15th Letter to the American People
May the greatest of American times stand yet before us and the happiest of days be those still yet to come.
My dearest American Friends,
It is after an absence of some considerable time that I again write to you. I am hopeful this message finds you well and on the brink of a national breakthrough that sews the passions of Jefferson and Locke into the hearts of every American. On this day, July 4, 2022, some 246 years after the birth of this nation, I find myself contemplating a path forward – one which secures not just for ourselves but for posterity the truest blessings of Liberty. It is in this thought that I return to the Principles of 98’, nullification, and interposition. I should hope the argument laid out - much aided by the thoughts of our Jefferson, John Quincy Adams, Professor Donald Livingston, and the many greats who have come before us - provides you with the necessary facts and an energetic fervor to move forward with these ideas in your own States. It is with the great blessing of God that I give them to you now.
Thomas Jefferson introduced the term ‘nullification’ to the American political discourse. In fact, our founders injected the idea invitro, and carried it throughout the infancy and adolescence of this nation. Jefferson held closely to the concept during his own presidency believing States held the absolute right to ignore unconstitutional acts by the federal government, and the free exercise of the idea remained with us for nearly 100 years. Even before the Declaration of Independence, nullification and interposition was being carried out by the many sovereign States that made up those in rebellion against the Crown. Further, the States preceded any formation of general government, and it was the states themselves whose joint compact created the federal government which lets us know without any doubt that the compact theory of government is that which is historically accurate, lending immense historically authentic lawful weight to the acts of nullification and interposition by sovereign states.
The States existed before the 1st Continental Congress, before the Articles of Confederation, and before the US Constitution. They were British States that seceded through revolution after having for decades nullified various British laws (The Sugar Act, The Stamp Act, etc.) Upon declaring independence, the many sovereign States acted in some limited regards as a collective, but in most and all other ways were independent States.
The concept of State sovereignty, and thus the idea that States may nullify and interpose themselves on behalf of the people should unconstitutional laws be passed was firmly planted by the founders within the Constitution via the 10th Amendment. The 10th Amendment defines Federalism and ensures the States remain as capable sovereigns: “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.” Only a perverted reading of the 10th Amendment could provide one with any other concept.
Nullification and interposition were also put forth by Jefferson in the Kentucky Resolutions of 1798-1799, and by James Madison in the Virginia Resolution of 1798 and the Virginia Report of 1800. The Constitution, as our founders understood and intended it, is a compact agreement between sovereign states which created a limited general government to act as their agent whose purpose was to carry out a very select number of enumerated powers. Every other power – all of them – those written and unwritten, that are not enumerated are reserved to the States, or to the people.
Opponents of nullification and interposition point to the Supremacy clause within the Constitution. Here it states that the constitution is the “Supreme law of the land.” However, what follows is that all statutes and treaties created by the general government must exist within the strict framework of the Constitution; that they must be in rigid accordance with the enumerated powers, not violate any of the other constitutional limits that the States have placed on the general government, meaning the Bill of Rights – specifically here we must consider the Tenth Amendment, as we know the general government only has the few powers delegated to it by the Constitution.
As early as 1803 the Supremacy Clause was tested in Marbury v. Madison. Here, Chief Justice John Marshall stated that “A Law repugnant to the Constitution is void.” In the beginning, even the general government agreed that had no legal or lawful basis to overstep the constitution.
However, Judicial Review by the Supreme Court was not written into the Constitution. And though this opinion by Chief Justice Marshall supports the concept of nullification and interposition, it is not through this mechanism that such actions should take place. For the Supreme Court is an agency of the general government created by the Constitutional Compact that the States signed on to. Therefore, the Supreme Court is actually a party to the dispute. This contradiction has long been one of the most overlooked aspects of how a people preserve their liberty and freedom from an oppressive general government. How can we, citizens of our own states, expect the general government - who is a party to the conflict - to resolve the issue itself? If this were the case, there would be no need for States. And worse yet, and more to the point, there would have been no need for the States to have created the original compact (which is the Constitution) with one another if they were just going to say that the Supreme Court, an agency created by and given limited, restricted powers through that very compact, had the ultimate authority to say what the furthest limits of those restricted powers are. This would make no sense. It is a nonsensical proposition.
Nullification must be understood for what it is, and what it is not. Nullification is not secession. Nullification is not rebellion or an unlawful act to avoid just federal action. Neither is nullification an attempt by the State or any other sovereign to exercise power it does not lawfully have, nor is it an act of civil disobedience akin to protest.
State nullification is a lawful, constitutional act whereby a lawful authority (a sovereign state) which is a party to the constitutional compact declares an act unconstitutional and refuses to enforce it. This is comparable to a President Vetoing legislation or more locally a jury refusing to convict a person under a law it believes is unconstitutional. Nullification exists within our system today as demonstrated by the previously mentioned mechanisms. We simply refuse to act upon it in its most robust form as it was originally intended.
Opponents have often claimed that nullification, as it raises a constitutional issue, requires a three-fourths majority of States to enforce as this is the number required to ratify an amendment. However, no such majority is required as nullification does not seek to alter the constitution. The nullifying state is not trying to amend the constitution in the face of a valid law it finds repugnant or disagreeable. Nullification is not that at all. It is simply that State exercising its lawful, sovereign authority to protect its citizens from unconstitutional acts by the federal government. Therefore, in recognizing what nullification is, we can see that it may only take several, or as little as one state to nullify a federal act to cause the federal government to reconsider its action and back off an unconstitutional exercise of power, especially if other states either support or in the least, simply do not disagree with the state that is exercising its right to interposition.
So, what if one or even a small minority of states declare the actions of the federal government to be unconstitutional? One remedy to this is a Constitutional Amendment. In this case, the States would have to comply with the freshly amended compact if it wished to stay within the Union. The other option in this case, is that the interposing state would be allowed to remain within the Union AND enjoy the power in question within its borders. While this might seem unreasonable or unjust, it is not. Recall, the States entered in Union with one another as sovereign political societies. A sovereign state can govern itself without the permission of other states up to the point that it has entered into compact with them and designated certain powers within the scope of the general government to which they are a party. In this case, as the law or action in question is deemed unconstitutional – thus deeming it outside the scope of the federal government – the State requires no permission or outside authority to carry out the action of nullification and interposition to protect its citizens from that which was deemed unconstitutional.
What powers does the constitution say the central government has? They are nothing more than the powers delegated to the other states that they may exercise collectively through general government. What powers do the States have? They are indefinite and undefined because they are the powers of sovereign States. Since the constitution cannot and does not define what they are, the Supreme Court cannot have the final authority to define them. Only that States can do that.
Let us look at an example. What if the federal government had progressed in another direction and the recent Dobbs ruling had never occurred? What if the Federal government had, in short time, moved to allow post-birth abortion within the first 24 hours of birth based upon a different test case brought forth by progressive California political society? This is not farfetched as many of our political elite and the progressives across this nation (many tens of millions) believe that abortion up to birth should not just be allowable BUT enshrined by Federal Law or perhaps constitutional amendment. As there is no moral difference between aborting a child just before birth and aborting one within 24 hours of birth, we can see that if our Supreme Court contained a slightly different makeup such a ruling would be very, very possible. At the point that the federal government would make such a ruling to allow post-birth abortion within 24 hours of birth, what happens when a state moves to interpose itself on behalf of its citizens, specifically those citizens that are less than 24 hours old. Would it be reasonable to allow that one state who said “No” to post-birth abortions within its borders to remain within the union while enjoying that power? Of course, it would be. Would this cause such calamity as to collapse the union or cause civil war? Not in the least. Across this nation states all have their own laws which differ in vastly dissimilar ways. To say that by one state interposing itself on behalf of its citizens that the very nature of the union would be in question is laughable. Furthermore, we have demonstration of such interposition in our own hemisphere by a nation that has not collapsed and is, in many ways, very much like our own.
The Canadian Constitution allows the States (Provinces) to interpose themselves on behalf of their citizens and nullify any federal mandate or law in the area of civil rights that they deem unconstitutional through the notwithstanding clause. Canada has not collapsed into abject tyranny or anarchy though the provinces hold the right to nullification and interposition.
Any federal system that is looking to preserve the self-government of its federated political societies must recognize some form of legal resistance by that States in compact which created it (it being the general government) when it exercises authority outside of its Constitutional Mandate. Such resistance can take many legal forms. New England States have the longest and most consistent track records on nullification and interposition: the embargoes of Jefferson and Madison; the War of 1812 Conscription; Annexation of Texas; and the Fugitive Slave laws were all nullified by New England State Legislatures, Judges, Juries, Townships, and even a convention of States held at Hartford.
Perhaps one of the best examples of Interposition and Nullification by a State is that of Chisholm v. Georgia. In this case the executors of an estate belonging to 2 deceased individuals tried to sue the State of Georgia over a bond that was issued before the American Revolution. The State of Georgia interposed its authority to block what was an unconstitutional action by the federal government which ordered Georgia to appear in court to defend itself. Georgia refused to show on the grounds that a sovereign state cannot be sued by an individual, and also in this case, Georgia refused to appear as their view of the matter was that the court of the federal government was not treating Georgia as a sovereign state. The Supreme Court moved forward and found for the plaintiff, ordering Georgia to honor the bond. The State of Georgia flatly refused, going so far as to pass a bill in the Georgia House of Representatives that stated any federal officer that attempted to execute the order would be “guilty of felony, and shall suffer death without benefit of clergy by being hanged.”
As it stands today, the American people do not exercise any meaningful vertical check on the federal government. Without the revival of interposition and nullification self-government here in America fails to exist.
The compact theory of government, from which Jefferson derived his theory of interposition and nullification, was the theory of government our founders and most all Americans prescribed to during the first 100 years or so of our national existence.
The historicity of American Political Society, the Founding, and Self-government proves the compact theory in all ways and leaves for us no question on the matter.
The compact theory requires of us two things:
1: That the states are sovereign political societies
2: The constitution is a compact between states
So, at our founding were the States sovereign political societies? Yes. The Declaration of Independence declared the colonies free and independent States (meaning that each state was free and independent not just of the British government but of each other) with the right to do all things free states can do. In treaties with Sweden, Britain, Spain, and France the States were recognized by name as free and sovereign states that signed on to these treaties which were bound by international law. Article II of the Articles of the Confederation says, “Each State retains its freedom, sovereignty, and independence”. These are technical terms underneath the law, and further, a state can only retain its freedom, sovereignty, and independence if it had it before the agreement was made. How else can one, be it an individual or a state, retain something if it was not prior in possession of that very thing.
When addressing the question of whether the constitution is a compact between states, we must look to the most important article in the entire Constitution: Article VII. It is the most important because it is the article that breathes life into the compact and takes it from a mere proposal to that of an authoritative and legal compact between sovereigns. Article VII says that the compact, meaning the Constitution, holds if 9 of the 13 States ratify and it will hold between the states “...so ratifying the same”. This outlines that the Constitution is between the States and NOT between Americans as individuals as those who stand against compact theory would have you believe.
Many of those who stand against compact theory of government are quick to say also that the States lost sovereignty the moment they signed on to the Constitution. That is not so. Under international law sovereign states cannot lose sovereignty by implication but only by expressed action, and at no point in the Constitution do the states give up their sovereignty in such a way. In fact, Virginia believed at the time of ratification that they were entering into a treaty with the other States. Virginia put into her own ordinance of ratification the right to secede from the union of states and withdraw the powers delegated to the general government, just as did New York and Rhode Island. These States very clearly – and through lawful, legal measure – had made sure that they entered this agreement (The ratification of the Constitution) as sovereign states with all the powers of a sovereign State.
If we look at the earliest examinations by scholars of the Constitution, we can see the compact theory of government is that which was viewed as lawful and legal to the American system of governance. In 1803, St. George Tucker made it very clear that the Constitution was a compact between States and for that reason States can withdraw from the Union if they please. Compacts between States having no stated duration are compacts at will. Not that the implication is secession, but that all the powers of a sovereign state are reserved to the States except those expressly delegated to the general government. Therefore, everything from nullification and interposition to secession are lawful rights of the State.
In further examination, in 1825, William Rawle, published A view of the Constitution of the United States of America, in which he raises the question “Can an American State form a monarchy and an order of nobility?” The answer is yes, of course they can! They are sovereign States. But in doing so it must leave the Union because Article IV guarantees every state a Republican form of government.
So then, the next question raised is how does a State leave the union? He then lays out the legal and lawful way in which a state can exit the compact and thus leave the union having withdrawn the powers they as a sovereign state had delegated to the central government. He says “The secession of a state from a Union depends on the will of the people of such state. The people alone as we have already seen hold the power to alter the Constitution.” Rawle’s book was the text on Constitutional law used at West Point from 1825 to 1840 and was reviewed by Boston’s prestigious North American Review and was pronounced “A safe and reliable guide to the Constitution.” Recognizing the historicity of secession in this context allows us to recognize the same for nullification and interposition.
John Quincy Adams, the sixth President of the United States, stated on the jubilee of the constitution in 1839, “But the indissoluble link of union between the people of the several states of this confederated nation, is after all, not in the right, but in the heart. If the day should ever come, (may Heaven avert it,) when the affections of the people of these states shall be alienated from each other; when the fraternal spirit shall give away to cold indifference, or collisions of interest shall fester into hatred, the bands of political association will not long hold together parties no longer attracted by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of the disunited states, to part in friendship from each other, than to be held together by constraint.”
Such a statement could not be made unless the Adams held the view that the Constitution was a compact between sovereign states.
It was in 1843 that John Quincy Adams, signed along with many prominent American politicians, A Solemn Appeal to the People of the Free States, which was in favor of secession should the federal government go ahead with the annexation of the State of Texas. Secession as a right, and thus the idea that states are sovereign political entities was a living part of the American political system as formed through compact. If states could secede, they were sovereign. If they were sovereign, then they held all powers sovereign states hold which include nullification and interposition.
With continued examination, we learn that nullification was vigorously carried out during the antebellum period, and it was during this time the courts of the federal government ruled against nullification. And of course, they would. Why would agents of the central government rule against the power of the central authority to govern against that which they viewed as a preceding and competing power, meaning the states?
But even then, the States continued to exercise their lawful authority to nullify unconstitutional federal acts. As late as 1859 Wisconsin nullified via its own Supreme Court the Fugitive Slave act and refused, regardless of a later Federal Supreme Court ruling, to enforce the unconstitutional act. Following this the State of Wisconsin spent exactly $0 state dollars towards the enforcement of the Fugitive Slave Act.
Even more recently in our own modern experience the concept of medical marijuana has been outlawed by the federal government and yet for years many states, headed by California, have continued to provide their citizens the legal right to have and consume marijuana in this capacity. Even when the argument was taken to the Supreme Court and the ruling went against California they did not respond to the ruling. They simply continued forward, ignoring the unconstitutional ruling upon which the Supreme Court – and federal government as a whole – had (and continues to have) no right to rule either for or against. And what is more, we have seen Conservative states such as Alabama and others who do not propose to have or even pretend to like the concept of legal medical marijuana come out in support of California and other states in this instance. They recognize that the federal government has no standing and no lawful authority via the Constitution to prevent a sovereign State from taking care of the health of its own citizens in any way it chooses, this case being the utilization of medical marijuana. For their part, the thousands of dispensaries in California and now numerous other states are perhaps the best examples of nullification and interposition in our modern age.
Nullification, interposition, and States Rights have been demonized by the legacy media, progressive historians, the miseducated, politicians, and those whose typical inclination is to race bait and recall slavery at any and every instance. But for its own history, nullification and interposition is and has been so much larger than that. It is that which binds the federal government to its legal and lawful place. It is the sword that the elected common man has within his own state to wield against an unjust and corrupt federal government, and it is that shield carried by the State which stands as a bulwark against the storm of federal tyranny.
Carry with you today, back to your communities, to the conversations you may have with loved ones, your friends, and those whose leadership guides your localities, counties, and states the ideas of nullification and interposition. Elect those who wish to protect your rights and prevent federal abuses.
My dearest friends, you have within you the blood and inheritance of patriots who risked life and honor to provide you with a capable document should you choose to protect it. On this day, some 246 years after those brave signatories stepped into the great unknown, let us carry forward their shield and sword. Let nullification be our sword, and interposition the shield which protects us all.
May the greatest of American times stand yet before us and the happiest of days be those still yet to come.
Be Kind To Your Neighbors,
Cultural Husbandry, 1776/2022
Cultural Husband, your essay reads with the passion and principle of the Declaration of Independence - but that document was about independence from a tyrannical, thieving foreign power. Your Declaration is about liberating ourselves from an endogenous, insidious tyranny that has evolved rapidly in the past 50 years or so. There is no clear starting point; it has been incremental and accelerating. The problem is scale. At the time of our founding, the 13 States could easily secede from the Union and survive with complete autonomy if they had to. The threat of secession was a powerful weapon, a check/balance against tyranny arising all over again, this time from within. Sparsely populated, with simple economies that were primarily agrarian, and blessed with seemingly inexhaustible resources, undeveloped land, at a time when the speed and pace of communication, travel, and life itself made it impossible to have the nearly instantaneous reactions as today, the States could secede and succeed. Now states are fused together, like conjoined twins bound so tightly, sharing their circulatory and nervous systems, that "surgery" would be violent and potentially catastrophic. California, with ~40 million people, cannot survive prosperously without water from other states. It is powerful and parasitic, and uses its asymmetric power in Congress to force other states to supply the water - basically, "water taxation without representation". Texas, which rumbles all the time about secession, cannot possibly sustain the current way of life of its citizens independently, respond to internal disasters, etc, without "federal" assistance. Fusion of this sort is synonymous with loss of freedom, creating a syncytial mass, an unsustainable bubble in which the central government has to impose - coerce - standardized behavior over a geographically, economically and culturally heterogeneous population. Artificial intelligence, computer algorithms, etc - amoral, automated, heartless - are increasingly required to manage the flow of resources - and their restriction - to keep the syncytial mass alive. Social homogeneity at this scale is impossible. It is the basis of Stalin's observation that "when one person dies, it's tragedy; when a million people die, it's a statistic". Central bureaucrats make sweeping decisions based on statistics, not on anything remotely resembling natural compassion as found in a family or community. As the saying goes, a man who cares for all children equally neglects his own; but we are being increasingly pressured to neglect our own children to take care of total strangers. We are achieving de facto Communism/Big Brother through the backdoor of an increasingly totalitarian central government that parades around in American flags under the banner of "democracy" that is just a self-serving tyrannical bureaucratic duopoly that does not represent the people. The problem is that at this scale, the fusion process - a morbid codependency between the States - has enslaved us all. Somehow or other we have to return to a hierarchical localism that is viable, even if tensions persist between the levels. That's what "checks and balances" is all about. It will be a painful and revolutionary process. States raising their swords and shields (interposition and nullification) is a good place to start. You are a good neighbor. Good neighbors will die for each other, but strangers are less inclined.
Boom! Been saying this (though not nearly so eloquently) for several years. Didn't think about it before 2016....wrongly accepted Federal supremacy as the standard. 2016 changed that. And this essay clearly articulates why. It's a delicate balance between optimizing the benifits that comes from the economy of scale 50 states operating under a common objective brings.... and respecting state sovereignty.
And right now we are very out-of-balance.
If we could get to a Convention of States (getting closer but not holding my breath) we could have this debate without Federal intervention (though I suspect they'd do everything in their power to sabotage a CoS).
Bravo again.
As always, I'll be kind to my neighbors.
Cheers