Nullification: Essential Documents

Introduction

The legal basis for nullification goes back to our nations beginning. After having suffered dearly from the unchecked central government of Great Britain, the founders of our nation were deliberate and intentional in forming new government. They were reluctant to once again establish a central government for fear of government tyranny taking away what so many of them had already given their lives to secure.

Ben Lewis, a Nullify Abortion contributor, has compiled a list of essential documents that establish the framework as well as solidify the legal basis for the act of states nullifying unconstitutional acts.

We welcome your questions in the comments below, or, on social media.

 

The Articles of Confederation

http://avalon.law.yale.edu/18th_century/artconf.asp

Commentary

The first document establishing a general government among the individual states, the Articles of Confederation is essential to understanding the political landscape of early America, specifically the understanding the states had of the general government’s power—and their own.

Key Passage

Article II: “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.”

The Constitution of the United States of America

http://avalon.law.yale.edu/18th_century/usconst.asp

Commentary

The Constitution is often perceived as an entirely unique document, with some Americans going so far as to claim that it was divinely inspired. But the truth is more mundane, as it represented the attempt of some early Americans to greatly strengthen and energize what would become the federal government. The document is notable, however, for its failure to do as the Constitution’s opponents, the so-called Anti-Federalists, succeeded in placing significant limitations on what the federal government would be permitted to do.

Key Passage

Article I, Section 8, which lists the legislative powers that the federal government would have. Any power that was not listed was understood, implicitly through prevailing legal theory and explicitly through the Constitution’s proponents, to remain with the states to be exercised at their discretion.

The Bill of Rights

http://avalon.law.yale.edu/18th_century/rights1.asp

Commentary

The Bill of Rights was more than just the first ten amendments to the Constitution. Without assurances that limitations on the federal government’s power would be clarified in this way, it is unlikely that the Constitution would have reached the number of ratifying states needed to make it the law of the land. The remarkable aspect of the Bill of Rights is that each amendment was intended to clarify a limitation on the federal government only. These ten amendments are thoroughly federalist in nature, that is they fully indicate a desire to limit the scope of the federal government.

Key Passage

Amendment X: “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.”

Thomas Jefferson’s Opinion on the Constitutionality of a National Bank

http://avalon.law.yale.edu/18th_century/bank-tj.asp

Commentary

In 1791, President George Washington was attempting to decide whether or not to sign legislation that would establish a national bank. To help him make up his mind, he solicited the opinions of Alexander Hamilton, the bank’s key proponent, and Thomas Jefferson. Hamilton appealed to a range of argumentation that would become familiar to subsequent generations of centralizers. Jefferson, however, submitted his opinion that the bank was not constitutional because it was not a power delegated by the states to the federal government. In the end, Hamilton prevailed, despite Jefferson’s being correct.

Key Passage

“I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

The Kentucky & Virginia Resolutions of 1798

http://avalon.law.yale.edu/18th_century/jeffken.asp

http://avalon.law.yale.edu/18th_century/kenres.asp

http://avalon.law.yale.edu/18th_century/virres.asp

Commentary

It took less than a decade after the formation of the federal government for the first major constitutional crisis to arise. In 1798, with tensions between France and England impacting United States politics, President John Adams and the Federalist Party enacted the Alien and Sedition Acts that, among other things, made it illegal to criticize the president and anyone in his party. The Republican Party, recognizing the unconstitutionality of these Acts, decided that a response was needed. But rather than protest at the federal level, two states decided to oppose this unconstitutional legislation within their states - and they called upon two veterans of the American Revolution to pen their resolutions of defiance. With Thomas Jefferson writing for Kentucky and James Madison writing for Virginia, the states’ enunciated, for the first time, the ideas of nullification and interposition. While Jefferson and Madison were the first to coin these terms, they were drawing on ideas with deep roots in American political philosophy.

Key Passages

Jefferson’s First Draft:

“...whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

Kentucky Resolution:

“...the principle...that the general government is the exclusive judge of the extent of the powers delegated to it, stop(s) nothing short of despotism; since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers.”

Virginia Resolution:

“...in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the (Constitution), the states...have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

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