This seems to be the question many in State Governments are asking about nullification of unlawful Federal laws………”who decides” what is unconstitutional or unlawful in the end. In this article I will not give my opinion, but let James Madison (the Father of the Constitution) give you the answer himself from Madison’s Report on the Virginia Resolutions (1799-1800)
James Madison said:
“The States then being the parties to the constitutional compact (the Constitution), and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.” (interpositioin is the same as nullification)
James Madison Rebukes Nullification Deniers
This is The Age of Ignorance. Our “intellectuals” can’t think. Our “scholars” parrot each other. The self-educated fixate on idiotic theories. Our People despise Truth and disseminate lies.
Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy Barnett, David Barton of Wallbuilders, and history professor Allen C. Guelzo, say that nullification by States of unconstitutional acts of the federal government is unlawful and impossible. They make the demonstrably false assertions that:
♦ States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it;
♦ Nullification is literally impossible;
♦ The supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; and
♦ James Madison, Father of Our Constitution, opposed nullification.
Their assertions contradict our Declaration of Independence, The Federalist Papers, our federal Constitution, and what James Madison, Thomas Jefferson, and Alexander Hamilton really said.
What are the Two Conditions Precedent for Nullification?
The deniers seem unaware of the two conditions our Framers saw must be present before nullification is proper and possible. These conditions are important – you will see why!:
♦ The act of the federal government must be unconstitutional – usually a usurpation of a power not delegated to the federal government in the Constitution; and
♦ The act must be something The States or The People can “nullify”- i.e., refuse to obey: the act must order them to do something or not do something.
What is “Interposition” and What is “Nullification”?
A State “interposes” when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition in Federalist No. 33 (5th para):
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [the Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis mine]
“Nullification” is one form of interposition.