Throughout the brief history of the United States we have encountered periods of conflict between federalism and nationalism. Each period contains struggles pitting political powers attempting to concentrate governing authority in our national government and those striving toward the maintenance of clear separations of power among the several governing authorities. Today we are in the midst of the most recent conflict.
News is filled with accounts of federal maneuvering apparently bent on ending this conflict once and for all in favor of nationalized democracy. With out of control spending and enormous legislative bills being rammed through Congress, despite loud opposition from many people, today’s struggle may well break our supreme law of the land, ending this grand experiment. Not since the days of Franklin Roosevelt has the national government seemed so determined to press for total centralization of power. The few who believe they are smarter and more able to provide for fundamental, daily needs and wants are emboldened like never before.
Just as Roosevelt held lowly views of the Constitution and the idea of federalism so too does our current president, Barrack Obama. The main difference is today too many decades of bad traditions, precedents, and expectations are favoring nationalism and we are working within a federalist façade ready to finally crumble. Each of the past century’s assaults has torn down the resolve of many to embrace self-governing freedom over national entitlements despite knowing they are being promised things that simply cannot and will not be delivered.
As this struggle unfolds the notion of states’ rights and nullification, under the 10th Amendment, once again are openly being discussed. This is to be expected if we look back in our history. It was the right of nullification that was at the heart of the Virginia and Kentucky Resolutions opposing the 1798 Aliens and Sedition Acts. States’ rights were fundamental to John Calhoun’s arguments as he stood in opposition to Andrew Jackson in the early 1830s. Each struggle returns us to the words of the 10th Amendment, keystone to our federalist republic’s ability to maintain true checks and balance against centralization. It simply states;
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.
While states’ rights generate a firestorm of emotions, with opponents claiming supporters simply want to return to the days of slavery and racism, nullification often creates a sense of confusion. Many people feel they are well educated in the subject of federalism while holding a core conviction federal law is supreme. After all, this is what they remember being taught in their high school and college American Government classes. So, the idea of a State thinking it can declare federal law null and void simply fails to register.
To help counter this confusion Thomas Woods, Jr. has written a new book, appropriately titled Nullification, which clearly delivers the history and use of the principle. With his usual style for clearly explaining the difficult (read Meltdown to understand economics) the reader is quickly taken through many of history’s struggles and comes away with a better understanding of why nullification is so important in saving federalism each time it has been challenged.
In this book another word is mentioned that may be new to many yet also serves historically to check nationalist intentions in the times of chaos created by progressive nationalists; interpose. Some will say interposition and nullification are basically the same. On the surface it may appear to be but in reality these are more like cousins than twins.
On June 8th, 1789 James Madison pressed our new Congress to listen to his introduction of the amendments (those we know of as the Bill of Rights) to the new Constitution necessary for maintaining unity. While delivering his background on common opposition of the Constitution he stated;
There have been objections of various kinds made against the constitution. Some were leveled against its structure because the President was without a council; because the Senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State Governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary. (Emphasis added)
According to Felix Morley, in his book Freedom and Federalism (Indianapolis, 1959, p. 19), “The keyword here, from the viewpoint of federalism, has been italicized because it was the first time the doctrine of Interposition was foreshadowed as a proper and desirable constitutional practice for the United States.” He further delineates the two cousins by using ‘resolutions of Interposition’ and ‘acts of Nullification’ when discussing each. He defines Interposition as;
…an official action on the part of a State Government to question the constitutionality of a policy established by the central government. The action at least temporarily interposes the sovereignty of the State between its citizens and the distant authority of Washington. Customarily there is some sort of formal declaration to the effect that the objectionable national policy will be opposed until or unless the moot issue of its constitutionality is satisfactorily resolved. (p. 240)
The Virginia and Kentucky Resolution were resolutions of Interposition. Within the Kentucky Resolution the legislature clearlystated it was a “rightful remedy” of States to nullify laws interpreted as unconstitutional. This was a peaceful protest by Kentucky yet it left no doubt its intention, should the Aliens and Sedition Acts not be overturned, was to nullify them within their borders and protect their citizens from national usurpation and oppression.
If the national government wants to avoid having the law in question declared null and void within the State(s) it must respond in some fashion or understand the law will be considered null and void in the State(s) that has interposed. Recently 22 States interposed concerning the Real ID Act. Rather than overturning the act federal officials have decided to simply back away from it (what Morley refers to as tacitly backing down). This is one of the remedies the national government can take. (Unfortunately, as Thomas Woods points out in his latest book, the federal government instead is attempting to repackage it under a different name.)
When a State or States pass resolutions of Interposition it is a documented check against national action deemed to be unconstitutional, whether a majority of the people are in support of the action or not. Federalism is not majority rule on a nationwide scale and the United States is not a democracy no matter how often this mistaken label is applied by nationalists. The two cousins of interposition and nullification stand upon the 10th Amendment as a protective defense against oppressive usurpation and attempts to end federalism.
Our framers designed this system exactly because history repeats itself and federalism will help us restore liberty peacefully. It is imperative today patriotic, virtuous citizens unite behind their State if the State is either passing resolutions of Interposition or nullifying federal laws that violate our supreme law. It is also imperative citizens living in a State unwilling to perform their 10th Amendment duty must demand it does if we are to weather this all out assault on the U.S. Constitution and our federalist republic.
Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.
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