Introductory Statement Declaring the Historical Context of Nullification and the Intent of this Resolution:
Those who loved the Americanist concepts of a national government whose powers are limited, few, and defined (constrained by the specific powers enumerated in the United States Constitution to operate only within the jurisdictional scope granted by the Constitution) were appalled with the passage of the Alien and Sedition Acts by the United States Congress in 1798. The Congress and the Executive ignored the limits and bounds of the national government as established within the United States Constitution and the Bill of Rights in their passage and signing of that act. Some States decided to exercise their right of refusal to this usurpation. Thomas Jefferson, the principle author of the Declaration of Independence, and James Madison, the “Father of the Constitution,” collaborated in assisting Virginia and Kentucky in their effort to protest and nullify this egregious act by the national government.
The Kentucky Resolution was adopted by the Kentucky Legislature 10 November 1798, and the Virginia Resolution was adopted by the Virginia Senate 24 December 1798. Those resolutions were abbreviated and collated together to preserve the language and intent expressed by Jefferson, Madison, and the Kentucky and Virginia Legislatures in the following modern resolution protesting against and expressing the intention of the State of Utah to nullify the current usurpation attempt by the national government in regards to .
The language of this resolution is the language of Jefferson and Madison—as expressed in the Kentucky and Virginia Resolutions, applied to the modern usurpation. It eloquently clearly explains, justifies, and expresses the constitutionally-sound doctrine as the original intent of those principle founders who established the United States of America. As enunciated in the following resolution, the doctrine of nullification was a sacredly-held power of the States to check and balance a national government that violated the charter which established it. The logic is concise, clear, and unassailable. The States which created the national government retained the constitutional right of refusal when faced by a usurping government. The doctrine of nullification was considered in many instances by several States during the founding era, and was taught in Constitutional Law classes at the United States Military Academy at West Point in the early decades after the Academy was established.
Many examples of nullification exist in the history of the United States. Some occurred because some States simply refused to comply with a federal directive (such as the “Real ID Act”), others when the courts ignored the directive, and others when individual juries refused to convict when faced with an individual who violated federal law (such as often occurred in cases involving the “Fugitive Slave Act”). In light of egregious usurpations of recent modern congresses and the executive branch, it is time reinvigorate the understanding and application of the sound doctrine of nullification!
The so-called “supremacy clause” of the United States Constitution (Article VI, clause 2) only grants supremacy to the national government in the area of jurisdiction established within and by the United States Constitution. It does not create an overarching power to usurp power not granted within the Constitution. The Ninth and Tenth Amendments explicitly reiterate this fact:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
“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.”
Appropriate Constitutional processes by which un-Constitutional acts may be corrected include:
1. Repeal of the offending matter in the national Congress via the normal process defined in Article I, Section Seven of the United States Constitution.
2. De-fund the offending act to assure that it may not be carried out. Article I, Section Seven requires congressional approval of all funds to be expended by the national government, and Article I, Section Nine, clause 7 requires that no monies be drawn but in consequence of a legislative appropriation. Congress controls the nation’s money, not the Executive.
3. Seek relief through the courts.
4. Nullification by State Legislatures.
Reprisals by the Federal Government?
States which nullify an unconstitutional law or refuse compliance with an order from an unlawful agency naturally fear reprisal by the national government. This could take the form of denial of federal funds (that is how conformance is often assured in the first place) or even imprisonment of token individuals. Thomas Jefferson proposed the solution to challenges such as this, saying:
“I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.
“This is the true corrective of abuses of constitutional power…” (Bergh, The Writings of Thomas Jefferson, vol. 15, page 278)
Nullification is a valid Constitutional solution to a usurping national government.
An Act of the Legislature of the State of Utah to nullify The Affordable Care Act
RESOLVED, That the Legislature of the State of Utah, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
Resolved, That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.
Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, That the Constitution of the United States, having delegated to Congress specific, enumerated powers; and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the th day of , , and entitled, “ ” is altogether void, and of no force; and that the power to act in this matter is not granted to the United States Government by the United States Constitution.
Resolved, That the Legislature of the State of Utah doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the States are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
Resolved, That this Legislature doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former Articles of Confederation were the less liable to be misconstrued) so as to destroy their meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the States by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings, including recent acts of the national legislative, executive and federal court decisions) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles call for immediate redress.
Resolved, That this Legislature doth particularly protest against the palpable and alarming infractions of the Constitution, in the case of the “ Act” passed at the last session of Congress; which exercises a power no where delegated to the federal government, and which subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; additionally, the act exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by two of the amendments thereto.
Resolved, That faithful to the United States Constitution, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore the State of Utah is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, the State of Utah, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the act before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, and the barrier of the Constitution thus swept away from us all, no ramparts now remains against the passions and the powers of a majority in Congress to protect the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Act, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits, Let him say what the government is, if it be not a tyranny, which the men of our choice have con erred on our President, and the President of our choice has assented to. In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That the State of Utah does therefore call on its co-States for an expression of their sentiments on the aforementioned act, plainly declaring whether this act is or is not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with the State of Utah in considering the said act as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring this act void, and of no force, and will each take measures of its own for providing that neither this act, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.
Resolved, That the good people of the State of Utah, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other States; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the Legislature of the State of Utah doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this State in declaring, as it does hereby declare, that the act aforesaid, is unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this State, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
Resolved, That the Governor be desired, to transmit a copy of the foregoing Resolution to the executive authority of each of the other States, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this State in the Congress of the United States.
Agreed to: —Date—