Thursday, 24 January 2013 17:42

Legal Experts Call Nullification Unconstitutional and Seditious

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“The states can’t simply choose to defy and override a valid federal law.” That’s law professor Allen Rostron’s opinion of the spate of state efforts to thwart federal attempts to infringe on the constitutionally protected right of citizens to keep and bear arms.

Rostron makes this statement in a recent article published by the Kansas City Star.

The right of states to refuse to enforce unconstitutional federal acts is known as nullification.

Nullification is a concept of constitutional law recognizing the right of each state to nullify, or invalidate, any federal measure that exceeds the few and defined powers allowed the federal government as enumerated in the Constitution.

Nullification exists as a right of the states because the sovereign states formed the union, and as creators of the compact, they hold ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof.

As President Obama and the United Nations accelerate their plan to disarm Americans, the need for nullification is urgent, and liberty-minded citizens are encouraged to see state legislators boldly asserting their right to restrain the federal government through application of that very powerful and very constitutional principle.

One would expect that Rostron, being a professor of law, has read the Federalist Papers. In fairness, he probably has, but perhaps he overlooked Federalist, No. 33, where Alexander Hamilton explained the legal validity of federal acts that exceed the powers granted to it by the Constitution. Hamilton wrote:

If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.... But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. [Emphasis in original.]

Rostron denies that states have the right to withstand federal tyranny and argues that the Constitution declares federal acts to be the “supreme law of the land.”

His comments echo a common misreading and misunderstanding of Article VI of the Constitution, the so-called Supremacy Clause.

The Supremacy Clause (as some wrongly call it) of Article VI does not declare that federal laws are the supreme law of the land without qualification. What it says is that the Constitution "and laws of the United States made in pursuance thereof" are the supreme law of the land.

Read that clause again: “In pursuance thereof,” not in violation thereof. If an act of Congress is not permissible under any enumerated power given to it in the Constitution, it was not made in pursuance of the Constitution and therefore not only is not the supreme law of the land, it is not the law at all.

Constitutionally speaking, then, whenever the federal government passes any measure not provided for in the limited roster of its enumerated powers, those acts are not awarded any sort of supremacy. Instead, they are “merely acts of usurpations” and do not qualify as the supreme law of the land. In fact, acts of Congress are the supreme law of the land only if they are made in pursuance of its constitutional powers, not in defiance thereof.

Hamilton put an even finer point on the issue when he wrote in Federalist, No. 78, “There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”

Once more legislators, governors, citizens, and law professors realize this fact, they will more readily and fearlessly accept that the states are uniquely situated to perform the function described by Madison above and reiterated in a speech to Congress delivered by him in 1789.

"The state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty," Madison declared.

State lawmakers are catching on, and nullification bills stopping federal overstepping of constitutional boundaries have been proposed in at least two dozen states. These measures nullify not only the impending federal gun grab, but the mandates of ObamaCare and the indefinite detention provisions of the National Defense Authorization Act (NDAA), as well.

Legal analyst for 60 Minutes Andrew Cohen sees sedition in such state acts of nullification and calls them “patently unconstitutional.

It appears that we have arrived at a time in the history of our Republic when the author of the Declaration of Independence (Thomas Jefferson) and the “Father of the Constitution” (James Madison) are considered enemies of liberty. 

In the Kentucky and Virginia Resolutions, Jefferson and Madison declared their allegiance to the union, but insisted that states have the right — the duty — to interpose themselves between citizens and federal despotism.

In a blog post, Thomas Woods, author of Nullification: How to Resist Federal Tyranny in the 21st Century, points to Cohen’s patently incorrect view of the origin of our Constitution. He writes,

Of course, the “sedition” talk begs all the relevant questions and assumes federal supremacy as we know it today to be the correct position. It pretends the compact theory of the Union doesn’t exist, or that violence could have reversed it.

The compact theory of the Union mentioned by Woods holds that the consent of the states created the Constitution and thus created the federal government. This act of collective consenting is called a compact. In this compact (or contract), the states selected delegates who met in Philadelphia in 1787 and conferred some of the powers of the states to a federal government. These powers were enumerated in the Constitution drafted at that convention and the Constitution became the written record of the compact.

This element of the creation of the union is precisely where the states derive their power to nullify acts of the federal government that exceed its constitutional authority. It is a trait woven inextricably within every strand of sovereignty, and it was the sovereign states that ceded the territory of authority which the federal government occupies.

Again, a law professor rides to the rescue of the falsehood of absolute federal supremacy.

The U.S. Supreme Court has “made it indisputably clear that if there is a conflict between valid federal law and a state constitution, the federal law prevails,” writes Stephen McCallister in an article in the University of Kansas Law Review published in 2011.

Actually, what is indisputably clear is that a correct understanding of the history of the creation of the union and the Constitution teaches that the people and the states retain the power to put a stop to any attempt by the federal government to revoke the right to keep and bear arms or any other inalienable right which, in the beginning, was a gift of God, not government.

 

Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels frequently nationwide speaking on topics of nullification, the NDAA, and the surveillance state. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

7 comments

  • Comment Link Lazarus Friday, 01 February 2013 17:39 posted by Lazarus

    In the spirit of Brian's comment, here's a quote from John Adams, 2nd President of the United States:
    "You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe."
    It was this mindset that produced our form of government. But we are far from that today. We no longer acknowledge or adhere to belief in the Great Legislator of the Universe, and thus find ourselves in a time of arbitrary law, and are descending into chaos, as so aptly predicted by Francis A. Schaeffer several decades ago. I highly recommend his book, "A Christian Manifesto", to every thinking person who cares about the direction we've taken. When you realize just how much time has passed since the writing of that book, and where we are now, it's plain scary. We really have much in common today with Germany between the World Wars. "When A Nation Forgets God", by Erwin W. Lutzer, written more recently, makes a good follow-up read.
    My last recommendation: http://www.metrolyrics.com/band-of-survivors-lyrics-twila-paris.html

  • Comment Link Sally Saturday, 26 January 2013 18:14 posted by Sally

    Thanks, Brian. That was beautifully put.

  • Comment Link Brian Friday, 25 January 2013 19:43 posted by Brian

    What MOST people don’t understand is that God gave each of us inalienable rights under Natural Law as sovereigns in our own right. We collectively consented in a compact (state Constitutions) to grant our respective states sovereignty. Our states could not have been sovereign otherwise – unless The People consented and provided such rights to it.

    Now, your state has no natural life. It is still the same state that it was when its constitution was written. The people who agreed to bestow their sovereignty to it are, however, long gone.

    You did not sign your state Constitution, voted on it, were represented by anyone to do so, nor were a party to it in any way – because you weren’t around then. Therefore, it is only presumed that you do provide consent now.

    The several States gave up some of this very same sovereignty to the Federal Government as embodied by the Constitution. It is also presumed that since (it is presumed) that you consent to giving your state sovereignty, that your state continues to give this sovereignty to the Federal government.

    Your state is likewise presumed to consent to anything the Federal Government does, unless it is not already agreed to in the US Constitution, and does not nullify it.

    What happens, though, if you, as a Natural Person, no longer give consent? The whole thing collapses in our Republic form of government – for them against you (or, similarly, your state under the 10th Amendment), that is.

    You are your own person, and you consent to whatever contracts, agreements, compacts, and even Constitutions that you want – visible or invisible (presumption).

    The following is not legal advice, it is lawful advice: If you don’t ever like what THEY are doing to YOU, then all you have to say is: “I Claim Jurisdiction Under The Common Law.” If pressed, then state: “I Do Not Consent, and I Waive the Benefits.” That’s all you have to say. If they want to continue the kangaroo court (or whatever the forum), then Object to everything you don’t like. If ever asked why you are objecting, then state: “It Is Not My Wish” (that these proceedings go on, that this is happening, or whatever).

    You are a sovereign. God gave you rights under Natural Law. You are more powerful than you realize. In fact, you are equally as powerful as any other Natural Person opponent under The Common Law – the Law of Contracts, the Law of the Land.

    Most of you have no idea what I’m talking about, because all you have wanted to do is watch the Bachelor and keep your Facebook status updated.

    I should write a book to explain to people what it means to be an American.

  • Comment Link Free Thinker Friday, 25 January 2013 16:27 posted by Free Thinker

    I wonder if this line of thinking applies to the states not complying with the Federal Immigration laws, or the states ignoring the laws regarding weed?

    Maybe these so called Constitutional superior thinkers can address that. Maybe these people can point to where in the Constitution it says the POTUS, or Congress for that matter, have the power to restrict any part of the Bill of Rights. They wont do it because they cant! They know it is unconstitutional, they don't support the Constitution. They support democracy, well this isn't a democracy, this is a Constitutional Republic.

  • Comment Link Todd Thursday, 24 January 2013 23:11 posted by Todd

    Well - here’s a little news for you, Washington - I don’t know if the states will give a backbone to their courageous sounding words - but, I will - I’m not complying. So, you better build yourself a bunch more prisons so you can be remembered long after you’re gone, because I’m not the only one saying it. And, be sure to tell that to all the communist mass murderers encouraging you, the next time you have dinner with them. I hear they’re good at making prison camps - perhaps you can get some advice from them. But, I didn’t kill those children at Newtown - and I’ll be damned if I pay the price of my freedoms, for the one that did. And if you want to call me an absolutist, or an extremist, while standing along side of the mass murderer governments and the mainstream news stooges who are doing the same - well, go ahead - that’s only a medal on honor for me.

    So, I guess I’m the fool then; fighting for his own shackles to wear.

  • Comment Link Todd Thursday, 24 January 2013 22:54 posted by Todd

    If nullification is unconstitutional, why bother to have states then ? The rules from the king are absolute. What was that word the king used ? It sounded very similar.

    Is impeachment also unconstitutional ? Why should there be a provision for removing a bad president ?

  • Comment Link R Jensen Thursday, 24 January 2013 21:27 posted by R Jensen

    All you need to do to shut up someone like Rostron is to ask him whether he thinks it was unlawful for the Northern states to nullify the Fugitive Slave Laws by not allowing them to be enforced.

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