The debate surrounding Nullification has been ongoing since the very beginning of the Republic. The first use of Nullification was against the Alien and Sedition Acts. These Acts were used to imprison more than two dozen newspaper editors and essentially shut down free speech. Thomas Jefferson and James Madison wrote the Kentucky and Virginia resolutions declaring that the Alien and Sedition Acts were null and void in those states. All this started in 1798, seven years after the ratification of the Bill of Rights which include the IXth and Xth Amendments. The order of events is important. It can be argued that these last two Amendments in the Bill of Rights were designed to restrain the Federal Government’s power through misuse of the Commerce Clause or Supremacy Clause.
- Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment X: 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.
In simple language this means that the Supremacy Clause and the Commerce Clause are restrained by the states and the people, that the Federal Government has a very narrow area of responsibility. These two Amendments were added to the Constitution because limiting the powers of the Federal Government is essential to establish proper balance between the States and the Federal Government. In Federalist Paper 45, James Madison writes:
“The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”
In these words Madison explains that the checks and balances include the several States which gives constitutional weight to the legitimacy of Nullification Resolutions.
Madison also writes:
“Having shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States.”
The Federal Government has, in recent decades, seemed to act as if the whole mass of these powers makes the Federal Government the lord and master of the states and the people, and that each is there to serve at their pleasure. Two examples of this overreach are the Environmental Protection Agency’s declaration of the CO2 endangerment finding to shut down coal-fired power plants, and the U.S. Fish and Wildlife Service shutting down irrigation in the San Joaquin Valley to protect the Delta Smelt. Neither of these areas of law is mentioned in the enumerated powers of the Federal Constitution. Despite this, these Federal Government agencies have taken action enforcing these regulatory laws resulting in significant detrimental economic impacts. So, in keeping with the spirit and intent of Amendments IX and X, the Federal Government has no business making laws concerning these issues or any issue that is not defined in the Constitution.
For those of you who feel that Nullification is too touchy to pursue, consider that Texas Gov. Rick Perry has already begun this de facto Nullification by refusing to form the state healthcare exchange as required by the Affordable Care Act. California, Arizona, Colorado, Washington and other states have all acted to nullify federal narcotics laws by simply refusing to enforce them (e.g., medical marijuana).
Efforts to diminish the intent of the IXth and Xth Amendments have focused on the argument that the Bill of Rights (or any other Amendment) cannot alter the text of the Constitution itself. This simply is not the case, for if this were true then the XIII and XIV Amendments would not have corrected the profound birth defect of our Constitution concerning slavery. These two Amendments do alter the language of the Constitution in Article IV where it clearly upholds the institution of slavery and Article I Section II striking the three fifths rule and allowing freed slaves to vote. This brings me back to Nullification.
In the decade leading up to the War Between the States, fourteen Yankee states passed Nullification Resolutions of the fugitive slave act and other laws pertaining to slavery. It might be argued that these Nullification Resolutions led to the eventual adoption of the XIII and XIV Amendments which were clearly necessary in the wake of the Supreme Court’s decision in the Dred Scott case.
In the wake of the Supreme Court decision on the Affordable Care Act, there are plans among conservative groups to bring up for debate Nullification Resolutions in all fifty states in the coming state legislative season. Other conservative groups must ask themselves if they wish to be only spectators or do they wish to join in on this debate so as not to be considered irrelevant.
Tenth Amendment Talking Points
1. The People created the federal government to be their agent for certain enumerated purposes only. The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.
2. The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States. The rest is to be handled by the state governments, or locally, by the people themselves.
3. The Constitution does not include a congressional power to override state laws. It does not give the judicial branch unlimited jurisdiction over all matters. It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.
4. If the Congress had been intended to carry out anything they claim would promote the “general welfare,” what would be the point of listing its specific powers in Article I, Section 8, since these would’ve already been covered?
5. James Madison, during the Constitutional ratification process, drafted the “Virginia Plan” to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress. Each one of these proposals was soundly defeated. In fact, Madison made many more attempts to authorize a national veto over state laws, and these were repeatedly defeated as well.
6. The Tenth Amendment was adopted after the Constitutional ratification process to emphasize the fact that the states remained individual and unique sovereignties; that they were empowered in areas that the Constitution did not delegate to the federal government. With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty – and unconstitutional.
7. Tragically, the Tenth Amendment has become almost a nullity at this point in our history, but there are a great many reasons to bring it to the forefront. Most importantly, though, we must keep in mind that the Founders envisioned a loose confederation of states – not a one-size-fits-all solution for everything that could arise. Why? The simple answer lies in the fact that they had just escaped the tyranny of a king who thought he knew best how to govern everything – including local colonies from across an ocean.
10th Amendment Resolution
The following is a sample 10th Amendment House Concurrent Resolution approved by the Tenth Amendment Center. Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this resolution in your state.
A RESOLUTION affirming the sovereignty of the People of the State of _________.
WHEREAS, in the American system, sovereignty is defined as final authority, and the People, not government, are sovereign; and
WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal government; and
WHEREAS, all power not delegated by the people to government is retained; and
WHEREAS, the People of the several States comprising the United States of America created the federal government to be their agent for certain enumerated purposes only; and
WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “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”; and
WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government in the Constitution of the United States, and also that which is necessary and proper to advancing those enumerated powers; with the rest being left to state governments or the people themselves; and
WHEREAS, powers, too numerous to list for the purposes of this resolution, have been exercised, past and present, by federal administrations, under the leadership of both Democrats and Republicans, which infringe on the sovereignty of the people of this state, and may further violate the Constitution of the United States; and
WHEREAS, when powers are assumed by the federal government which have not been delegated to it by the People, a nullification of the act is the rightful remedy; that without this remedy, the People of this State would be under the dominion, absolute and unlimited, of whoever might exercise this right of judgment for them.
NOW THEREFORE, BE IT RESOLVED BY THE _____ OF THE _______ GENERAL ASSEMBLY OF THE STATE OF ______, WITH THE SENATE
CONCURRING, that we hereby affirm the sovereignty of the People of the State of _______ under the Tenth Amendment to the Constitution of the United States over all powers not otherwise delegated to the federal government by the Constitution of the United States; and, be it further
RESOLVED, that this Resolution shall serve as a Notice and Demand to the federal government to cease and desist any and all activities outside the scope of their constitutionally-delegated powers; and, it be further
RESOLVED, that a committee of conference be appointed by this legislature, which shall have as its charge to recommend and propose legislation which would have the effect of nullifying specific federal laws and regulations which are outside the scope of the powers delegated by the People to the federal government in the Constitution; and, be it further
RESOLVED, that a committee of correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship as currently exists; that it considers union, for specified national purposes, and particularly those enumerated in the Constitution of the United States, to be friendly to the peace, happiness and prosperity of all the States; and, be it further
RESOLVED, that a certified copy of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives, and to each member of this State’s Congressional delegation with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.
“Somebody ought to do something!”
“I’m tired of shouting at my TV but what am I to do? Write a letter? Send an email? A fax? What for? “They” don’t care about us and they’re not listening!”
“What are we supposed to do?”
Sound familiar? Well, Patriots, there’s not one thing you can do—there are actually three options to choose from—as a 21st century Patriot we can exercise one, two or all three at the same time!
Imagine if you will a trident—a long three pronged spear commonly associated with the classical god of the sea—Neptune (or Poseidon). The first prong is “educate,” the middle—“advocate,” the third—“participate.” The trident is the Patriots’ best weapon in the fight to save our republic from those hell bent on shredding the Constitution and replacing it with a “living” document. Here’s how.
Educate—First, start with educating yourself. Have you read the Declaration of Independence? The Constitution? How about the Bill of Rights? Remember them from civics class? Oh, that’s right; civics class has long since vanished from the majority of our schools. Only old guys like me remember learning about local, state and federal government and how they are supposed to work together; laws—and how they are to be created, argued and passed and how those laws are supposed to be interpreted, enforced and by whom.
Feeling comfortable with your knowledge of basic civics? What about political ideology? Is a democracy the same as a republic? What does “left” mean? What about “right?” What’s the difference between “Progressives” and “Populists?” Are they diametrically opposed or kissing cousins? Is the FED (Federal Reserve Bank) the “fourth branch” of our government as they think they are, or are they a collusion of key banks whose primary mission is dictating financial policy to financial institutions throughout the country? What is a republican form of government? (No, it does not refer to George W. Bush and the previous administration.) Who and what are Progressives? (No, they are not interested in “progress” unless you subscribe to their definition and are willing to fund “progress” in the form of increased taxes.) Are Populists the most popular people in politics?
Yes, these questions are silly but do you know the correct answers? Furthermore, can you explain them to your spouse, your children, your neighbors and friends and, if so, what are you going to do with this knowledge?
Advocate—So you think you understand the differences and similarities between republicans and democrats, Marx and Jefferson, Machiavelli and Locke? Great! Now, go forth and argue your cause! Don’t cry out alone in the darkness. Mobilize your independent spirit and energize your first amendment right of free speech. How?
Participate—It’s time to get off your fanny, get on your feet and get involved! Become politically active. Join a tea party, 9-12 group, Tenth Amendment team, Oath Keepers or one of dozens of politically active groups growing in strength and stature throughout the republic. Don’t stand down waiting for someone else to do something. Set the leadership pace, take the point and others will follow. Be the one others emulate (don’t be another silent couch potato content to accept the scraps of injustice thrown by “our” political representatives and leaders in local, state and federal legislatures and power centers).
Now, Patriots, right now—stand up, peacefully wield your “trident” and move out! The survival of the republic depends upon YOU!
San Antonio, Texas