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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. - Tenth Amendment
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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. - Tenth Amendment • "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” - Articles of Confederation
A State, through its executive, legislative or judicial branch establishes that a federal law is unconstitutional Interposition
A State intercedes between its citizens and the Federal Government by refusing to submit to a Federal law or regulation it deems unconstitutional The State resolves to prevent implementation and enforcement of nullified laws Nullification
The principle of nullification is inherent in the legal and philosophical foundations of the Declaration of Independence and the Constitution When under this principle the federal government infringes upon the rights of the People, it is not only their right but their duty to use the State government as the instrument of redress to restore their rights Origins of Nullification
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” - James Madison, Federalist 45
Principles of '98 Kentucky and Virginia Resolutions • Drafted by Thomas Jefferson and James Madison • Political thought from the ratifying convention and also in response to the Alien and Sedition Acts • When the federal government acts outside of its delegated, enumerated powers, it is a usurpation • Therefore, the states are duty bound to interpose or nullify an unconstitutional act, which then upholds the Constitution and maintains the compact
Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution For the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force . . . That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, aswell as of infractions as of the mode and measure of redress.
…that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact...they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever. That they will view this as seizing the rights of states, and consolidating them in the hands of the general government, with a power assumed to bind the states...not merely in cases made federal, but in all cases what-soever, by laws made, not with their consent, but by others against their consent; that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-states, recurring to their natural rights not made federal, will concur in declaring these void and of no force..
Virginia Resolutions of '98That this Assembly...views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case 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 duty bound, to interpose, for arresting the progress of evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them. Kentucky Resolutions of '99 ...That the several states who formed that instrument, [the Constitution] being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy...
Past Examples of Nullification • Alien and Sedition Acts - freedom of speech • Military conscription - state control of the militia • Tariff and Embargo Acts - free trade • Fugitive Slave Act - human rights
Nullification Today 10th Amendment Resolutions Firearms Freedom Act State Marijuana Laws Health Care Nullification Act REAL ID Health Care Freedom Act Defend the Guard Constitutional Tender Cap & Trade/EPA Federal Tax Funds Act Sheriffs First Legislation Federal Gun Laws Intrastate Commerce 10th Amendment Bills TSA Current Efforts: 11 states have introduced a Federal Health Care Nullification Act in 2011. 19 states have introduced a Health Care Freedom Act in 2011.1 state has passed into law 7 states passed a Health Care Freedom Act in 2010. Potential Future Efforts: Patriot Act No Child Left Behind Model Legislation available at www.tenthamendmentcenter.com
Real ID Nullification Legislation Nullification does not need all 50 states to be effective.Led by Maine in early 2007, 26 states over the past 2 years have passed resolutions and binding laws denouncing and refusing to implement the Bush-era law which many expressed concerns about privacy, funding and more. While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void. Legend: Blue – Introduced Yellow – Passed one or more houses Green – Passed both houses Red – Passed as Law. http://www.tenthamendmentcenter.com/nullification/real-id/
Problems with Repeal • Either the House or Senate can delay a repeal process • President will likely Veto repeal legislation • While we wait for repeal, the implementation of unconstitutional federal “law” and the ill effects and hardships imposed on the People of the States begin • Unsuccessful full repeal or partial repeal is not an acceptable outcome when challenging a federal usurpation
The Falsehood of Federal Judicial SupremacyThe Constitution does not make the federal supreme court the final arbiter nor is it the sole, exclusive authority on whether a federal law is constitutional. The States did not create a centralized government that would have the authority to decide for itself the limits of its own powers, nor did not give up their right to judge the constitutionality of federal laws.The federal supreme court was to decide, as the last resort, disputes among the authorities of the other two branches of the federal government, not in relation to the rights of the parties to the constitutional compact and the federal government. The “parties to the constitutional compact” being, of course, the peoples of the states.Ref: Madison's Report of 1800, Marbury v. Madison -1803, 'Principles of '98' , Ratifying Debates
Nullification Fallacies • Nullification is not secession or insurrection • It does not need any decision or action from any branch of the federal government • It is not the result of obtaining a favorable court ruling • It is not petitioning the federal govt. to start or stop anything • It doesn't depend on any federal “law” being repealed • It doesn't require permission from anyone or any institution outside of one's own state
The New Jersey Legislature • Nullification can be an effective tool for the State of New Jersey to restore the proper Constitutional limits on the federal government and preserve our liberties. • The election of 'Constitutional candidates' this November is vitally important and essential to having nullification legislation introduced and passed into Law in New Jersey. • Every effort must be made to achieve victory for our candidates in the upcoming elections. • These representatives must adopt nullification as mandated by the People of New Jersey
NATIONALIST VIEW· single sovereign people · unitary state · monopolistic central authority source of all power · lesser bodies (states) derive their own power from central authority · Constitution preamble " We the People" (not the states)COMPACT THEORY· states are their own sovereign· Constitution ratified by state conventions· delegated small number of enumerated powers· remaining powers for themselves· original preamble "We the states of New Hampshire etc. (occurred to framers that not all states needed to ratify, some may not. Changed to "We the People”)
FEDERALISM and DUAL SOVEREIGNTY - decision by ultimate sovereigns (the states) to vest different powers in states and national government · divergent local circumstances - our nation is diverse, a national one size fits all cannot take into account these differences · need for experimentation & competition in policy making - states operate as "laboratories" of government & policy · monitor those entrusted with power - state legislators can be monitored, closer to the people · ensure power is fully diffused - horizontal checks and balances (executive, legislative, judicial) and vertical checks (no one man or level of government accumulates power)
