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Wednesday, February 20, 2013

Nullification in a Nutshell

Ground work
There has been a great debate in Idaho and in the nation about Thomas Jefferson's doctrine of nullification. Many are confused about what it means. Some are afraid that nullification is the same as secession, while others have simply bought into the false notion that the Supreme Court is the final arbiter of Constitutional law. Unfortunately for them, it's not that simple, but at the heart of the nullification debate is the question of states rights.

What are states rights? Well, though they have been debated hotly at times, they are not listed anywhere. So, what are the specific rights that each state has? Note: I do not say, what are the specific rights each state has under the constitution because the constitution is a restrictive document. Article I, Section 10 of the Constitution is titled "Powers Prohibited of the States" and includes a list of actions states may NOT take. Article IV, on the other hand, pertains to each state's interaction with other states including new states, and requires the federal government to supply the states with certain necessities like defense against invasion. Any rights a state may have are not even mentioned until the 10th amendment: "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." But, here it refers to "powers," not rights, so, again, what are the specific rights that each state has?

James Madison hinted at them when he said, "The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general." Still, there is no listing of specific rights, only a mention of "powers." We only learn that the founders thought the state governments were to have more power than the centralized national government. Yet, that does tell us one thing: state governments have more powers of governance than does the federal government which the founders viewed as a tool to unify the individual states to permit them to do that which they themselves could NOT do on their own.

So, states have more "rights" than the federal government, yet we still don't know exactly what they are. Well, there's good reason for that. Governments do not have rights. They have duties, responsibilities, and powers, but not rights. The notion that states have rights comes from the fact that the 10th amendment is included in the Bill of Rights. It is a simple misunderstanding.

Because individuals are given unalienable rights by their creator, individuals, and only individuals, have rights. Still, states are a representation of a group of individuals found within a given geographical border. When we refer to states rights, then, we are actually referring to the rights of those individuals within a given geographical state. While we know that the Bill of Rights enumerates some rights, the ninth amendment declares: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This means that people have not only the rights identified in the Declaration of Independence and the Bill of Rights, but that they have numerous additional rights that have never been written down anywhere.

The Nutshell
Consequently, as collections of individuals who have rights, states then inherit some rights from the people. Among these are the right to create and enforce what laws the people deem necessary and proper. Inherent in this is the right to reject federal laws as being inappropriate, unjust and unconstitutional even on the simple basis of "that will not work for or among the people of this state." The 10th amendment holds this principle inviolate.

Is it your right as an individual to disregard unjust and unconstitutional federal law? If it is, an individual cannot hope to do so alone. Even reasonably large groups of people will have difficulty defying federal law in such a manner. Still, the more, the merrier. Consequently, when would-be free peoples of a state come together and put their foot down on unjust and unconstitutional federal laws, the state is then duty bound to intercede on their behalf, and that is the essence of nullification. Without this ability, what the federal government decrees becomes the law of the land, states cease to serve a function and so need not exist, and the people become subjects to a despotic government no matter what else it may appear to be. When seen in this light, we realize that the 10th amendment of the United States Constitution has neither efficacy nor force without the doctrine of nullification.

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