan! It’s wrong! That’s why I lied! To unstack a stacked deck!
Alan Shore: And now you’re being charged with perjury.
Jerry Espenson: And the horrible prosecutor man wants me to serve three years.
At Federal Court, all parties present. Jerry is on the stand, Alan is directing him.
Jerry Espenson: More than half of the world’s countries have outlawed capital punishment. Virtually all of the industrialized democracies have eliminated it. The five countries that execute the most people are in order: China, Iran, Saudi Arabia, the United States and Pakistan. Is that the company we want to keep?
Alan Shore: So. To be clear. You are completely opposed to the death penalty.
Jerry Espenson: I am.
Alan Shore: And, yet, when you were given the juror questionnaire to fill out, you said you weren’t?
Jerry Espenson: Yes. Alan Shore: Why? Jerry?
Jerry Espenson: Because I know how the system works. If you admit you oppose capital punishment, they keep you off the jury. Having only pro-death-penalty people on the jury is completely unfair to the defendant. Which is why I committed an act of civil disobedience. To call attention to the gross unfairness of the jury selection process!!
At the courthouse, in a witness room, Alan and Jerry are sitting in silence.
Alan Shore: Jerry, I know you know that perjury in Federal Court is serious. What I’m not sure you appreciate, this case you were a juror on, it was of enormous importance to the government. It was an opportunity to bring the death penalty to a State that doesn’t have it. And as far as they’re concerned you ruined some very big plans.
Jerry Espenson: This sounds like a preamble to a very bad prognosis.
Alan Shore: I’ve talked to Denny, Shirley, Paul Lewiston, I’ve had a lot of people trying to pull strings behind the scenes. This case is not going away. But I expect that… you most likely are. We have no defense, Jerry. You flat-out committed perjury.
Jerry starts to cry. He gets emotional.
Jerry Expenson: Can I say goodbye to my mother?
Alan Shore: You’re not going away this minute. I’ll give the closing and… I guess… beg the jury to ignore the law. And… we’ll see.
At Federal Court, all parties present. Carl Newell (Assistant US Attorney) is up and giving his closing.
Ass USA Carl Newell: If you’re against the death penalty, you can call your congressman, protest in the street, start a blog, publish a book, there are countless ways to get your point across. Committing perjury isn’t one of them. Obstructing justice isn’t one of them. Mr Espenson lied. He defrauded the court; his actions were an insult to that court as well as everyone who believes in our system of justice. You! Are now part of that system. Do your duty. Send Mr Espenson to jail.
Alan rises.
Alan Shore: Let’s forget all about capital punishment for a minute, and look at this another way. Say, a small town is having a community meeting to vote on whether or not to build a big incinerator. But before the selectmen let you into the meeting, they ask you how you feel about incinerators, and if you’re opposed to them, you don’t get to go to the meeting. Does that seem fair to any of you? Don’t we want all sides represented at a community meeting? Jury selection is supposed to work the same way. All of you, in theory, should represent a cross-section of the community. Well, here we are, in Massachusetts, a state with no death penalty. One would assume, therefore, that the majority of the community is opposed to capital punishment. But anyone who holds that view cannot be a juror in a federal death penalty case. This isn’t just weeding out people with idiosyncratic opinions; this is weeding out the majority. It’s strategic. We all know, intuitively, if you start talking about punishment before a trial even begins, you’re putting the idea of guilt in the forefront of everyone’s mind. Yet, presumption of innocence is the foundation of our whole justice system. Without that, we’re no better than totalitarian states who imprison and execute people on the whim of an all-powerful leader. Jerry Espenson is my friend. I care for him… dearly. And I know him to be fundamentally, a law-abiding man, who simply saw an injustice and tried to do something about it. If he’s guilty of anything, it’s of appealing to his sense of fairness. Now, I suppose, he’s appealing to yours.
The case at issue: The government was trying to apply procedures in a criminal trial in a way to skew the jury’s decision to the decision it wanted. Jerry Espenson was prosecuted for lying about his views on the death penalty because he didn’t believe the government should stack jurors to think exactly like it thinks. It was an act of civil disobedience.
Attorney Alan Shore (James Spader) asks the jury to ignore the law because it offends fundamental notions of fairness.
And that, in a nutshell is what Nullification is all about.
Nullification – What is It?
“Nullification” is the doctrine, articulated best by Thomas Jefferson and James Madison (our two greatest Founding Fathers) which essentially holds that that the federal government is a creature of the states (and NOT a party to the Constitution’s social compact), and that states have the authority to judge the constitutionality of the federal government’s laws, policies, and decrees. When it concludes that an act of the federal government exceeds the authority given to it by the Constitution, the act is said to be “null and void and therefore, unenforceable.” The state then has the right and the duty to refuse to enforce laws which they deem unconstitutional.
So, when you hear that a state plans to ‘nullify’ a particular federal law, the state, in effect, is proclaiming that the law in question is void and inoperative, or ‘non-enforceable,’ within the boundaries of that state; or, in other words, not a law that the state recognizes. The rationale for Nullification is that the Constitution sets precise boundaries and limitations on the ability of government to intrude in people’s lives and when the government exceeds those boundaries and limitations, it would be an act of tyranny to allow such unconstitutional laws and policies (and even federal court rulings) to be enforced on a free people.
Nullification is the doctrine that is based on the theory that the Union is the result of a voluntary compact of sovereign States and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Consequently, the federal government, a “creature” of that compact (an agent of the States), has no right to exercise powers not specifically assigned to it by the U.S. Constitution.
Nullification is a remedy based on the Separation of Powers doctrine stated and defined in the Tenth Amendment (powers reserved to the States versus those specifically delegated to the federal government). It was articulated by our most influential Founders – Thomas Jefferson and James Madison…. Authors of our two most critical founding documents – the Declaration of Independence and the US Constitution. Nullification is the foundational principle – the legal theory – that states that a state (as a sovereign) has the right to nullify or invalidate any federal law that exceeds the scope of authority delegated by the States to the federal government and defined by the Constitution. But here’s the most important part – not only does the state have the right to declare a federal law or policy or court decision to be unconstitutional; it also has a DUTY to prevent its enforcement on its people. Otherwise, it’s tyranny; it’s government oppression!!
Nullification is a natural law doctrine and in our system, it is specifically based on our federal system – a dual sovereign system… The states versus the federal government. Sovereign against sovereign. (or to invoke Greek mythology – Titan against Titan). It is a doctrine that is premised – brilliantly premised – on the idea that each sovereign will jealously guard its powers and responsibilities and prevent the other from intruding on them. It’s like two domineering, hot-headed Italians who are married. Neither wants to concede the other has the upper hand.
Nullification comes from the word “nullify” (verb) or “nullity” (noun; meaning to be “null and void”). It means the act of declaring or rendering “null and void.” A law made without proper authority is null and void from the very start because it lacks legal foundation. It lacks legal authority. And as such, it is to be without legal force. It is unenforceable – as a matter of law.
Nullification has been the subject of much controversy throughout our history. Many are not comfortable talking about it and many simply don’t fully understand the doctrine. This is because powerful groups have attached such negative stigma to it. This is also because to support Nullification means you must necessary take a position against the federal government. And we all know that is never popular and often comes at a cost.
I’ve stood in the sidelines for years talking and writing about Nullification and I’ve seen its popularity grow. Years ago I gave a presentation entitled: “Nullification – A Doctrine Whose Time Has Not Yet Come.” And I believed it at the time. Now I believe its time may finally be here. It will all depend on whether the States will rise to their DUTY and have the balls to re-assert the Tenth Amendment (re-assert their sovereignty) to take on the federal government and protect the people of the united States from federal tyranny, and in the long run, to push the federal government back within the bounds of the US Constitution.
In the meantime, there are still those who strongly oppose Nullification. Most oppose it because of a lack of information or because a misunderstanding of the Constitution and founding principles.
Nullification – Its Early History
Thomas Jefferson wondered how the country would respond in the case its government passed a law that was clearly unconstitutional. As Secretary of State under our first president, George Washington, he already witnessed the wheels of government try to enlarge provisions in the Constitution to give the administration unchecked powers to tax and spend. Washington would establish the first National Bank. Jefferson knew the trend would continue. And it did. Our second president, John Adams, signed the Alien & Sedition Acts into law, which were laws addressing the Quasi War (undeclared) with France at the time. The French Revolution just killed off the monarch and his family and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants and Americans were split in their support of the old French system or the new republic. Although the Alien Acts (3 of them) were offensive, it was the Sedition Act that was most glaringly so. The Sedition Act made it a crime (fines and jail sentences) should any person “write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States….” The Constitutional red flags went up at once. The immediate violations jumped out to men like Jefferson and Madison, and many others. While the Alien Acts violated the 10th Amendment and the Due Process clause of the 5th Amendment, the Sedition Act was a blatant violation of the 1st Amendment and its guarantee of Free Speech (most importantly, political speech!) John Adams, a Federalist, saw nothing wrong with any of the laws. Neither did his Federalist co-members of government or his Federalist judges. Thomas Jefferson, the Vice President at the time (since he got the second highest votes in the election of 1796) wasn’t a Federalist. He was a Republican-Democrat (a party he founded). [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!]. The Checks and Balances didn’t work. Political power was more important than the rights the government was created to protect!
And so, convictions quickly followed. Journalists, publishers, and even congressmen were fined and jailed. Not a single person targeted was a Federalist. The only ones targeted were Republicans. The men who wrote our founding documents – Jefferson and Madison – began a series of correspondences to discuss what should be done to prevent such unconstitutional laws from being enforced on people who had a rightful expectation of exercising the liberties promised in the Declaration and in the Bill of Rights. (And of course they had to be very careful lest they be convicted under the law!) Jefferson saw that there are 3 possible remedies when a government tries to enforce unconstitutional laws.. (1) Seek an opinion from the Judiciary; (2) Secession; or (3) Nullification. Jefferson advised against the first two remedies. He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the President were not required to abide by its ruling. Furthermore, the courts were all Federalists at the time and were part of the problem!. Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but said it was far too extreme and every effort should be made to keep the union together in a workable fashion. The third option, he said, was “the rightful remedy.” Nullification, he said, was the remedy inherent in the states’ ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union. Madison agreed.
Nullification is the doctrine which states that any law that is made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials – federal and state. When the government passes a law pursuant to its powers, it is supreme and binding. Every level of enforcement recognizes the law. States are obligated to uphold it and help enforce it. An example are the federal immigration laws. When the government passes a law that it has no authority to make – such as the Sedition Act, which offends the 1st Amendment which is a strict prohibition on the government with respect to individual speech (political speech) – then in terms of legality, the law is null and void. For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws). Since the law is null and void, no enforcement agency should force the law on the people. Government will never admit its law is unconstitutional or unenforceable and so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced. The states are the rightful parties to stand up for the people against a tyrannical act of government. When the government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People (see the 10th and the 9th Amendments). Every party must always jealously guard its sphere of government; it’s bundle of rights. States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.
Well, immediately, Jefferson and Madison got out their pens and drafted the Kentucky Resolutions of 1798 and of 1799 (Jefferson, for the Kentucky state legislature) and the Virginia Resolutions of 1798 (Madison, for the Virginia state legislature). Both states passed them, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states. The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.
In the Kentucky Resolutions of 1798, Jefferson wrote:
- 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 a 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 part, its co-States forming, as to itself, the other party: that the 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; but that, as in all other cases of compact among powers 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.
In the Kentucky Resolutions of 1799, he wrote:
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, 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 colour of that instrument, is the rightful remedy……
In the Virginia Resolutions of 1798, James Madison wrote:
RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
Nullification is a founding principle. And it will continue to be such. Just because certain people claim it is not a legitimate principle and not a legitimate remedy does NOT make it so. They simply wish it weren’t the “rightful remedy.”
The Legal & Doctrinal Basis for Nullification
The doctrine of Nullification is extra-constitutional, which means since it is not addressed in the Constitution, it is a supreme fundamental principle; it supersedes the Constitution. Its basis is found in various laws and legal foundations:
- Federalism
- Basic legal theory
- The Tenth Amendment
- The Declaration of Independence
- The Constitution – and the Supremacy Clause (Article VI)
- Compact Theory
- Agency Theory
- The Kentucky Resolutions and the Virginia Resolutions
1. Federalism. Federalism is simply the government structure that pits Sovereign against sovereign; rather, it divides power between the sovereign States and the sovereign federal government (each are sovereign in their respective spheres of authority). The government’s powers are expressly delegated in the US Constitution. All other areas of authority are reserved to the States. Federalist No, 45 goes into detail about the general character of this separation of sovereign power. The belief was that each sovereign would forever jealously guard its sphere of authority. Federalism is the last and most critical in our government’s system and series of Checks and Balances.
In Federalist No. 45, James Madison explained in clear terms the intended division of power:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”
2. Basic Legal Theory: A body can only make laws where there is proper legal authority to make such laws. If there is no legal authority, the law is null and void from the start. This is Natural Law. Governing power arises from somewhere. The Declaration tells us that it derives from the Individual, endowed from God. When individuals organize into societies, they delegate some of their power to a common government, for the benefit of all living in that society.
Laws are enforceable when they are passed by an authorized legislature and signed by an executive. (They must be vetted by the checks and balances system). Furthermore, the legislature must be vested with the proper jurisdiction (authority) to make the particular law (That is, it must be able to legislate in the particular area in the first place). Authority is granted by a constitution or other governing document, stating exactly what the governing body can do.
QUESTION: Can the school system get permission from my neighbor to have my child treated by a doctor? Can the state of Virginia make a law lowering the speed limit on NC highways?
I’m the mother of 4 children. I have the legal right to determine and direct the upbringing, education, and care of my children. When my son has a form sent home from school asking for permission to go on a trip that might expose him to harm, it is I who has the legal authority to give that permission. Not the school, not the principal, not a neighbor. The reason I can give permission and the reason it is understood as valid is because I have the legal authority to make the decision on behalf of my son. If someone else gives permission or signs the form… You know what happens. The school would not honor it. Legally, it cannot honor it. [This is nullification. Any act of a governing body or individual outside delegated authority is null from the start].
A policeman can’t make laws about who should be detained or arrested or have property seized. He can only execute and enforce laws that have been approved by the legislature – a law-making body, vested with law-making powers. If that policemen should try to make law, that law would be unenforceable on citizens. [Again, this is nullification. A law without a legal basis is void and unenforceable].
3. The Tenth Amendment: The Tenth Amendment reads: “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.”
- It expresses the principle of federalism, which strictly supports the entire plan of the original Constitution, by stating that the federal government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the people.
- In insisting this amendment be added, the States intended it as a reaffirmation of the nature of the federal system of freedom
THE DECLARATION OF INDEPENDENCE: The Declaration of Independence reads, in the second paragraph:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Notice that the Declaration of Independence talks about Individual Liberty; Individual Rights….. Rights that are supreme over any government. They transcend government. The Declaration explains why Men are free and the How they will remain free in America. Because government’s sole purpose is to this end. Governments are instituted for this goal. You will notice that Individual Liberty is protected; it must be preserved. The two highlighted sections emphasize that there is no right for government to be preserved. In fact, it should be altered and changed, as the people notice their liberties weakened. Nullification is based on the notion that when government oversteps its powers, it necessarily usurps them from another rightful source. The Declaration talks about the necessity of government remaining subservient to the liberty of the people.
4. The US Constitution: The US Constitution is one of limited and express powers transferred (temporarily) from the States to the federal government.
(i) The government is a “creature” of the States; it is meant to serve the States
(ii) Its authorized powers are listed clearly in Article I thru Article III
(iii) Again, see Federalist No. 45 (James Madison) for the powers intended for the federal government and those that were to remain reserved to the States
(iv) The States, when they deem it necessary, can re-assume those powers.
Constitutions are important because they set boundaries. Reliable boundaries. Most importantly, they set boundaries on government. That’s what they are supposed to do. Constitutions are critical because they protect certain rights and freedoms that people can take comfort and protection in. Thomas Jefferson explained: “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”
You’ll notice that Jefferson defined or explained Nullification. As mentioned earlier, Jefferson’s definition references basic legal theory. Again, government needs a source of authority in order to make laws and enforce them. If it doesn’t have authority, then the laws have no legitimate basis and are nullities. In this statement,
Jefferson was talking about a magical line — a boundary. The government must not transcend this boundary for to do so would be an infraction of the rights of the People (either to govern themselves or to be governed by their State which can address their issues and concerns most directly and favorably). Jefferson was explaining that this is precisely what a constitution does – provides an exact boundary for government so that it remains at a fixed distance in peoples’ lives.
5. The Supremacy Clause: Article VI Section 2 of the US Constitution is known as the Supremacy Clause. It reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
The key phrase, of course, is “which shall be made in pursuance thereof…”
The argument that the federal government can do anything it wants under the Supremacy Clause is a big pile of bullshit but it’s one of the biggest arguments of the anti-nullifiers. But, by its very language, the Supremacy Clause supports Nullification. When the government acts outside the Constitution, its laws and actions are not supreme and therefore the States have the right not to recognize them. Only laws made “in pursuance” of the US Constitution are to be considered supreme.
6. Compact Theory: The Constitution implicates Compact Theory, or Social Compact Theory. A Compact is an agreement among members to unite for a common goal. According to our Founding Fathers and Ratifying Conventions viewed the Constitution as a compact. They viewed it as a deliberate and voluntary act by the States (the members) to create a government for their common good. The government was to serve them. The States, as a result, hold the higher authority. As such, they – as the parties to the compact – have the right to say when the Constitution has been misinterpreted and/or exceeded
The government, as merely a “creature” and not a signer or member, has no authority to alter or change the meaning of any the terms of the compact
The meaning and intent of the Constitution comes from the understanding of the signing parties (States). Consequently, the State Ratifying Conventions are most valuable. (Supreme Court rarely cites them or the Federalist Papers)
Compacts have the character of a contract. They are considered contracts because of the manner in which they are created. In the case of the Constitution, there was an offer (an offer to join together with fellow states for mutual benefit) and an option to accept or not. The States accepted, in their conventions, after considerable debate and discussion. The significance of each Convention is how that state understood the meaning and intent of the Constitution. In contract law, it is the understanding of the parties at the time of the making of the agreement that governs its meaning and execution. The Compact – the Constitution – enabled the states – in their sovereign capacity – to act jointly and collectively, each suffering a burden (a surrender of some of its sovereign power) in order to enjoy a benefit (regular commerce and collective safety and security). Burdens and benefits are a characteristic of contracts. As you all know, the government is not a party to the compact, but merely a creature. As such, it has no independent power or right to alter any term of the compact.
7. Agency Theory: The Constitution also implicates Agency law or Agency theory. Under this view, the federal government is an agent – an agent of the States. The law of agency, at its most basic level, recognizes that an agent can act only pursuant to the consent and control of the Principal (the Partners) to whom the agent owes a duty. It’s a fiduciary duty — one of particular stringency and loyalty. Just as partners in a business firm decide what authority to give their agent – such as the authority to enter into contracts on their behalf – so the parties to the Constitution – the States – decided the powers of the national government. Actions outside the scope of the agency are not legal. And actions taken by the agent must SERVE the interests of the partners.
Taking these two areas of law together – Compact Theory and Agency Theory – we can see why Jefferson and Madison understood that each state, as a party to the compact and as a partner over the agent, has an equal right to judge for itself whether the government has overstepped its delegated powers.
8. The Kentucky Resolves and the Virginia Resolves. These resolutions (written by Jefferson and Madison, respectively) specifically articulate the doctrines of Nullification and Interposition, as the terms were coined by these great men. – These remedies (actually, they should be used together to be most effective) are explained to be the “Rightful Remedies” against federal tyranny.
The terms Nullification and Interposition were articulated in 1798, following the enactment of the Alien and Sedition Acts during John Adams’ administration. But the doctrines were nothing new. Jefferson and Madison merely explained them best and explained how they should be used to limit government over-reach. But prior to that time, the doctrine was something our Founders were very familiar with. First of all, we know this from the Philadelphia Convention. Our Founders referred to the doctrine by using the term “negative.” To nullify a piece of legislation was to veto it or “negate” it. Furthermore, one only needs to read Federalist No. 78 to understand with complete clarity that any law passed by the government that is not pursuant to delegated powers is and should be considered null and void.
On the fourth day of the Convention in Philadelphia in 1787, Virginia’s Governor, Edmund Randolph presented the Virginia Plan, which was written by James Madison. Randolph, a polished politician, seemed the better choice to sell the plan than tiny, meek, mild-mannered Madison. Madison’s idea was to recreate or re-form the Union under an entirely different form of government – a republican model. As we all know, in a republic, the people are the ultimate power, and the people transfer that power to representatives, who must act within certain guidelines. Yes, the plan was to form an entirely different form of government and not merely to amend the Articles of Confederation. Madison believed that the Confederation was giving too much emphasis to state sovereignty and not enough to the national objectives that were deemed necessary enough to establish the national body, the Confederation Congress, in the first place. For example, the states were under no obligation to pay their fair share of the national budget and they regularly failed to send funds; they violated international treaties, they violated each other’s rights, and in general, they ignored the authority of the Congress. And so, Madison originally (because he was a Nationalist at the time – and not a Federalist) sought to establish a dominant national government, while curbing the power of the states. To that end, his Virginia Plan included these main features:
- A bicameral legislature (two houses) – with membership for each to be determined proportionally
- The lower house would be elected by the people
- The upper house would be elected by the lower house
- The legislature would be very powerful
- There would be an executive, and his position would be enforcement of the laws only. He was to ensure the will of the legislative branch. And in fact, he would be chosen by the legislature.
- There would be a judiciary, with justices allowed to serve for life
- The judiciary would have the power to veto legislation, but it would not have the power to be the final voice. It would be subject to an over-ride.
- And finally, the Virginia Plan provided that the federal government would have a NEGATIVE over any act of the states that interferes with the design of the federal Congress. As Madison’s plan provided: “whenever the harmony of the United States may be interrupted by any law by an individual state legislature such that the law contravenes the opinion of the federal legislature, the federal legislature has the power to negative that state law.” A “negative” is a nullification — negating that law or declaring it to be null and void.
There were some delegates at the Convention who responded it was the states who should have the power to negate the acts of the federal legislature and not vice versa.
So you see that the doctrine, as applied to government, was something very familiar to our Founders. In other words, it is a founding principle of government.
As we should all know, the purpose of the Federalist Papers, written by James Madison, Alexander Hamilton, and John Jay, was to explain the Constitution – to guarantee its meaning – to the States so that they could make an informed decision in their Conventions. Anti-Federalist sentiment was strong at the time and the states were distrustful of the Constitution drafted in Philadelphia. As the author of Federalist No. 78, Alexander Hamilton wrote: “The authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, the foundation on which it rests should be discussed……
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
Tenth Amendment Keepers 