For those of you who weren't there, you missed an excellent meeting on Interposition vs Nullification. A panel discussion with Glen Bradley, former NC House Representative, Jeff Lewis from Patriot Coalition and The Intolerable Acts, and Phil Routszong, Crystal Coast Republican Liberty Caucus, gave us some very valuable information!
Hope to see you next month: April 16th. 7 PM at the BridgePointe for an update with experts on Obamacare!
Glen Bradley Presentation
Our terms and definitions have become slippery and malleable over the years
The words nullification and interposition as they were originally conceived have become twisted into something else entirely.
The current nullification movement is at once an effort to apply the rightful Constitutional remedy provided by James Madison and Thomas Jefferson to address the problem of runaway federal encroachments of power, and to reclaim the terms once distorted by John C. Calhoun into something else entirely.
For some background into the confusing state of the debate before digging into the meat of these measures,
Thomas Jefferson and James Madison proposed and passed the Virginia and Kentucky Resolutions in response to the Congressional Alien and Sedition Acts. These resolutions were at once statements of noncompliance as well as a judgement of the Congressional Acts as unconstitutional, and directions to the States' Congressional delegations to work repeal of these offenses.
The Kentucky resolution specifically described the Acts as "utterly void and of no force" which law was described as 'null' and therefore the term 'nullification.'
Now, John C. Calhoun around 1830 took up the idea of nullification and morphed it into something else entirely, a single-state veto. His argument being if a single state claimed that a federal law was void, then that federal law de-facto no longer existed, or was vetoed by the sovereign State. Madison, still around at the time vehemently disagreed with that position, and rightly so. Were Calhoun correct, then any State Legislature could simply pass a resolution rejecting any given federal law whether constitutional or not, and before long there would no longer be any sort of federal government in existence.
Sometimes, as activists trying to advance these measures - particularly in the State of North Carolina - it can feel like we are banging our heads against a brick wall. It is almost as if we are speaking a completely different language than the people we are talking to. Well, we are.
The problem we encounter now, in our modern era, is that proponents of nullification and interposition are working from the Jefferson-Madison definitions, while opponents of nullification are working from the Calhoun definition. This should help to explain why when we talk to some people about the doctrine, they seem to immediately jump to 'secession,' which proper Jeffersonian nullification seeks to actively prevent.
What we must bear in mind when bringing these issues to other activists or State Legislators, is that while proponents and opponents of nullification are using the same WORD, the opponents of nullification are actually talking about the deeply flawed "Single State veto" proposed by John C. Calhoun in 1830.
To be honest, when all of this began to crop up in 2009, we probably should have picked a different set of terms, given that the Calhoun episode came to be known as "the nullification crisis," this confusion should have been seen as inevitable. However, four years in the die is set, and we are working with the terms that we have before us.
Constitutional foundation of Nullification:
The primary Constitutional foundation of Nullification is found in Article 6 of the US Constitution. One major error we make as activists working to promote these measures, is to cite the 10th Amendment as the primary justification, when in reality it is more like supporting documentation to what is already found in Article 6.
On a practical basis, starting from the 10th Amendment a nullification opponent will immediately jump to Article 6 and then we are left to say "well, Article 6 allows it anyway" whereupon we have already lost the argument. Instead, we need to make the case from Article 6 directly, cut the opposition off at the knees, and then support the conclusion with the 10th Amendment.
If anybody has their copy of the US Constitution handy, now would be a good time to open it to the Article 6 Supremacy Clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Allow me to direct you attention to the clause "in Pursuance thereof."
This is a precise legal term that has a very well defined meaning in jurisprudence. A policeman can enter your home without permission only PURSUANT to a judicial warrant.
It means, consistent with, to follow from, in agreement or conformity with. To do an act pursuant to the law is to conform to the requirements of a statute. In this context, only those laws which conform to the US Constitution are the supreme law of the land.
That, in a nutshell is the entire proper Jeffersonian doctrine of nullification.
If a federal law is NOT pursuant to the text or the enumerated powers of the Constitution, then that law is NOT the supreme law of the land, and the several States are free to ignore it at will.
While the pursuance clause of the of the Supremacy clause should in and of itself be clear enough for anybody who has studied law, or who has a firm grasp of the English language, the antifederalists knew that a time would come when vain men would seek to usurp the rightful powers of the States and the citizens, so they included in the Bill of Rights the 9th and the 10th Amendments to describe the proper delegation of powers, in support of this concept so as to eliminate any possible confusion.
Turning now to the Tenth 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."
This is simply a very precise way of saying that if the Constitution doesn't give Washington a certain power, that Washington doesn't have that power. Most of you will have already picked up that this is just re-stating the very same exact thing I spoke of with the pursuance clause of the supremacy clause in Article 6.
To deny Washington DC any powers that are not explicitly authorized in the text of the Constitution does not even require the existence of the Tenth Amendment, it is found in it's entirety in the very Article 6 Supremacy clause that most lawyers will cite to claim that the the 10th Amendment is invalid, or irrelevant. Clearly, that is not the case. To that end, when we go about our political activism working to advance these measures that have been called nullification in our modern era, I would suggest making the bulk of the argument directly from Article 6, and only relying on the Tenth Amendment for supporting documentation of a doctrine found in the Constitution proper, without even needing to go to the Amendments. This will eliminate the first and foremost objection raised by opponents.
I will try to push through this next section quickly but there is a lot of information here and it's going to come out like a firehose, but in my limited time I want to cover the successful Wisconsin nullification of the Fugitive Slave Acts, as well as some of the objections you will encounter from nullification opponents, how to answer them, and I am probably going to run out of time before I really get into interposition and how that relates to both the original and the modern nullification acts.
Since proper Jeffersonian nullification is really nothing more than "Washington can't do anything that isn't listed in the Constitution" then the foremost important aspect to cover when teaching about nullification is 'what powers are listed in the Constitution that Washington CAN do?"
If you have a pen or a pencil or a highligher handy and you want to mark these sections off as I touch on them, then get it ready because I am about to push through the entire Constitution identifying every last single power granted to the federal government in the US Constitution.
First, we have to be mindful of context. Contrary to the doctrines of those who would seek loopholes to expand federal power, the Preamble to the US Constitution confers no powers to the federal government. Instead, it simply explains the purpose of the Constitution - what they hope to accomplish with the following text, or why the Constitution was written and submitted for ratification.
Article 1 Sections 1 through 7 are procedural and apply only to the operations of the Congress, there are no powers conferred to Washington to levy against the States or the people there. I do want to note in passing Article 1 Section 7 clause 1, "All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."
If there was ever a question about the fallacy of Judicial Review, then Justice John Roberts position that Obamacare was a Constitutional tax that arose from the US Senate should put that notion to rest immediately.
The actual powers of the federal government begin with the powers of Congress enumerated in Article 1 Section 8. I will not read the entire section, but if you are following along and want to mark or hilight Article 1 Section 8 here is the first place we find powers that have been delegated to the federal government in the US Constitution. These 19 discrete powers are the primary powers that Congress is allowed to exercise. This one section makes up the vast majority of Congressional power.
Before I move on I would like to call your attention to the very last paragraph in Article 1 Section 8. The "necessary and proper" clause. Here is one of the primary sections of the Constitution that big government politicians like to abuse to claim unconstitutional power. They like to claim that this clause gives them to power to make 'any necessary or proper law.' This claim should be absurd on it's face. The clause authorizes the Congress to make any laws necessary and proper for carrying out the previously listed 19 enumerated powers or any other powers granted the federal government IN the Constitution, and it only authorizes the passing of laws that carry out those listed powers. Again, this dovetails perfectly with Article 6 and with the 10th Amendment.
Section 9 mostly tells Congress what they cannot do, but the end of clause 2 it does authorize Congress to exercise a power to suspend Habeas Corpus in case of rebellion or invasion. Note that it gives this power to CONGRESS, not the President.
Section 10 lists powers that are prohibited to the States. Remember that the 10th Amendment addresses this specifically. Because the powers in Article 1 Section 10 are prohibited to the States, the US Congress does have the power to legislate these prohibitions. If they are not found in Article 1 Section 10, then Congress is not allowed to prohibit it to the States.
For the purposes of this discussion, Article 2 is very simple. The President's job is to carry out the Acts of Congress. No new powers are conferred on the federal government in Article 2.
Article 3 Section 3 defines treason and grants Congress power to establish the punishment for treason. Of particular note, nowhere in Article 3 is the Supreme Court given the authority to decide whether a law is Constitutional or not.
Article 4 does grant a few implied powers, in
- Section 1 to require the full sharing of records and proceedings between the States,
- Section 2 to require recognition of citizens from other states and to require just treatment, as well as to return those accused of crimes back to their original State for trial or to carry out their sentences
- Section 3 to govern the admittance of territories and the formation of States, and to legislate matters on properties belonging exclusively to the United States Government
- and Section 4 the power to enforce a republican form of government upon the States, and to put down insurrections.
Article 6 we've already discussed, but at the very end it grants Congress the power to prohibit the States from making religious tests for any public office in the United States government.
And Article 7 confers no power to the federal government.
Moving on to the Amendments...
Amendments 1 through 12 only limit the power of the federal government, they do not grant any new powers. The first Amendment to grant any power to the federal government is the 13th Amendment, which grants to Congress the power to enforce the prohibition of slavery.
The 14th Amendment grants the federal government the power to establish US citizenship and the power to prohibit the States from violating individual human and civil rights and to prevent insurrectionists from serving in public office.
The 15th Amendment grants Congress the power to prevent the States from limiting the right to vote based on race.
The 16th Amendment grants Congress the power to levy unapportioned tax on incomes.
The 17th Amendment establishes the popular election of Senators but does not technically grant the federal government any powers.
The 19th Amendment grants Congress the power to prevent the States from limiting the right to vote based on gender.
The 23rd Amendment grants Congress the power to authorize Presidential Electors from the District of Columbia
The 24th Amendment grants Congress the power to prohibit poll taxes for the privilege of voting.
And finally, the 26th Amendment grants Congress the power to prevent the States from limiting the right to vote based on age, and to establish the voting age at 18 years old.
Now if you have been following along and marking or highlighting the sections I have pointed out, then you have marked or hilighted every last power that the federal government has and is allowed to exercise.
Only those laws that are explicitly authorized by those marked or hilighted sections are supreme, per Article 6 of the US Constitution. Any laws that are not pursuant to the marked or hilighted sections are not laws at all, they are null and void, hence nullification.
Proper, Constitutional nullification per James Madison, the author of the US Constitution, and per Thomas Jefferson, the author of the principles that the Constitution was drafted around, does not, can not "veto" any federal laws, that was the error of John C. Calhoun which the modern opponents of nullification rely on to justify their position.
Instead, it merely recognizes an existing condition - that any federal laws which do not proceed from the powers that are now marked in each of your Constitutions, under the Article 6 Supremacy Clause simply are not laws at all. They are null, void, and can be ignored by the States.
This is NOT the "Single State Veto" which presumes to repeal federal laws, it is simply a recognition that such laws are not supreme per Article 6, and therefore State legislation takes precedence and preeminence over any and all such acts.
An amazing piece of history that usually gets lost in this debate, is the story of Wisconsin's nullification of the Fugitive Slave Acts.
Congress passed the first Fugitive Slave Law in 1793, which required that any persons on happening to encounter an escaped slave were required to capture them and return them to their owners.
As early as 1794 many of the Northern free states were passing laws refusing the State's cooperation with the original 1793 fugitive slave laws - bills almost identical to many of todays "refuse to cooperate" bills arising from the several State Legislatures around drones, or the indefinite detention provision in the NDAA, or to refuse cooperation with any federal confiscation of firearms. The 1794-1796 Nullification acts of the Fugitive Slave laws serve as the basic model for the vast majority of nullification acts arising in the several States today. When the U.S. Supreme Court ruled, in Prigg v. Pennsylvania (1842), that states did not have to offer aid in the hunting or recapture of slaves, the vast majority of the nullifiers were vindicated, and the slave trade was thrown into chaos, with the institution of slavery becoming completely untenable in the border States due to a massive increase in slaves escaping captivity and fleeing to the North.
So, with the Northern States refusing to cooperate with the recapture and the return of escaped slaves, the Southern States demanded action and in September of 1850, Congress passed a law that required any escaped slave, whether having passed into a free state or not, to be aggressively recaptured by the citizens or agents of that State, and to be returned to their slaveholder, or face fines and/or imprisonment. Gone was any ambiguity in the law, the States were explicitly disallowed from refusing to cooperate, and the failure to capture and return a slave could land one on federal prison. Anybody who gave food or shelter to a slave was subject to fines and imprisonment. No slave was allowed to seek a jury trial before being returned to their owners. A slave owner merely needed to provide an affidavit claiming ownership of a person, and that person was their property. No matter whether they lived in a free state or a slave state.
As you can imagine, abolitionists and the Free States were rightly appalled at this law, as it eliminated any possibility for refuge on the part of escaped slaves.
Wisconsin and Vermont took particular offense to the abhorrent Fugitive Slave laws of 1850, and Wisconsin ruled the Act unconstitutional and disallowed any cooperation within the State with the law, and specifically Vermont in November of 1850 ratified the "Habeas Corpus Act" that outright required all judicial and law enforcement officers in the State of Vermont to assist the SLAVES against their capture and return to their former owners.
Now, I want to stop and draw your attention to what Vermont did here. They passed a law in the Vermont State Legislature that positively required all of the officials in the State of Vermont to assist the escaped slaves in contravention of the federal fugitive slave laws. Here is where we first get the modern concept of Interposition.
In the Vermont law, the State was required to INTERPOSE itself on behalf of the victim of the unconstitutional federal law. No longer was this 'mere' nullification where a federal law was declared to be unconstitutional and that it would simply be ignored within the State (nullification), but further the State was required to interpose itself in between the affected fugitive slave and the federal government - Nullification with Interposition.
Because of the brave actions of Wisconsin to declare the Fugitive Slave Act unconstitutional and refuse cooperation, and of Vermont to go even further and pass legislative interposition to place the State government in between Washington DC and their victims, this ensured the survival of the Underground Railroad and led to securing the liberty of tens of thousands of slaves.
Furthermore, the brave actions of Vermont and Wisconsin led many of the rest of the Free States to find the courage to openly ignore the Fugitive Slave Laws without passing the corresponding nullification legislation to do so. Jury trials were forced for the return of slaves in places like Massachusetts - in direct violation of the federal law - which universally led to the slave's freedom via jury nullification, or a direct refusal on the part of the jury to convict, despite the letter of the law.
Without these two brilliant examples of nullification, many thousands of slaves would have been returned to the horror of their bondage, but instead lived out their lives in liberty.
Now that we have brushed against the concept of Interposition in the Vermont law, let's take a closer look at interposition.
The term was first coined by James Madison, author of the Kentucky Resolution to nullify the Alien and Sedition Acts. In the context of the Kentucky Resolution, interposition referred to directing Kentucky's Congressional delegation to seek the repeal of the Alien and Sedition Acts, and not to interposing the State on behalf of the victims of the law. That was as far as interposition went in the Kentucky and Virginia Resolutions, primarily because the Alien and Sedition Acts were not being very well enforced in the first place, and there was very little to actually interpose against.
Opponents of the doctrine will claim that asking the Congressional delegation to seek a law's repeal is the only thing that interposition can possibly mean. However, words have meaning, and taking a cue from the school of original intent we must use a dictionary that was produced in the era of the language used in order to discern what that language meant at the time it was penned.
The 1792 Samuel Johnson Dictionary of the English Language (1792) defines Interposition thus:
INTERPOSITION
1 Intervienient Agency
2 Mediation; agency between parties
3 Intervention; state of being placed between two
4 Anything interposed
Therefore we can clearly see that interposition meant the same thing in 1792 as it does today. Words have meaning, and lest we accuse James Madison, the author of the US Constitution of not knowing the meaning of words, then we have to account for the potential of Vermont style interposition having been countenanced by Madison when he described it as such. Had he not countenanced such an application, any number of words would have been more appropriate, such as Redress. Petition. or Direction.
No, James Madison quite specifically called upon interposition, even giving interposition a higher claim to legislative legitimacy than the nullification it is predicated from. Part of the reason that interposition was granted as preferable to simple nullification was to counter the "Single State Veto" distortion conceived by John C Calhoun, which perverted Madisonian and Jeffersonian nullification improperly to reach outside of the State to affect external action, where when conjoined with interposition the doctrine could only ever be seen to affect operations WITHIN the State.
So, to summarize what we've covered so far,
Nullification is the act of recognizing an Act of Congress as being unconstitutional, and therefore per the Article 6 Supremacy Clause it is not supreme, but it is null and void.
Interposition is a legislative act requiring the State to interpose itself between the federal government and any potential victims of the unconstitutional law, whether that interposition is to lobby Congress as in the case of the Kentucky and Virginia Resolutions, or to actually interpose with the force of law and arms to defend the victim as in the case of the Vermont Habeas Corpus Act.
The doctrine of nullification can be drawn entirely from the Article 6 Supremacy clause specifying that ONLY those laws pursuant to the powers granted in the US Constitution are supreme, and the Tenth Amendment is only supporting documentation for a doctrine that exists entirely within the Supremacy Clause itself.
The powers from which Congress may enact legitimate federal laws are few and defined, and we covered every single one of them in our copies of the US Constitution.
Kentucky and Virginia in 1798 did it correctly. The Free States from 1794-1840 did it correctly. Wisconsin and Vermont in 1850-1854 did it correctly. These were all examples of proper Constitutionally correct nullification.
John C Calhoun in 1832 did it wrong. This was an example of the improper application of nullification, further, this was a distortion of the primary definition, intent, and purpose of nullification.
Opponents of nullification point to the Calhoun bills of 1832 and like to pretend that the rest of them never actually happened. The Heritage Foundation, for example, in it's oppositional dissertation against nullification, points only to the Virginia and Kentucky resolutions, demonstrating their difference from the Calhoun distortion, and summarily declares nullification as a Constitutional heresy.
Of course, it's pretty easy to wrestle out a predetermined conclusion when you just ignore 80% of the evidence of history.
This finally brings us to the modern nullification movement.
First it is important to recognize that the only times nullification has ever been proper or successful in American history, has been to defend personal human and civil rights against the federal overreach of unconstitutional law. Whenever nullification has been used for any purpose other than defending human and civil rights, it has not only failed spectacularly, it has generally been found in retrospect to be improper.
Therefore, modern nullification bills have been universally directed towards the protection of human and civil rights. Nullifying federal gun control. Nullifying federal drone surveillance and attacks. Nullifying the federal suspension of habeas corpus in the NDAA, nullifying the federal regulation of personal food gardens, nullifying the federal regulation of personal commerce via the abuse of the interstate commerce clause, and so on.
Nullification bills have been considered and or passed into law, in every single state in the region except for North Carolina.
Virginia signed into law the nullification of federal identification cards in 2009, and signed into law the nullification of indefinite detention in the NDAA in 2012, and passed drone nullification in 2013 currently awaiting the Governor's signature.
South Carolina signed into law the nullification of federal identification cards in 2007.
Georgia signed into law the nullification of federal identification cards in 2007.
Tennessee enacted Firearms Freedom into law in 2009,
Alabama passed a Constitutional Amendment to nullify Obamacare in 2012
Nearly every State in the Union has at the very least allowed these bills to be heard, including California and Illinois.
Except for North Carolina.
North Carolina is on course to become the last State in the United States that to give any of these kinds of bills even a basic hearing. In fact, the North Carolina General Assembly is openly hostile to the notion of hearing any bill that stands up against Washington DC, and the primary opponent in the General Assembly against these measures has directly threatened any Member who introduces such bills with shutdown and electoral removal.
There are two primary reasons for this. First, Article 1 Section 5 of the North Carolina State Constitution requiring that no laws in contravention to the government of the United States may be binding has been blatantly misinterpreted to mean that no such laws may exist, and second, while the opponents of our standing up to Washington DC are a very small minority of Republicans in the General Assembly, they have the reins of leadership, and have since before the Republican Majority.
The primary opponent to nullification in the General Assembly argues, "the Civil War answered that question once and for all," which of course is nonsense because the Civil War did not repeal the US Constitution, and their second argument is based in case law such that Wickard v Filburn (1942) allegedly gives the federal government the power to do anything it wants, regardless of what the Constitution may or may not say, which is also nonsense, because no amount of case law from the Supreme Court or otherwise can serve to repeal the US Constitution.
My friend and former US Marine, Representative George Cleveland has been pushing a State Sovereignty resolution since 2009, and these efforts have been hamstrung by the exact same resistance. Another friend and former Marine, and as I recall a friend of the CCTA, Representative Michael Speciale I know would like to work bills more substantive towards the protection of North Carolina citizens, but he is running against this very same wall.
If we want to see legislation that stands up for North Carolina citizens against the unconstitutional overreach of the federal government, if we want to see the North Carolina Legislature stand up and do it’s duty and honor their oaths, then we have to stand up for those who have stuck their necks out, Michael Speciale, Larry Pittman, John Bell. We have to stand up and be heard, because this leadership doesn’t believe that we exists or that we have the popular will to stand against Washington DC.
And the other thing, we have to stop reelecting Republicans who are ONLY conservative in one issue. When a Republican is good on social issues, but terrible on gun rights, pro Agenda 21, accepting of the nanny state, and so on, especially when such people have the fundraising power to participate in legislative leadership, and exerts that power to prevent the advance or even the consideration of other measures by legislators who propose measures that stand up against federal overreach, then we are going to continue to get what we reelect every two years.
The North Carolina Republican Party is no longer a minority Party. We are a majority party, and it’s time to start acting like one. The voters are not inspired by compromise and capitulation - the only people who claim that they are, are those begging for us to compromise and capitulate.
We saw when Senator Rand Paul stood on the floor of the US Senate to filibuster on a question of the Constitutional separation of powers, that it is NOT compromise that inspires conservatives, it is courage. The Republican Party has not had truly inspirational leadership since Ronald Reagan, and over the course of the last 25 years our power has been in a slow steady decline. We have seen that Senator Rand Paul during his monumental drone filibuster delivered to Barack Obama the first real defeat of his Presidency.
What I am telling you, is that Americans WANT leaders who have the courage to stand up against federal overreach of power. The Republican party is LOSING support because of the lack of courage on the part of our General Assembly leadership. We are no longer a minority party, and it’s time to stop acting like one.
It’s time to ratify nullification with interposition in North Carolina now. We have super-majorities in both chambers, and a Republican Governor. if we can’t do it this, year, then we frankly have no excuse.
~ Glen Bradley
