As awareness of nullification continues to grow, the big-government advocates whose plans it threatens continue to demean it as antiquated and dangerous. They say that nullification is unconstitutional because it is never mentioned in the Constitution. Curiously, it doesn’t seem to trouble them that the wide swath of powers that they want to grant the federal government is also not mentioned in the Constitution.
These people are more ably answered by the experts, but I would like to submit a quick, logical argument for why I believe nullification is perfectly in line with the principles of the Constitution. In my opinion, the legality of nullification rests on the following three questions.
1. Does the Constitution limit the scope of the federal government?
The answer to this question is clearly yes. The writers of the Constitution went to great lengths to lay out exactly what each of the branches of the federal government would be permitted to do. Under the legal norms of the day, any responsibility that was not explicitly delegated to the government was understood to remain with the people. This is why men like Pennsylvania’s James Wilson said that a Bill of Rights was unnecessary.
Because the Constitution did not mention anything about giving the federal government the authority to regulate something like speech, it was understood that the people’s right to free speech was already protected. Since the Constitution is a positive document in that it grants authority to the federal government on specific topics, anything that the government attempts to do outside of these grants is unconstitutional. The Bill of Rights, particularly the Ninth and Tenth Amendments, merely formalized this understanding.
There are those that will quote clauses like the Commerce Clause, the General Welfare Clause, the Necessary and Proper Clause and the Supremacy Clause as proof that the Constitution granted widespread powers beyond what was specifically enumerated. What these people fail to realize (or at least hope that others won’t) is that these clauses refer only to the actions that the federal government can take in pursuance of constitutional laws.
This is why the Supreme Court’s finding about the constitutionality of Obamacare is incorrect. Yes, Congress has the power to tax, but not in pursuance of unconstitutional laws. Understanding all of this we can say definitively that the Constitution does limit the scope of the federal government.
2. Does it make sense that the Founders would not provide for the possibility that the federal government would ever attempt to go beyond these limits?
It makes no logical sense to believe that the writers and ratifiers of the Constitution would trust the federal government to confine itself to its delegated powers. Much of the Constitutional Convention and the state ratification debates centered on how the federal government could be kept within its limits.
Proponents of the Constitution were confident that any unconstitutional legislation could be handled within the structure of the federal government. Opponents of ratification, who were opposed to the Constitution on the grounds that it would eventually be misinterpreted so as to give too much power to the federal government, believed that there needed to be additional safeguards in place. Their concerns led the proponents to assure them that there would be additional checks if necessary.
3. What government unit would have the final authority to act as a check on federal overreach?
In response to the concerns of the opponents, advocates for ratification assured their audiences that the states would be able to resist unconstitutional legislation.
Roger Sherman of Connecticut said, “One excellency of the constitution is that when the government of the united States…leaps those bounds and interferes with the rights of the State governments they will be powerful enough to check it.” Alexander Hamilton, who was an avid proponent of ratification and quite unfriendly towards the principles of limited government, nevertheless supported this notion. During the New York ratification debates Hamilton said, “The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
In Federalist 33 Hamilton said that the “acts of the (federal government) which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such.” Hamilton also said, “the state governments possess inherent advantages, which will ever give them an influence and ascendency over the national government, and will forever preclude the possibility of federal encroachment. That their liberties…can be subverted by the federal head, is repugnant….”
Here we have the answer for who has the authority to stop the federal government’s forays into unconstitutional areas. It is the states that provide the essential check that protects the rights of the people. How are the states to check instances of federal overreach? By simply treating them as “acts of usurpation” and deeming them to be “no longer supreme or binding.” In other words, by nullification.
By answering three questions we have been able to build a case for nullification that is entirely consistent with the Constitution as it was sold to the states. We have even done this without quoting Thomas Jefferson or James Madison, the original nullifiers. We have merely made a logical conclusion based on ideas and words pulled directly from the Constitution and its proponents.
No matter the crocodile tears shed for the tattered Constitution by the anti-nullifiers, nullification is quite clearly a constitutional concept.
The critics of nullification show their true colors by criticizing the one movement that actually shows promise in holding the federal government to its constitutional limitations. When we hear their arguments we should remember that they are much more concerned with the continued growth of centralized power than they are about returning the Constitution to its rightful place.