A Hollywood Republican

This blog is for an open discussion on politics. My views will be to the right as will be most of the posters. But, we are willing to post alternative viewpoints as lons as they are well thought out. I started this in response to the Obama election and will continue it as long as it feeds a need.

Mar 1, 2010

Nullification and Federalism


Occasionally, I like to write an article historically based and not necessarily based upon events of the day. However, the issues addressed in this article are not just historical. The issue of Nullification and its effects on the United States are far reaching and in reality were probably the cause of the Civil War. There is a strong movement in the country now based upon Nullification and The Tenth Amendment. The Tea Party movement and Ron Paul are just a small fraction of the groups which are actively supporting these theories and principles.

To understand Nullification, one must first have a basic understanding of Federalism. The United States is a Federalist country. It has always been so from the beginning. A Federalist country is a group of smaller units, in this case States, which are joined together as a union for the common good. In the case of the United States, Federalism comes from historical roots and is embodied in the Constitution. Another example of a Federalist country is the Federal Republic of Germany. Mexico has states but is not truly Federalist in that all the power is concentrated within the Central Government.

Nullification is based on the principle that the Constitution was ratified by the States not the people. James Madison pointed out that each state was ratifying the Constitution for itself, whereas had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Thus, it is the States which control the government and not the people. And, it is the people which, in turn, control the individual States.

So, the Framers of the Constitution understood that they were creating a Federal Government in which the States had ultimate control and the Central Government had limited powers set forth in the Constitution, specifically in Article 1, Section 8. Further evidence of this is found in the Tenth Amendment which clearly states that:

“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.”

However, since the drafting and ratifying of The Constitution, the powers of the States have gradually dwindled. The “Alien and Sedition” Acts and the Tariffs of 1828 and 1832 were some of the first major battlefields involving the power of the Central Government. In both cases, the Central Government won. In the case of the Tariffs, South Carolina nullified the laws and later threatened to secede from the union. A compromise was reached which lowered the tariff thereby ending the crisis before it came to a head.

Unfortunately, this was not the case over the issue of Slavery. From the Missouri Compromise until the election of Abraham Lincoln, the issue of States’ sovereignty came up many times on this issue alone. Prior to the start of Secession in 1860 and the Civil War, many battles were fought in Congress over whether the individual states had the right to be slave or free.

The issue was quite simple. Could a state enter the union based upon its own decision whether it wanted to be slave or free? The South argued that since slavery was guaranteed by the Constitution, any state applying for admission to the Union had the right to declare its choice on this issue. The Northern Abolitionists felt the Federal Government had the right to limit slavery and to eliminate slavery in the Southern states which practiced it. The Republican Party of the time was split on the issue, but mostly believed that Slavery should not cease in the States where it already existed, but could be limited by Federal authority in new states applying for admission.

The whole issue came to a head in 1860 when the initial Southern States seceded from the Union stating that since they had volunteered to join the union, they could also voluntarily secede. We all know the ultimate result: The bloodiest war in the history of the United States. Over 600,000 American lost their lives over this issue.

Eventually, the North won and the South was forced to accept that the Central Government had the power to end slavery and enforce the solidarity of the union. The Tenth Amendment’s claim to power and threats of Nullification and Secession ended. However, it should be noted, that even though the North was victorious, slavery could not have ended and slaves did not become citizens, nor have the right to vote until the passage of the Thirteenth, through Fifteenth Amendments.

States’ rights have dwindled ever since. Most legal precedent for the growth and power of the Central Government come from the clause in Article 1 Section 8 of The Constitution which states Congress shall have to power to regulate Interstate Commerce. This clause has been interpreted by the Supreme Court to give Congress the power to do practically anything provided it affects Interstate Commerce. In fact, the Interstate Commerce Clause is the main reason being used to counter Tenth Amendment arguments on the pending Health Care Legislation.

The theory of Nullification goes back a long way. The Kentucky Resolutions, written by Thomas Jefferson in 1798, contained the following which has often been cited as a justification for both 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 fœderis) 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… “
Now, you may ask, why am I making such a big deal about Nullification? It should be clear. There is a strong minority in the country who believe Nullification should be permitted by the States in regards to the Health Care bill and much other unpopular legislation being proposed by the Obama Administration.

One of the most recent examples of the use of Nullification is Montana’s Nullification of the REAL ID Act of 2005. The Montana Legislature Nullified the law under the theory that the Act was unconstitutional and an improper use of Federal Power. Implicit in the argument was The Tenth Amendment.

Further issues of Nullification are coming up now in many states regarding the medical use of marijuana and, in some instances, the legality of recreational use of marijuana. Federal Agents are using Federal Laws against marijuana to arrest proprietors and users under these state statutes, but thus far, no test case has gone far enough for the Nullification and Tenth Amendment arguments to be scrutinized and ruled upon.

However, that day is coming and will probably come soon; especially if the Obama Administration gets its way and continues to increase the power of the Federal Government. If the Health Care bill passes and 1/6 of the US Economy comes under Central Government control, I am sure that some States will be forced by their citizenry to consider Nullification in the same manner that Congress is considering the unconstitutional use of Reconciliation to pass the bill.

The only question really left is whether the use of Nullification is good or bad. People who believe in the Tenth Amendment, of which I am one, feel that Nullification is good. However, it should be used sparingly and only when there is a strong belief that the Act of Congress and/or the Administration are beyond the powers permitted them by the Constitution.

If this power is used too often, there are many potential ramifications. As written in a prior Article, the Texas Governor has already threatened secession. This is not good. We are the United States of America and we must be united forever. However, when the Federal Government goes beyond its Constitutional powers, then Nullification is the answer and the right comes from The Tenth Amendment and the Constitution itself.

For further information about Nullification, its history and legal theories, as well as the Tenth Amendment please see:



© 2010 by Frank T. DeMartini. Permission to copy will be freely granted upon request.

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5 Comments:

Anonymous Ira said...

Good article Frank. I agree, like you, the Union must ne preserved at all costs.

March 1, 2010 at 9:47 AM  
Blogger bruce nahin said...

Great article, excellent reminder of who and what we are...

March 1, 2010 at 12:41 PM  
Anonymous Anonymous said...

Nullification is a strategy needed. It is as rock solid as ‘Pay as you go.” Wait a minute, there is a problem here.

It is difficult these days to call a liar a liar. It must have something to do with political correctness and less to do with honest dialogue. The greatness of political achievement unmasks an economy of moral conviction and ethical behavior. You know we are speaking of something like that moral outrage over embracing then ignoring “Pay as you go.” Do you really think these folks respect and honor the Constitution? That, the Constitution, is where you got this creature called ‘nullification” isn’t it?

The greatest scarcity in the political arena is ‘to thy own self be true”, and one might add “to thy own self be consistent”, a simple truth all too absent in Washington, and possibly even right here in this blog. Republicans, like it or not, are an intricate part of this witches brew. And you are my second choice after conservatism. I hope for a marriage of the two ideologies.

The issue is passionate, almost always hypocritical, on all sides or anywhere near that mythical ‘Isle” that separates politicians. There is a need for ‘cover” the need for “respect” that outweighs critical discourse. The electorate is mislead by a “point of order” here, a “waver” there, an issue of “emergency”, a nullification, or a “unanimous consent”, when there really isn’t any reason to deal openly and honestly with the issues other than to hide from the truth. It is extremely difficult to occupy the moral high ground if one is not moral. You are not welcomed.

Who has not, hypocritically, championed the “simple majority” concept when it favored their side? Who has not resurrected, dusted off, and reintroduced us to the Constitution, when it served their purposes. And who has rejected the “negative” hypothesis, the limitations, placed on us by the Constitution when it got in the way of “reformation?”

And then someone said try this wordy moniker for honesty, ‘It is also easier for a camel to pass through the eye of a needle than for a politician to know, to speak, to behave accordingly, and to respect the truth.”

It is a shame that the founding fathers anticipated the need for nullification. They knew that honesty, patriotism, and selflessness were all too scarce.

WWII saved America from Nazism and Communism. Think not? Research the 1930’s and the era of Father Charles Coughlin, Communism disguised as social justice, our infatuation with Mussolini, the Roman Catholic Church’s fear of Communism that caused it to embrace Nazism, the American Nazi Youth Camps right there in the Hampton’s, and the pamphlets that said “if you want democracy, vote for Communists.” One is ill advised not to revisit history. However you won’t find it properly represented in today’s text books. I wonder why. Maybe the founding fathers saw all of this coming down the pike.

Nullification is nothing more than a remedy for having done the wrong thing. And there is “purpose” in resurrecting a remedy.

March 3, 2010 at 3:36 PM  
Anonymous Anonymous said...

As always Frank, very well written. If I understand the article nullification is a means by which the states can avoid implementation of the Health Care Reform bill? I appreciate a lesson on nullification&it's origin but what was the reason for such? Do politicians hope this is possibly another way to counter this issue?
I have read here and other places that most of the populace is against this health care proposal which has never been the case since the first day of debate in DC. There definitely exists an uprising of those who oppose it but the majority of citizens still are very supportive of it. You won't learn that on Fox News but it is the truth. Regardless of our political stance we know that, as unpopular as it is, it has be addressed and sooner rather than later. Do I believe the only way to counter rising healthcare costs and deductibles, dwindling benefits and a soon to be bankrupt medicare with a government program? Absolutely not. But when all participants were invited into the discussion those who had the greatest opportunity to offer a different perspective were to busy uttering "no!" to allow anything else to flow from their mouths. Now it's too late, the bill has already passed and they are now working on the the specific amendments in order to shore it up for completion. It was a political game called "let's hand him his Waterloo" and I don't think predicted team won. Now in spite we're looking into other ways to discount what has been done here and the latest is this nullification you refer to. Interesting concept. We'll have to see how that plays out..

March 4, 2010 at 1:00 PM  
Anonymous Anonymous said...

Specifically to Anonymous:
Where in this healthcare proposal does it read " Everybody gets healthcare, all they want, when they want it and all because it is free." Not only is there no verbiage to support such a claim but it couldn't be further from the truth. While we're on the subject of dismantling democracy, please share with me your thoughts on the exercise of chipping away at the constitution such as the last administration did. Were you in favor of that? Or how about we discuss the complete departure from remaining steadfast to the principles of the Geneva Convention, which we not only encouraged other countries to buy into but even took measures to hold them accountable for thier actions when they violated those rules. It's easy to throw around those ugly words like facism or socialism when things don't go your way but I'd rather remain on course with the facts of the subject matter. What is your answer to the problem, name calling isn't a solution and all it is meant to do is incite fear and suspicion in others. The discussion is about how we address the problem of health care, we won't find it through labels or name calling, that's just another exercise in clouding the issue and ensuring we remain with the status quo.

March 5, 2010 at 1:58 AM  

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