A reader and listener of mine sent me an email asking me my opinion of an article titled “Nullification is a Natural Right!” by a writer at Renew America that goes by the moniker Publius Huldah. The article is a good article, but I did have a few things to say about it that may be construed as criticisms.
Nullification is a very valuable tool, but not the only tool. The article by Publius Huldah suggests that nullification is all we need to turn this thing around, and her article presents a valid argument supporting the concept of nullification. She specifically challenges amending the Constitution, a specific stab (I believe) at the concept of an Article V. Convention. The problem is that people that support nullification tend to criticize convention as a tool, and those that support convention tend to criticize nullification as a tool, and the reality of it all is that both are very important cogs in the overall machine.
The article, “Nullification is a Natural Right!”, is a fairly good one, but it does have a small collection of minor flaws.
Where the article says the federal government is given the authority of “road building,” the truth is the only time roads are expressly mentioned in the Constitution is regarding “establishing” post roads. In fact, in 1817 President James Madison vetoed a public works bill because federal funding of roadways and boatways are not a granted enumerated power. That tells us that the federal highway system is unconstitutional, and should have either been authorized by amendment, or the building and maintenance of such a massive highway system should have been left to the States to accomplish.
Immigration is not mentioned in Article I, Section 8 as Publius Huldah suggests, though Naturalization is. Immigration is provided for in Article I, Section 9, where it allows the federal government to prohibit such persons from migrating into the United States through the passage of legislation.
That said, the heart of the article is nullification, and the truth is, nullification is a valuable tool. Nullification, however, it is more than merely a natural right. Nullification is a duty and obligation of the States. My only “quibble” with the “Nullification is a Natural Right!” article, aside from the two things I listed above, is that it doesn’t fully explain (though it makes a valiant effort in its attempt) “why” nullification is something the States can, and ought, to do.
To understand nullification, we must understand the basic foundational nature of the Constitution. The United States Constitution is a social contract, not much unlike any other contract one might enter into. The States wrote the contract through their delegates, and ratified the contract, so as to create a federal government to serve the States, and handle the external issues the States individually may not be able to handle. These “authorities” to the federal government, as the article by Publius Huldah so carefully explains, are expressly enumerated, and the powers of the federal government are limited to those enumerated authorities.
The contract is much like a contract you may have with a construction company to add a room to your house. As the initiator of the contract, your rights regarding the contract are vast. If the construction company was to breach the contract, you have the right to reject their non-contractual actions, and to demand that they abide by the contract. The States have the same allowance (called nullification) as the originators of their contract called the Constitution.
Could you imagine if you hired the construction company to add that room to your house, and then when you came back from lunch they were mowing your lawn and sweeping your walkway? “Hey,” you would say, “landscaping is not in the contract.”
What if they responded, “We interpreted the contract to say we can, and we are going to charge you extra for it. Arguing will serve no point, for our lawyers also say we can do as we please.”
That is what is going on. The States wrote a contract with specific duties enumerated to the federal government, but in the name of “interpreting” the Constitution, the statists have decided to do things not in the contract, charge us extra for it in taxes, and then claim their lawyers (the federal court system) says they can do it and there’s nothing we can to about it. The problem is, We the People, poisoned by a couple centuries of erroneous information (by design), have failed to recognize the unconstitutionality of the actions and laws by the federal government.
As the writers of the contract, We the People, through our States, must be well-versed in the language of the contract, and we have the right, duty, and obligation to nullify (refuse to abide by and implement) actions and laws by the federal government that are not specifically granted to the federal government by the United States Constitution.
New authorities to the federal government can only be achieved by amending the Constitution, and those proposed amendments must be ratified by at least 3/4 of the States (in other words, the federal government cannot have additional authorities unless the States approve of it).
Thomas Jefferson in his draft of the Kentucky Resolutions wrote that nullification is a valuable tool, and Madison (regarding the nullification crisis) explained that when nullification is applied properly it is the State’s way to “defeat the federal government’s schemes of usurpation.”
Now, that all said, just because nullification is such a valuable tool, and an obligation that we need to put into action when the federal government is acting in a tyrannical manner, that does not mean that an Article V. Convention is not an important cog in the overall machine, as well.
The 11th Amendment was proposed and ratified to reel in a federal court system that, during Chisolm v. Georgia, challenged the sovereignty of the States. The 11th Amendment, therefore, serves as an example of how We the People can use amendments to reduce the size of government. The problem is, government constantly expands, but never voluntarily reduces in size, therefore, there should be no expectation that Congress would propose amendments that would serve to limit the expansion, or the power, of the federal government. That is where an Article V. Convention becomes a valuable strategy in reeling in the size of government. Convention allows the States to propose amendments (amendments that may reduce the size of government, of which Congress would never conceive of proposing), and then for the State Legislatures to ratify the proposed amendments with a 3/4 approval. I understand the fears of those that feel such a convention could become a runaway convention, but in Federalist 85, Alexander Hamilton lays down a pretty good argument that explains the 3/4 ratification requirement is a valid fail-safe against such a potential crisis.
There are other cogs in the machine regarding restoring the republic, as well, that should not be ignored. The threat of secession by the States (because the States are voluntary members of the union, and have a right to exit a contract that has been breached), an armed citizenry (“necessary to the security of a free State), the effectiveness of a peaceful revolution (such as the Tea Party), and a Republic Review (an audit of the federal government by a grassroots movement that applies originalist constitutional definitions to existing federal functions and agencies to determine their constitutionality) are all also very important tools on our tool belt.
Is nullification a greater tool than all of the others? Perhaps it could be seen that way by some. But, without a Republic Review, which may be an integral part in determining what should be nullified (remember, our State leaders are not exactly experts on the Constitution), restoring the republic may be a difficult row to hoe. In other words, the different tools we have are not supposed to compete with each other for a position of dominance, but act in a complimentary manner. A peaceful revolution may lead to a Republic Review, which may lead to nullification and/or an Article V. Convention, which may then lead to a proper restoration of the republic.
The article by Publius Huldah is essentially correct, but places nullification on a pedestal above all other tools available to us, and the writer refuses to include the value of the other tools available to us. And, as I stated earlier, “Nullification is a Natural Right” begins with hostility towards amending the Constitution as a tool to reel in the federal government. I largely agree with the points presented in the article, but I don’t believe nullification is the only strategy we should be using, or that all of the other tools are to be avoided like the plague.
The drive to restore the republic is not a quick fix, and even if we utilize all of the tools I have listed, none of them mean anything if We the People are not eternally vigilant, or if We the People are not morally centered. After all, as the Declaration of Independence reminds us, we must have a “firm reliance on the protection of divine Providence.” So, yes, nullification is a natural right, but it is a complimentary tool on a tool belt populated by a number of other tools. And the tool belt itself, though filled with a number of important constitutional tools, is nothing without our loins being girt about with truth, without a breastplate of righteousness, without our feet shod with the preparation of the gospel of peace, without the shield of faith, without the helmet of salvation, or without the sword of the Spirit, which is the word of God.