tc allen: Nullification and Interposition

Nullification and Interposition – Part 2

Thomas Allen

The federal government is obliged to cease enforcing a nullified act in a State that has nullified it. If the federal government attempts to enforce a nullified law, such action would be like humans trying to oust their Creator, God — the created agent trying to overthrow the creator sovereign “we the people” of the nullifying State. Although the former is impossible, Lincoln accomplished the latter.

There are only three constitutional ways to overturn the nullification of a federal act. One way is to persuade the nullifying States that it is wrong, which results in the State rescinding its nullification. Second, the federal government repeals or rescinds the nullified act. The third is that the Constitution is amended to clarify that the federal government has the power that has been nullified or that the nullified power is a reserved power that the federal government should exercise.

Although Congress can call forth the militia “to execute the laws and suppress insurrection,” this power does not apply to nullification because the law does not exist in the nullifying State. Since the act of nullification has declared the law null and void, it does not exist in the nullifying State.

One argument against nullification is that the Supreme Court is the final arbitrator of the constitutionality of all federal and State acts. If the US Supreme Court is the final arbitrator, it means two things. First, the creature (the federal government) is superior to the creator (the States). Such usurpation is like man (the creature) usurping the power and authority of the creator (God). Misery and despotism are the results. Second, of the three branches of government, the Supreme Court is the superior branch. However, the Constitution makes Congress the superior branch and the federal courts the weakest. Before it emasculated itself, Congress could restrict the Supreme Court’s jurisdiction to the few items named in Article III and could deny it jurisdiction over most acts of the States. Further, Congress can strip the Supreme Court of its appellate authority. Moreover, since Congress created all inferior courts, it can abolish them. Also, Congress can and has restricted the jurisdiction of inferior courts, which includes the authority to decide the constitutionality of federal and State acts. Further, the President can follow Lincoln’s precedent and ignore the rulings of any federal court, including the Supreme Court.

Another argument that opponents of nullification use is the Supremacy Clause of the US Constitution, Article VI, Clause 2:

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.

Thus, they assert that all federal laws are the supreme law and prevail over the States, and a State cannot judge the constitutionality of a federal law. Deciding the constitutionality of a federal law is the job of federal courts.

Conversely, most founding fathers who were involved with the development and ratification of the Constitution of 1787 (most notably, Madison and Jefferson) assert that only federal laws made pursuant to the Constitution are supreme. That is, only those federal laws necessary to execute specifically delegated powers are constitutional. Any federal law that goes beyond the specifically delegated power is unconstitutional; it is not a law and, therefore, is void and of no force or effect. A State’s nullification makes a finding that a particular federal law is not made pursuant to the Constitution and is, therefore, not a law.

Who ultimately decides if a federal law is constitutional? It cannot be the Supreme Court because that would make the federal government, the creature or agent, the judge of its limits. The only logical arbitrator of the constitutionality of a federal law is “we the people,” that is, “we the people” of each State acting independently either through their legislature or a special convention. Since “we the people” of each State independently ratified the Constitution of 1787 and, consequently, formed the union created under that Constitution and its government, they should be the ultimate and final judge of the constitutionality of all federal acts.

Therefore, federal laws are supreme only if they are constitutional. An unconstitutional federal law or other federal act is null and void. Being the principals of the contract, the US Constitution, that created the federal government and delegated to it certain powers, each State, acting individually, is the final judge about whether a federal action is constitutional.

Another major argument against nullification is that the majority has the right to govern, i.e., the will of the majority must prevail — the majority of the whole or an absolute majority. As a practical matter, the will of the whole community is the will of the stronger interest. (Most people who hold this view demur when the majority turns against their favorite project.)

There are two ways to estimate the majority. The first is a majority of the whole community in the aggregate. The second is a majority of political interests (different classes, communities, etc.) formed into one general confederated community. In the second case, the majority is a majority of the various classes or communities, with the assent of each taken separately. The concurrence of all constitutes the majority — concurrent majority. People who object to nullification because it thwarts the majority are referring to the first type of majority.

Since the Constitution came into being through a concurrent majority, an absolute majority conflicts with the Constitution. (The concurring accent of all the States formed and ratified the Constitution and not a majority of the whole in the aggregate.)

People who object to nullification assert, in effect, that the federal government has the sole right to decide the extent of its own powers and, by that, place the reserved powers of the States at its whim and mercy — thus, destroying the equilibrium of the system.

Nullification is an important but rarely used means to keep the federal government within its constitutional bounds. Without nullification, the federal government, the agent of the States that created it, will assume powers never delegated to it and expand delegated powers beyond what was intended. History proves this point. Since nullification essentially died in 1865, the federal government has exploded far beyond its constitutional bounds, and the States have shrunk to near insignificance.

Do the States have the right to interpose and nullify federal laws? Under the Constitution that the Founding Fathers gave to the union, the answer is “yes.” According to the Founding Fathers’ Constitution, the States are independent sovereign republics, i.e., independent sovereign nations. Just as nations that enter into a treaty or compact can each independently judge adherence to that treaty or compact, so can the States independently judge adherence to the Constitution. Moreover, the States not only have the right, but they also have the duty to decide independently if the Constitution (a treaty and compact between the States) is being violated.

Under the constitution that Lincoln gave to the union, the answer is “no.” According to Lincoln’s constitution, the States are merely administrative provinces. They can only do what the federal government allows them to do. The rights of the States are mere concessions that can be revoked any time. “Might makes right” is the underlying principle of the Lincoln constitution. (For the difference between the Constitutions of the Founding Fathers and Lincoln, see “What Is Your View of the US Constitution?” by Thomas Allen)

Even under the Constitution of the Founding Fathers, the people who controlled the federal government avariciously lusted after power and, therefore, preferred “might” to “right” and objected to a State nullifying even the most unconstitutional acts of the federal government.

Ending grants to State and local governments would be one of the best things to occur in this country. It would give the States the courage to nullify unconstitutional federal acts and to interpose to prevent their enforcement. If the cowardly States cared about protecting themselves and their citizens, they would nullify thousands of federal acts.

Afterthought. A great irony of today is that the woke politicians and other wokesters supporting nullifying federal acts of deporting illegal aliens are using, most likely unknowingly, the political philosophies of Jefferson and Calhoun. What makes their support of nullification so ironic is that they have declared Jefferson and especially Calhoun persona non grata, who should be erased from history.

For more on nullification, see the following works of John C. Calhoun:

The Disquisition on Government,

Fort Hill Address,

Important Correspondence on the Subject of State Introposition [sic], Between His Excellency Gov. Hamilton and Hon. John C. Calhoun, and

“Against the Force Bill”

Also, see these articles:

The Kentucky Resolves of 1798

The Kentucky Resolves of 1799

Virginia General Assembly Report of 1800

Also, see these articles by Thomas Allen:

“Calhoun and Concurrent Majority,”

“States’ Rights,”