The Power of States To Nullify Unconstitutional Federal Actions

David Barton’s article entitled, “Overreaching Federal Government: Is State Nullification the Solution?” is not quite the historical research piece he claims it to be. His claims that our forefathers did not see Nullification as a  suitable tool for states to use in the event of a tyrannical federal government exceeding its Constitutional authority is absurd. The use of nullification as a tool to restrain a tyrannical federal government is indeed a power reserves to the States and to the people.

Let’s begin with the author’s attempt to impugn nullification via “guilt by association.” Barton quotes both Debra Medina, candidate for Governor of Texas and Texas Representative Ron Paul who both speak in support Nullification. We see this as nothing more than a political “cheap shot” by trying to associate a legitimate power of  state governments with politicians who hold unorthodox and sometimes extremist views.  Critical thinkers will not throw out the proverbial baby with the  bathwater as the author is apparently attempting to do.

For the record, the National Nullification of Unconstitutional Federal Actions is a project of Restore Our Constitutional Republic for which I serve as Executive Director and an affiliated Tea Party group. We refused to support Tea Party Candidate Debra Medina due to her support and enabling of  extremist ideologies. We also do not support Ron Paul in his bid for President of the United States of America. Many consider this strange for they are both vocal proponents for Nullification. We will only support conservatives and fiscal conservative candidates that also support states rights and upholding the Constitution’s 9th and 10th Amendments and the enumerated powers clause. Neither Ron Paul or Debra Medina meet our standards for Conservatism despite their and their supporters claims  to the contrary. To remove legitimate issues because some of the proponents may not measure up as bona fide candidates shows a serious lack of analytical thinking. Only the lame stream media  consider Paul and Medina conservative which is contributing evidence of lame stream media bias and why their readership and viewers are abandoning ship for a fair and balanced approach to the news.

Now, in spite of Barton’s claim to the contrary, both Jefferson and Madison embraced nullification as a means to curtail federal tyranny that encroaches upon State powers. The Kentucky Resolutions, written by Thomas Jefferson, contained the following which has often been cited as a justification for rights to recall, nullification and secession:

…that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fÅ“deris) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it…”

In the Virginia Resolutions of 1798, written by James Madison there is a similar argument:

The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases 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 to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.

…The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

The terms interposition holds the same meaning as nullification and Madison further validates his positions in Federalist Papers 16, 40, 43, 46, 59, and 69. The opposition expressed by George Washington had more to do with not seeing the Union he and others fought and bled for crumble before his eyes. It also had much to do with pure politics. Washington and Jefferson were politically opposed to each other concerning the passage of the laws  that became know as the Alien and Sedition Acts.

Alien and Sedition Acts of 1798 are four laws enacted by the Federalist-controlled US Congress which  alleged to be a response to the hostile actions of the French Revolutionary government, but in reality was designed to destroy Thomas Jefferson’s Republican Party which supported the French Revolutionaries. The voting strength of the Republican Party depended in part upon recent arrivals from Europe for their voting strength. The Naturalization Act was passed to postpone citizenship and voting rights an additional nine years. It now required immigrants to have 14 years residency rather than the previous five year period. The two Alien Acts further provided additional powers to the President to imprison and deport immigrants “suspected” of being a threat to the national government. (Seems like an early version of our Patriot Act.) John Adams was the American President during this time and it should be noted that he never made no use of any of the provisions of the Act. It also should be noted that Adams and Jefferson were bitter enemies.

However, it was the Sedition Act that was most evil, for it was written to silence any Jefferson and Republican criticism of the Federalists. (No wonder this party no longer exists. Sounds a lot like the   Democrat Party of today.) The Sedition Act nullified the First Amendment’s freedom of speech and the press by condemning all written and spoken criticism of the Federalists, the Congress and the President. Many journalists of the day were tried and convicted under the Sedition Acts which prompted the Kentucky and Virginia Resolutions. It unified the Republican Party and garnered victory in the elections of 1800 where they repealed the Naturalization Act and let the others expire within the first two years of their sweep of Congress. (Amazing how history seems to repeat itself)

Washington wrote in favor of power these acts gave the President for that is his perspective of the newly formed government. He was military pragmatist, General and President and therefore sided with additional  powers being reserved to the President. Jefferson on the other hand was an intellectual and author of the Declaration of Independence and contributor to the US Constitution. If anyone knew the intent of the Constitution in limiting federal power and reserving such to the states it was Jefferson. The Washington letters are simply evidence of the political trench warfare that existed with our forefathers. Those who studied American history know just how common an event this was. Who was correct and Constitutional? Well, just call me Jeffersonian.

The Framers did just the opposite of the conclusion of the aforementioned article. The Framers and the Founders created Constitution mandates for a small federal government with limited power … does that sound like our existing government? They further put in place mechanisms to prevent such abuse and mechanisms to restore such abuses when committed. This was of paramount concern and one most worthy of every human effort to do everything in their collective powers to write into the Constitution their “guarantee” that the government they have newly founded would never grow to become like the government they had miraculously defeated to garner their cherished liberty and independence earned by their blood.

Barton’s affront toward true patriots seeking to restore sanity to reckless and unconstitutional government spending is shameful and deserves an apology. The Tea Party Patriots are the instruments of the long awaited return to our Constitutional Republic from Progressive Fascism which is pushing toward transformation into transnationalism (one word government.) I am greatly offended as should all American Citizen Patriots about Barton’s claim that all who seek to use our Constitutional rights via the use of Nullification and Congressional Recall are, “…selfishness and anarchy … [that] every citizen who loves his country and his Constitution must renounce, reject, and oppose this maldoctrine, boldly confronting it in every venue where it raises its venomous head.”

Just how vile does vile get? It is we, the true American Patriots that stand opposed to the unconscionable, unconstitutional usurpation of our Constitutional rights and powers granted to We The People and the States by the blood of our Founders that embrace Nullification, Recall and all other legal powers as duties of every American citizen. Our current Executive, Legislative and Judiciary branches of the federal government do not subject themselves to the Constitutional Rule of Law and are therefore guilty of Treason for by not doing so they have reduced themselves to Domestic Terrorists and Tyrants. It is not merely the Constitutional Right of the people to defeat such federal tyranny but an obligation and duty to do so. Liberty must be fought for every day, by every citizen lest Tyranny and domestic terrorism prevail. Nullification has the power and the might to roll-back all unconstitutional federal actions perpetrated against the American People over the last 100 years and to Restore Our Constitutional Republic. About 35 states have enacted some form of Constitutional Resolution and nullification of unconstitutional Health care reform bills and Cap-and-Trade.

I’d like to see all the opponents of Nullification cite which specific enumerated powers granted to the federal government sanctions legislative, executive or judicial action in the following areas: Health Care; Environment; Education; Agriculture; Energy; and Personal Finances to name but a few. Article I, Section 8, of the US Constitution is also referred to as the enumerated powers of the federal government. I suggest all opponents of Nullification including every candidate for US President, state and US Congress; and Judiciary including the Supreme Court read and study the US Constitution and US History.

The threat of eroding and nullifying the Constitution existed even at the time of our forefathers. Thankfully, critical thinking and mature minds prevailed to right the wrongs until The Progressive Movement (Liberal Statists) reared their ugly heads in the mid to late 1800’s. Since the early 1900’s it seems that Conservatives slipped into a political coma in regards to upholding and preserving our Constitutional Republic. The constant and gradual erosion of Constitutional powers over the last 100 years does indeed meet the level of abuse the founders would deem as tyrannical and a justification for nullification. The Kentucky and Virginia Resolutions were astoundingly successful in the repeal and expiration of unconstitutional laws. Let’s return to Barton’s question and his answer,  “Did the Founding Fathers – the Framers of our government – give states the constitutional power to nullify federal laws? As will be seen in the historical evidence presented below, the answer is an unequivocal “No!”; they did not give that power to states. In fact, every major Founder condemned this type of state nullification – including Thomas Jefferson, who is wrongly invoked above as approving it”

Really? Upon examining the true facts of history, (we have a right to our own opinion but not our own facts) the answer to the question put forth above is an unequivocal YES! Nullification is wholly and properly a rightful tool under the 10th Amendment. Nullification succe3eded then … and it will succeed again now. Thank God for without that right this nation would be the worse for it.

Here’s another tool I’d like to see used moving into the 2010 election cycle, the Candidate Pledge. In fact, I’d like to the the following Candidate Pledge signed by every legislator elected to Congress.


Candidate Pledge

I solemnly pledge to my constituents that I will consistently vote to not increase the Debt Ceiling but rather to cut, defund and eliminate spending programs, agencies, and departments. not specifically authorized by an enumerated power of the United States Constitution as the sole means to meet budgetary shortfalls. No tax increases of any kind shall be considered for meeting existing obligations.”

I further pledge that for any federal department, program, or activity that I do vote to fund, I will provide the specific enumerated power authorized under the US Constitution. If no such authority exists I pledge to vote nay for continued funding.”

If all Congress would adhere to this simple pledge this country would once again be restored to the Constitutional Republic we were destined to be and our massive debt would steadily and systematically decline until a budget surplus becomes the rule of order.







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