Nullification: A Proper Remedy To Federal Overreaching
by JBS President John F. McManus
Is there any recourse when federal power exceeds its constitutional bounds? Do the people and the states have to accept whatever the federal government dictates? What can be done in the face of federal overreaching?
One generally forgotten answer to the above questions is the process known as “nullification.” It holds back federal power, even cancels any excesses federal officials (in all three branches) require of the people and the states.
Nullification involves a state formally telling the federal government that a particular measure it has handed down will not be obeyed. This isn’t anarchy; it’s common sense. It starts with the seemingly forgotten truth that the states created the federal government, not the other way around. When the states agreed to build a federal government, they didn’t give up their sovereignty. They ceded some powers to a central government and retained the rest.
The Tenth Amendment makes this point very clearly: “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.” Only the powers awarded to the federal government by the Constitution are legitimate; any overstepping of those delegated powers is illegitimate. Should the federal government exceed its properly delegated authority, a state through its legislature has the right to say, “NO!” Without such a right, states could be taken into tyranny.
In 1799, Thomas Jefferson was asked to help in composing what became known as “The Kentucky Resolutions.” Having been welcomed as the 15th state in 1792, Kentuckians wanted to define more clearly what relationship existed between themselves and the federal government. In the Kentucky Resolutions, one can read, “Resolved: That a nullification, by those sovereignties of all unauthorized acts done under the color of that instrument [the Constitution] is the rightful remedy.” Jefferson wrote that for his friends in Kentucky and they happily accepted and published it as their own thinking.
Later, in 1834, James Madison issued his “Notes on Nullification.” He stated: “…nullification of a law can … belong rightfully to a single state as one of the parties of the Constitution; the state not ceasing to avow its adherence to the Constitution.” In other words, refusing to accept the dictates of the federal government is the right – even the duty – of a state. And doing so does not in any way distance the state from the Constitution.
With both Madison who has rightly been named “the Father of the Constitution” and Jefferson on the side of nullification as a proper remedy for federal government excess, no one should deny its use in these troubling times.
Moves are underway in several states to issue decrees nullifying portions of ObamaCare – if not the entire measure. Lovers of liberty will support such moves without hesitation. And once many more Americans become aware that nullification is the proper and useful procedure available to rein in a voracious federal government, liberty will have been given a new – and much needed – boost.
For resolutions you can share with your state legislators on a variety of issues, check out our action projects at JBS.org.