When you mention nullification, most people immediately think it’s all about slavery and the Civil War. But the principles date back long before that, all the way back to 1798. James Madison and Thomas Jefferson first formally articulated the idea in the Kentucky and Virginia Resolutions in opposition to the Alien and Sedition Acts. However, the principle actually finds its roots in the very structure of our government. Therefore, to grasp the legitimacy of nullification, we have to go back and look at the ratification of the Constitution itself.
When the delegates met in Philadelphia to hammer out a new structure for the Union, many delegates hoped for a strong, centralized national government. James Madison pushed for a federal veto over every state law throughout much of the convention. Nevertheless, as time wore on, all of the proposals centralizing power in the general government were voted down. The Constitution that emerged from the Philadelphia convention created a general government with specific, enumerated powers.
The people of America simply were not going to adopt a form of government centralizing power at the top. They wanted to ensure that most of the political power remained at the local state level. As proponents of the new Constitution began selling it to the people of the states, they went to great lengths to allay fears that the new government would become too powerful and crush the sovereignty of the individual states.
James Madison, John Jay and Alexander Hamilton wrote a series of essays explaining the new Constitution. You can think of it kind of like the sticker on the window of a new car, providing all of the vital information you need to know. Madison explained the structure of the proposed system created by the Constitution in Federalist 45, making it clear the federal government was meant to exercise only limited powers.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.”
The key to understanding the meaning of the Constitution lies with the ratifying conventions. The convention delegates were the one who agreed to accept the new Constitution and their understanding of it reveals exactly what they believed they were agreeing too. When you look at the ratifying convention debates, and the documents many of them produced, it becomes clear that they intended to create a government with specific, limited powers. Here is a passage from the New York ratifying document.
This may well be the most important thing you read today.
“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the saidConstitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the saidConstitution, which declares that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”
There you have it. Any power not clearly delegated remains with the states and the people. The New York delegates even insisted they had the right to take back the powers they gave to the federal government, and reassert their state sovereignty. You will find similar language in the Virginia ratifying document. The folks in South Carolina made it even simpler.
“This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction that the states do not retain every power not expressly relinquished by them, and vested in the general government of the Union.”
However, the states weren’t content to rely on their ratification pronouncements to ensure the federal government understood its limits. They insisted on amendments protecting certain rights and making explicit what was already implied by the Constitution’s structure. The Ninth and Tenth Amendment together make it abundantly clear that the federal government does not have unlimited authority, it is limited to those powers delegated in the Constitution.
IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X. 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.
Therefore, it’s clear that the federal government was never intended to exercise broad sweeping powers over the entire United States. Moreover, if we agree that the feds have limited authority, it logically follows that the states that created the federal government have a right too:
Nullification logically flows out of the very structure of the United States Constitution, the Bill of Rights and the Ratifying Conventions.
William Kennedy [send him email] is the State Director for the North Carolina Tenth Amendment Center. A strong supporter of the Constitution, Declaration of Independence and the Bill of Rights with special emphasis on State Sovereignty protected by the Tenth Amendment.
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