During a speech in support of Ken Cuccinelli's now-failed gubernatorial campaign, Ron Paul (shown with Cuccinelli on right) predicted the increase in state resistance to federal overreach.
“I’ve been working on the assumption that nullification is going to come. It’s going to be a de facto nullification if it’s not legalized. Because pretty soon things are going to get so bad that we’re just going to ignore the feds and live our own lives in our own states,” Paul told a cheering crowd gathered in Richmond, Virginia on November 4.
“Why should we grant this authority to a few thugs who want to take over the government to make all our decisions for us?” he added later.
True to form, when the state-run media — in this case, MSNBC — learned of Paul’s statement in favor of state sovereignty, they quickly associated the subject with slavery and racism.
"Paul pegged his “nullification” talk to the famous Virginian who’s credited with coining the concept: Thomas Jefferson. But the term has a particular controversial history in the South, having been used by segregationists rejecting federally mandated desegregation during the civil rights movement," the MSNBC report says.
Not to be outdone, in a report on the former Texas congressman’s speech, Politico informs readers that nullification is a concept “brimming with connotations” of connections with the Confederacy.
MSNBC and Politico, as members of the mainstream media, are comfortable with not having to provide any historical context for their claims. It’s a good thing, too, because when it comes to the relationship of slavery to nullification, the latter was one of the most potent weapons in the arsenal of abolitionists.
Consider the case of Abelman v. Booth. The story of this little-known case was recounted by The New American in an article published in May.
In 1854, Wisconsin rejected the federal Fugitive Slave Act, which mandated Northern states return Southern slaves without due process, demonstrating both the validity and usefulness of nullification.
When Georgia joined the Confederacy and seceded from the union on January 29, 1861, a state convention explained the state’s reasons for separation. Georgia singled out Wisconsin’s Supreme Court for particular excoriation because this court had the temerity to declare null and void within the state of Wisconsin the Fugitive Slave Act of 1850. This federal law — a part of the Compromise of 1850 between Southern states where slavery was legal and Northern states where it was not — required that runaway slaves, upon capture, be returned to their masters. The subsequent U.S. Supreme Court unanimously upheld the constitutionality of this law, overturning the Wisconsin Supreme Court decision, the Georgia convention noted. Not only that, but Wisconsin’s “own local courts with equal unanimity (with the single and temporary exception of the supreme court of Wisconsin), sustained its constitutionality in all of its provisions.”
Dismissing MSNBC’s incorrect interpretation of nullification as something one would expect of such an organization, the question becomes can nullification be used as an effective tool to dismantle federal despotism, including ObamaCare?
As ObamaCare has rolled out, the specter of such widespread manipulation of the country’s medical care system by way of the ObamaCare legislation’s uncountable layers of bureaucracy was a primary impetus for state attempts to stop enforcement of the federal healthcare leviathan at state borders.
Nullification, state lawmakers across the country argue, is the way to save citizens from suffering the ravages of ObamaCare and its legal plundering of the middle class.
Nullification is a concept of constitutional law that recognizes 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.
This power is founded on the assertion that 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.
All state legislatures have an obligation to liberty and to their citizens to guard the powers explicitly reserved to them under the 10th Amendment. If our constitutional Republic is to be held together, states should recognize and exercise their natural right to rule as sovereign entities, stopping ObamaCare at the state borders by enacting state statutes nullifying the healthcare law.
The best defense of nullification is found in Thomas Jefferson’s Kentucky Resolution of 1798. In the Kentucky Resolution, Jefferson plainly points to the constitutional source of all federal power. He wrote, "That the several states who formed that instrument, 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 colour [sic] of that instrument, is the rightful remedy.”
Opponents of state opposition to ObamaCare (and of nullification in general) point to the so-called Supremacy Clause of Article VI of the Constitution to rebut the state's claims. They argue that state laws contrary to federal laws are invalid and that federal law trumps all state attempts to legislate in territory already claimed by Congress.
This argument, as the previous one associating nullification with racism, is easily dismissed.
The Supremacy Clause (as some wrongly call it) of Article VI does not declare that laws passed by the federal government are the supreme law of the land, period. What it says is that the “laws of the United States made in pursuance" of the Constitution are the supreme law of the land.
In pursuance thereof, not in violation thereof. None of the provisions of ObamaCare is permissible under any enumerated power given to Congress in the Constitution; therefore, they were not made in pursuance of the Constitution, and they are not the supreme law of the land.
State legislators flexing their sovereign muscle (one that has nearly atrophied) are in good company in their concept of the enforceability of unconstitutional federal legislation.
In The Federalist, No. 33, Alexander Hamilton declared that any act of the federal government exceeding the limited powers granted it by the Constitution is not a law at all:
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.]
Hamilton is not alone. The undeniable truth is that not a single one of our Founding Fathers, not even the most ardent advocate of a powerful central government, would have remained even one day at the Philadelphia Convention if he had believed that the government they were creating would become the instrument of tyranny that it has become.
All state legislatures have an obligation to liberty and to their citizens to exercise the 10th Amendment and the powers granted to them as sovereign entities, to stop ObamaCare at the state borders by enacting state statutes nullifying the healthcare law.
Or, as Ron Paul declared during the speech in Richmond, “We need someone to stand up to the authoritarians. They’re dictators.”
Photo of Ron Paul with Ken Cuccinelli on right: AP Images