I have begun a post on nullification and the 10th Amendment several times. There is just too much information for one article. Today, I write this as a basis for nullification and posts will follow with more specifics.
First and foremost, the entire system of government in this country has been flipped over. It is upside down, in our terms and certainly in our laws and application of laws.
In our minds, most people see the hierarchy of our system of government this way:
Federal government over the state government
State government over the local government
Local government over the people.
In our words, we even refer to those we elect as “elected leaders.” Today, Rush Limbaugh pointed out that we thought that we had elected conservative “leaders,” but got more of the same.
NO MORE! WAKE UP! This is not a “leadership government.” It is a REPRESENTATIVE government. The Declaration of Independence states that, in order to secure our rights of life, liberty and the pursuit of happiness, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”
This phrase, along with the design of the US Constitution makes it very clear that the founders created a form of government with an opposite hierarchy than what most people believe today. The founders created a government that put:
The people above the local government
The people and the local government over the state government
The people and the state government over the federal government.
This is the only way that it can even be said that government derives their powers at the consent of the governed.
So, what is the remedy if government tries to grow beyond the consent? The people have the right to say no. The states also have the right to say no. The states created the federal government through a compact between the states. The federal government is a creation of that compact, not a party to it. The federal government has no say in what powers it has, the states do…and ultimately the people do.
The very idea that the US Supreme Court has the power to determine not only what powers the federal government has, but what powers the States have is ludicrous when you consider that the federal government was created by the States and is not a party to the Constitution but a creation of it.
That is where nullification comes in. If the states are who determined the original powers of the federal government, it is still the states that determine the current powers of the federal government. If the federal government steps outside of the limits placed on it by the Constitution, it is within the power of the States, and it is the DUTY of the states, to declare that power to be outside of the Constitutional restraints, and therefore, null and without force. That is why nullification is the right of the states.
As for the people’s right to nullify it comes in two forms.
1. Nullification by removing those who would usurp the limits on their authority.
2. Jury nullification. The jury does not only have to look at the facts of the case, but also should look at the law that the accused is said to have violated. If that law is not a just law according to the US Constitution and the Constitution of the state involved, then it is within the jury’s authority and it is their DUTY not to convict. For example, if a person is charged with possessing a firearm with a magazine larger than the law allows, and the person admits fully that he has it and all evidence is that he possessed it, it is STILL the jury’s duty and within their power to acquit based on a law which is null and without force because it violates the 2nd Amendment to the US Constitution.
If you doubt that the right to determine the limits of the federal government and the Constitutionality of law (judicial review) is a power of the States, consider this. The 10th Amendment states that all powers which are not granted specifically to the federal government and are not specifically prohibited to the states, rest with the states and the people. Judicial review is not mentioned in the Constitution. Therefore, it is not granted to the federal government and it is not prohibited to the states…it rests with the states and the people.
Do not take my word for it, read the Kentucky Resolutions of 1798. Thomas Jefferson was pretty clear on the role of government and nullification. Also, look up what James Madison, John C. Calhoun, and even federalist Alexander Hamilton said about the limits on the federal government, the dangers of allowing the federal government to grow beyond its Constitutional limits and the right of nullification.
By Jon Colson