Nullification and “A Few Good Men”

Nullification and “A Few Good Men”

Jack Nicholson as Colonel Jessup #2I am an attorney. I studied the law. I studied Constitutional Law.  Judge Andrew Napolitano, Fox News Senior Analyst, was my Con Law professor. He not only taught me constitutional law jurisprudence, he instilled a passion for understanding how this great document defines our government and protects our individual rights.

Having said that, it should be noted that law schools teach “Constitutional Law” and not the Constitution. They don’t teach the Constitution from the founders’ point of view. They don’t refer to the Federalist Papers and other founder era sources. And they rarely even refer to decisions as “judicial activism.” They teach the Constitution not according to its intended meaning, but rather according to the many landmark Supreme Court decisions that have interpreted it, defined it, and in almost all cases, broadened it.

As one law student put it:  “I don’t know about the experience of other people who have attended law school, but I’d estimate that we spent perhaps only 0.5 percent of the time between two semesters of Constitutional Law learning about what the Constitution says and what the founding fathers intended. We spent no time on the Federalist Papers, and the Constitutional Convention in Philadelphia was only mentioned as a historical fact. No more was discussed on the matter. The intent of the Founders can’t be found anywhere in my Con Law book or any other books we read. In fact, the only time I recall reading about the founder’s intent was when Justice Scalia wrote the opinion, the concurring opinion, or the dissent in cases.”

Considering that the foundation of government in our country is based on the Constitution, wouldn’t it make more sense to teach lawyers how best to preserve its integrity rather than inspiring them to help dismantle it?  Wouldn’t it be exceedingly prudent to teach students what the Constitution means, why it was drafted as it was, and what essential principles and ideals underlie it?

Unfortunately, although I attended public school before much of the current progressive agenda kicked in, I still never learned much about our founding history, our founding documents, or our founding principles. I know it has only gotten “progressively worse,” if you’ll excuse the pun. After high school, I went to college, then graduate school, then took post-graduate classes, and then finally went to law school. All the while, I had to work while taking classes in order to support myself, or as in the case of law school, I had just gotten married and was giving birth to my four children (pregnant my entire time in law school). The point is that life was happening. I was just going with the flow, doing the best I could, and trying to get by. I had no extra time to read the Anti-Federalist Papers, the Federalist Papers, the Notes on the Debates of the Constitutional Convention of 1787, and the debates surrounding the state ratifying conventions. So when I left law school, I knew what judges said about the Bill of Rights and the Constitution, but I didn’t know what our very founders said or intended about that document.

Luckily (and I do mean “luckily”), I lost my job in 2010 when the economy tanked. When it was clear that I wouldn’t be able to find a job any time soon, I finally committed myself to study the documents I should have studied BEFORE going to law school and reading what judges have said. I can tell you that a study of our Constitution, from the perspective of our founding fathers and the states who were initially were skeptical of it, was a the most eye-opening experiences for me.

All of a sudden, things began to make sense. The story of our founding is inspiring, but no more inspiring than those men who used their brilliant minds to find the proper philosophy to explain the role of government, who used their debate skills to come up with the best design of government, who used their keen sense of intuition to include the proper procedural checks (and balances) to keep the branches of government within their respective spheres, and who used the proper words to draft a constitution that would most effectively and securely protect individual inalienable rights and right to have a government by the consent of the governed.  Never have I felt more proud, or felt so lucky, to be born an American. I have done my best to educate others ever since. I hope every American will find the opportunity to have the same epiphany that I did.

Of all the principles and ideals that our country was founded on, my greatest passion is states’ rights and nullification. Perhaps it’s because those two concepts have been the most vilified and eroded over our history, and most certainly since the time of the Civil War. Or maybe it’s because Thomas Jefferson is my favorite Founding Father, and aside from the fact that he drafted the Declaration of Independence and the Northwest Ordinance, and articulated the Right of Religion, he clearly expressed the viewpoint that in order to keep the federal government limited in scope, the states would have to be willing to defend their sovereignty.

I’ve been writing about nullification for years. Nullification, in short, is the principle that any law passed without proper authority is not a valid law and is not enforceable on the people. In the US, the Constitution carefully defines the authority the federal government and acknowledges that whatever powers were not delegated expressly to the government are reserved by the states. Article VI, Section 2 (the Supremacy Clause) states that the Constitution and all laws passed in pursuance to it are supreme law.  The reverse is therefore implied and true – that all laws NOT passed in pursuance to powers delegated by the Constitution are not supreme. The states therefore have no obligation to recognize or enforce them.

This is the concept of dual sovereignty, a unique and most brilliant feature of our government system. Since both the states and the federal government are sovereign over their respective powers, each will forever act as “jealous guardians” over those powers and prevent each other from encroaching into their domain.

The Sons of Liberty, in effect, “nullified” such Intolerable Acts passed by the British Crown/Parliament as the Tea Act, the Stamp Act, and the Quartering Act when they engaged in simple acts of civil disobedience which prevented their enforcement. The Sons of Liberty harassed colonial Stamp agents so thoroughly that they resigned and the British could not collect the tax on paper goods. The reason they protested those Intolerable Acts was because they knew their rights as colonial British subjects and knew that they were being violated. The King was acting outside his authority to rule the colonies.  As most people are unaware, nullification (although not known by that term until Jefferson coined it in the Kentucky Resolves of 1799) is a firmly-entrenched constitutional principle. It was discussed at every stage of the drafting and ratification of the Constitution..  again, not by that term, of course.

In the Constitutional Convention, delegates roundly rejected James Madison’s version of a strong centralized government. (He was initially a Nationalist). Madison called for a centralized government that was not limited in its powers. As if that wasn’t enough, he called for a “government veto” whereby the federal government could veto any action by any state that it did not approve of. The other delegates, mostly federalists, quickly rejected that part of the Plan (the Virginia Plan). If there would be any “veto,” it would be a “state veto” which would be the power of any state to  declare when the government had overstepped its limited, constitutional bounds, and encroached into the states’ sovereign powers. A state veto is the same as nullification. The Senate branch of the Legislature (pre-17th Amendment) was a direct “state veto” power within the structure of government. If the states felt that any piece of legislation was without proper authority or in abuse of authority, its senators would simply vote it down. (That’s why we need to abolish the 17th Amendment and re-establish the Senate as a body devoted to States’ interests).

The states’ ratifying conventions also spoke about the right and duty of states to exercise its “veto” power.  It was always assumed that under the “compact nature” of the Union (ie, the states signing the Constitution, agreeing to equally delegate some of their sovereign power to the federal government and to be commonly bound… thus, the “united” States), the states had the power to remind the government of what powers it had and did not have.

Nullification is based on the federal nature of our government, on the Supremacy Clause, and most strongly, on the compact nature of the Constitution. Americans are not taught their founding history and are certainly not taught the principles that underlie their government. They talk about “checks and balances” but only the simple ones – the president’s veto power and the federal courts. But the most important of checks and balances is indeed this notion of dual sovereignty and the willingness of states to stand up to unconstitutional conduct by the federal government.

Continue at Nullification and “A Few Good Men” | Tenth Amendment Center.

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