State Sovereignty and Nullification

This is adapted from a pocket pamphlet that I wrote and distribute.

The states are the sovereign entities in these United States. Too many people have believe the notion that the federal government is supreme. That is a dangerous myth that needs to be dispelled. It is also responsible for many of the problems we see here in the United States.

I will start this story with the Lee Resolution. It was the law that made us free of Great Britain. It was passed on July 2, 1776 and stated:

Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”

It recognized the sovereignty of the states. Notice that the word “state” is different than what we think of today. “State” in this context meant a sovereign country. Notice the term “State of Great Britain”. That is what is meant by “state” in this resolution. So it was resolved that the 13 colonies were free and independent states, what we consider countries in today’s meaning. Also note that at this point there was no federal government.

Move ahead two days. The Declaration of Independence was issued. This document described what our mission was and why the colonies were doing what they were doing. What most miss in this document is the last paragraph. In it the idea of sovereign states was spelled out once again.

“That these united Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.”

At this point the colonies are now the united States of America. The term “united” is not capitalized in the original document and is simply describing the situation of the states in America. They were united against the common threat of Great Britain and that they are free and independent states (countries) that have the power that any other sovereign country has.

Then the revolutionary War was fought. The Colonies triumphed. During the war, the Articles of Confederation were passed. It was agreed to by Congress November 15, 1777 and later ratified on March 1, 1781. The British surrender at Yorktown marked the end of warfare and the Treaty of Paris in 1783 formalized that arrangement.

After the war the Articles of Confederation were still in place. The states were still sovereign. One of the biggest problems faced by the new America was that the Articles of Confederation gave the federal government no real power to coerce states to meet their obligations. A large debt had be accrued during the war and the Treaty of Paris required American citizens , the states and the Confederation to recognize their debts to foreign entities. States were passing laws that protected their own citizens at the detriment to other states or just ignored the treaty provisions. Things were a mess.

So a convention was called for the states to come together to strengthen the Articles. When the Constitutional Convention met in 1783 it was quickly determined that the Articles of Confederation were inadequate to the task and a new Constitution needed to be written. So that was accomplished and on September 17, 1787 the Constitution was approved by the convention.

We had a federal government that would be created when the Constitution was ratified by delegations of the states. It was important to the Founders that the state legislators endorsed the Constitution and that the it was not put to a popular vote. So it proceeded to be ratified in the states until a majority was reached and the Constitution was the law of the land.

What the Constitution created was a limited federal government, deriving its powers from the states that created it. Remember, to this point in history the States were recognized as completely sovereign. They had all of the powers of a modern day country. The Constitution DELEGATED certain ENUMERATED powers to the federal government. These powers were mostly “external”, powers that gave each individual sovereign state a common voice to talk to the rest of the world with. Instead of making 13 separate treaties with every country who wanted to deal with us, we had a united voice that spoke for all of the states. James Madison was most eloquent on this point.

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 the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all 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.

Here is a copy of Article 1 Section 8 where those enumerated powers were described.

The Congress shall have the power

1. to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States:

2. To borrow money on the credit of the United States:

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes:

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States:

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures:

6. To provide for the punishment of counterfeiting the securities and current coin of the United States:

7. To establish post-offices and post-roads:

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries:

9. To constitute tribunals inferior to the supreme court:

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:

13. To provide and maintain a navy:

14. To make rules for the government and regulation of the land and naval forces:

15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:

16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings: And,

18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.

This is what powers were DELEGATED to the federal government. This is all they are supposed to concern themselves with. The rest is left to the States and the people.

A very important side note. The Bill of Rights was not part of the original Constitution. It was determined by the majority in the Convention it was not needed. It was argued that the federal government created with its enumerated powers could not infringe on our natural rights. Some argued that by listing those rights that government would be able to interpret them. For instance a freedom of the press. No one would question the validity of this provision but future governments could redefine what “press” meant to circumscribe its protections. Others argued that the sovereignty of the states would insure that the citizens of the states were protected from the federal government trying to usurp the people’s natural rights.

When it came to ratification this argument for a Bill of Rights was one of the strongest that the Anti-Federalists had. The Anti-Federalists believed that too much power was ceded to the federal government. They believed that government tyranny and an erosion of state sovereignty would occur if the Constitution was ratified.

The Constitution was ratified but the debate on a Bill of Rights continued. Some were even calling for an Article 5 Convention to amend the new Constitution. The Federalists had overplayed their hand. James Madison took up the cause of a Bill of Rights and with urging from Thomas Jefferson introduced a Bill of Rights in the newly formed Congress. Many states had the protections of their natural rights spelled out in their State Constitutions. It became apparent that it was needed at the federal level to qualm people’s fears of federal tyranny. In 1791 enough states ratified them to be the first 10 Amendments to the Constitution.

Many people are familiar with the First Amendment, even more with the 2nd, then less is understood as you move down the list. The two that stand out and are the least understood are the 9th and 10th Amendments. The 9th Amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people “

That meant even though it was not listed didn’t mean that a right was not retained by the people.

The 10th Amendment in my opinion is the Amendment MOST misunderstood or unknown by the American public.

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.”

Its meaning is quite simple. The delegated powers of the federal government are listed and that is all they can do. Anything else that needs to be done is handled by the states or by the people themselves. It reinforces the idea and practice of a limited federal government. It also supports the idea of state sovereignty and the retention of rights by the people.

Some will say that the federal government is supreme. They will even cite the “Supremacy Clause” in the Constitution to back up that erroneous assertion. The Supremacy Clause is located in Article 6 and states:

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, any thing in the constitution or laws of any state to the contrary notwithstanding. “

It does NOT state that any law created by the federal government is the law of the land. It states that the Constitution and laws made in PURSUANCE thereof are the law of the land. Unconstitutional law is not recognized as supreme. If our federal government tries to do something that is not in their enumerated duties then it is by definition unconstitutional and need not be followed. No state or person is liable to follow those laws. This is how our republic is supposed to operate. Through ignorance we have moved away from that ideal.

Some of the more desperate will say that the states gave up their sovereignty when they ratified the Constitution. This is a laughable assertion. Realize that the Constitution is a compact, a fancy word for a contract between sovereign powers. Those sovereign powers were the states. The contract was the Constitution. The creation of that contract was the federal government. The federal government was a product of this contract. The States delegated certain powers to the federal government. Nothing was given away.

Understand what “delegated” means. It does not mean to give up or give away. It means to allow someone else to use specific powers in your name. The best example of this is a simple restaurant model. Imagine a restaurant that serves burgers, fries and shakes. The owner of the business hires people to do these tasks. What would happen if the fry guy came in one day and decided not to make fries? Would the owner throw up his hands and say “Sorry folks, no fries today, the fry guy isn’t doing them”. Or would he fire the fry guy, hire a new one or maybe be the fry guy himself until someone else could be hired? Because the fry guy decides not to make fries, does that restrict the owner from doing it himself or finding someone else to do it? Does the fry guy own the right to make fries? Of course not. What happens if the fry guy decides he would rather make onion rings because some people want them? Can he tell the owner that he is now making onion rings? Another ridiculous question whose answer is emphatically NO! This example is no different than what is happening today in our country. Our federal government neglects tasks it is actually supposed to handle and performs tasks it is not allowed to do. The problem is the states allowing it to continue.

The federal government is usurping state powers by doing at lot of what it is doing. The Affordable Care Act, the E.P.A. and B.L.M. are some of the higher profile examples of these usurpations. These are functions performed by the federal government with no constitutional relevancy. Refer to Section 1 Article 8 as to the true responsibilities of our federal government. These others are functions that the states or the people rightfully should be in charge of. We have moved past that paradigm quite a while ago.

This brings us to nullification. Nullification is a state protecting its citizens ( interposition) from unconstitutional federal laws. We have seen states of late flexing their constitutional muscle. Colorado and Washington are two of the highest profile states in this category. They have made marijuana legal in their state in opposition to unconstitutional federal laws. This is what nullification looks like. Other states have jumped on the bandwagon. Kansas has The Second Amendment Protection Act which states

Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas.”

The 18th Amendment (Prohibition of alcohol) was finally repealed because of nullification efforts. Some states refused to enforce the laws. It was common in areas to have the juries nullify cases by voting not guilty when these offenses came before them. It could not be enforced without the help of the people and the states.

Northern abolitionist states before the Civil War passed “personal liberty” laws with thwarted the federal fugitive slave act. Those people were not going to be party to slavery and they had their states supporting them. They didn’t repeal the fugitive slave act, they just didn’t participate or support it.

James Madison chimed in on this. (from the Virginia Resolution):

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 appertaining liberties to them.”

Thomas Jefferson had something to say also (contained in the Kentucky Resolution):

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.

Nullification IS the constitutionally tried and true method to reign in government overreach. Realize that in every day terms how nullification works. The federal government requires assistance to further its attacks on American’s rights. The states up to this point have been their accomplices. In the states where nullification is taking hold, the local law and government forces are forbidden to aid and abet federal intrusion on the affairs of a state. Without this help the feds do not have the resources or manpower to support these operations. The other aspect is if the federal government is not doing a duty it is supposed to then the state is obligated to perform that duty until the federal government starts. It is that simple.

Nullification is the avenue to curb the federal government. Electing new officials to the juggernaut in Washington hasn’t helped reduce the size nor unconstitutional actions in government, no matter the party in power. Federal officials are hard to influence. They are distant and in most cases hardly seen by their constituents. State officials, however, are MUCH more accessible and influenced. I know where my state representative lives. My Representative also works in the area. He is very much part of the community and is accessible to the public. They invariably live among the people that they represent. More importantly, they are easier to influence and if need be replace than those at the federal level if they are part of the problem. An effort by a relatively small group of people can determine the outcome of a state election much more readily than a federal one. The bonus is the states do hold the power in our republican equation.

This is not a new idea. It is just one that hasn’t been taught in America for quite a while.

So the question naturally comes up, “What can I do?”. It is up to the people to right their own government. The government is not going to do it themselves.

Education. Learn about the Constitution. There are many places to get good information on the Constitution. Some of my favorites that I suggest are

1) KrisAnne Hall ( http://krisannehall.com/ ), a lawyer turned constitutional advocate. She travels the country talking to groups of people and state legislatures informing them to the truth behind our Constitution. She has a few books out and does a radio show.

2) The 10th Amendment Center ( http://tenthamendmentcenter.com/) is another great resource for all things nullification.

3) I also recommend Hillsdale College (http://online.hillsdale.edu/dashboard/courses) and their Constitution 101 and 201 courses. Very much like a college course, it is structured and filled with abundant amounts of information.

4) Read books. Research and find good books on the subjects of the Constitution and the Bill of Rights and read them. Nothing like a good book for information.

Remember, true education takes time. Lots of time. Don’t forgo this step or your further efforts will be reduced in effectiveness.

Remember, education is a tool to be used to inform people so they can DO something. Simply learning something and doing nothing with the information is useless and simply a waste of time. While the more informed person is taking action to support the Constitution, state’s rights and nullification, newer members must be found and educated so they can take their place on the front lines to bolster their numbers. This process should be a basic model for activism. New people must always be added to keep groups vibrant and successful.

Social media is a good avenue to disseminate information. Find like minded people and make connections. Facebook and twitter are great avenues to use to get the message of liberty out.

Find groups in your area where like minded people meet. Go to meetings. Make connections and see what people are DOING. Lots of people talk but unfortunately do little more than talk. If you can’t find any effective groups then start your own. I recommend attaching yourself to other established groups to further the cause of liberty but sometimes they simply don’t exist in your area.

Most importantly, don’t be silent. Speak up whenever appropriate to support the ideals found in the Constitution.

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.”

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