derek sheriff - nullification - it's official

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Derek Sheriff – Nullification: It’s Official

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Nullification : It’s Official

by Derek Sh er i f f 28. Jan, 2010http://www.tenthamendmentcenter.com/2010/01/28/nullification-its-official/

While speaking to a large crowd of over a thousand people on the campus of Arizona StateUniversity last December, Congressman Ron Paul mentioned one thing that might come aboutas the result of the federal government habitually ignoring the Constitution: Nullification.

‘Ron Paul and Nullification’ video: http://www.youtube.com/watch?v=1ch_7Vs13E8

About five minutes into the video segment which you’ll find below, he said, “There’s not muchattention paid to the Constitution in Washington. There’s not much attention paid to it by ourexecutive branch of government. And we don’t get much protection from our courts. So onething that might finally happen from this if the people finally feel so frustrated that they can’t getthe results out of Washington — They’re going to start thinking about options. They might start

thinking about nullification and a few things like that.”

As someone who attended that rally and was doing my best to represent my state’s chapter of The Tenth Amendment Center ( http://arizona.tenthamendmentcenter.com/ ), I know I cheered very loudly and was very pleased when the rest of the crowd applauded enthusiastically.

For anyone who is unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president, Thomas Jefferson, when he authored what came to be called theKentucky Resolutions of 1798 ( http://tinyurl.com/y8rplal ). The resolutions made the case thatthe federal government is a creature of the states and that states have the authority to judge theconstitutionality of the federal government’s laws and decrees. He also argued that states should

refuse to enforce laws which they deemed unconstitutional.

James Madison wrote a similar resolution for Virginia that same year (http://tinyurl.com/y8rplal ), in which he asserted that whenever the federal governmentexceeds its constitutional limits and begins to oppress the citizens of a state, that state’slegislature is duty bound to interpose its power to prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.




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These two documents together came to be known as The Virginia and Kentucky Resolutions (orResolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, andthe phrase, “Prin ciples o f ‘98 ” ( http://en.wikipedia.org/wiki/Principles_of_%2798 ) becameshorthand for nullification and / or interposition. Over time, “The Principles of ‘98″ would beinvoked by many other states, many times for a variety of issues (see:http://tinyurl.com/bmxs7u ).

Getting back to Ron Paul’s speech in December at ASU, Congressman Paul qualified hisprediction about the revival of nullification by saying the following:

“But my suspicion is that there will never be official nullification or secession, butif the [federal] government continues to fail, and they can’t deliver anything..checks bounce.. that we will be forced to take care of ourselves. And we will beforced to almost ignore everything they do.”

Less than a week after the speech I attended at ASU, Congressman Paul was interviewed by Mike Church on his radio show ( http://www.mikechurch.com/ ). When Mike asked him whathis thoughts were on nullification, Ron Paul responded by saying:

“I think it’s a great idea. It w as never really successful in our history. But I think it’s going to grow in importance. And I think it’s going to grow because thegovernment, the federal government will be seen as inept and ineffective. And Ithink it’ll almost be de facto in the sense that the states will eventually just ignoresome of the mandates.”

Here I would like to pause for a moment and point out that I am not usually in the business of disagreeing with Congressman Ron Paul. I would hardly need one hand to count the number of times that I have actually disagreed with him on any issue of real substance. I am a greatadmirer and supporter of Congressman Paul, who is undoubtedly very supportive of the idea of

state nullification, even if he has doubted its efficacy in the past. However, in spite of all this, I would like to make two observations.

First, nullification has, in fact, been somewhat successful in the past (See:http://tinyurl.com/y95az5a ) and more recently as well ( http://tinyurl.com/yd5v7k4 ). Second,as President Obama loves to say, “Let me be clear”: “Official” nullification has ALREADY HAPPENED.

Before I explain why “official” nullification has already happened, let me briefly give someexamples of what nullification is NOT.

Nullification is not secession or insurrection, but neither is it unconditional or unlimitedsubmission. Nullification is not something that requires any decision, statement or action fromany branch of the federal government. Nullification is not the result of obtaining a favorablecourt ruling. Nullification is not the petitioning of the federal government to start doing or tostop doing anything. Nullification doesn’t depend on any federal law being repealed.Nullification does not require permission from any person or institution outside of one’s ownstate.

So just what IS “official” nullification you might be asking?




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Nullification begins with a decision made in your state legislature to resist a federal law deemedto be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in areferendum. It may change your state’s statutory law or it might even amend your stateconstitution. It is a refusal on the part of your state government to cooperate with, or enforceany federal law it deems to be unconstitutional.

Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. Itcannot be overruled by the Supreme Court. It is the people of a state asserting theirconstitutional rights by acting as a political society in their highest sovereign capacity. It is themoderate, middle way that wisely avoids harsh remedies like secession on the one hand andslavish, unlimited submission on the other. It is the constitutional remedy for unconstitutionalfederal laws.

With the exception of a Constitutional amendment, the federal government cannot oppose(except perhaps rhetorically), a state’s decision to nullify an unconstitutional federal law withoutresorting to extra-legal measures. But such measures would more than likely backfire, sincemost Americans still affirm that might does not make right.

There is no question as to whether or when “official” nullification will happen: It has ALREADY HAPPENED. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it. According to the Tenth Amendment Center:

“25 states over the past 2 years have passed resolutions and binding lawsdenouncing and refusing to implement the Bush-era law [REAL ID Act]..Whilethe law is still on the books in D.C., its implementation has been “delayed”numerous times in response to this massive state resistance, and in practice, is

virtually null and void.”

But that’s not all; another example of “official” nullification has occurred in the form of anunlikely states’ rights ally: Medical marijuana (See: http://tinyurl.com/y98a4zf ).

There was a time when the federal government took the Constitution seriously enough thatCongress did what is required in order to enact a nationwide ban on a substance. Even thoughthe experiment would eventually be seen by most Americans as a mistake and a failure, the 18th Amendment was passed and the era known as “Prohibition” began. Four years later, it wasrepealed.

When it came to marijuana prohibition, however, the feds had another trick up their sleeve. Allthree branches of the federal government would agree on a very novel, liberal interpretation of the “commerce clause” which would allow them to regulate virtually any substance, includingmarijuana, even though there’s supposedly no “legal” commerce in the plant. Since that time,the federal government has managed to claim, with a straight face, as it were, that a plant grownin your back yard, never sold, and never leaving your property, is somehow able to be completely banned by the federal government under the interstate “commerce clause.” The only problem with their claim is that the states just aren’t buying it.




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Fourteen states have actively refused to comply with federal laws on marijuana, and it looks as if six more are about to join the effort. In a recent blog post (http://tinyurl.com/y98a4zf ), Mark Kreslins observes:

“..medical marijuana now poses a real threat to the enforcement power of theFederal Government. With state after state defying Washington DC over this

issue, Washington DC has a choice to make; enforce their law s based on a very liberal interpretation of the Commerce Clause by sending thousands of DEA agents into all fifty states…or…look the other way. Thus far, they’ve chosen tolook the other w ay for if they create the appearance of a Federal takeover of police powers in the States, they will fully expose their extra-constitutional behavior and provoke a direct confrontation with the States who will use the10th Amendment (hopefully) to defend their prerogatives.”

Whatever your view may be regarding marijuana use, medical or otherwise, one thing isapparent: “Official” nullification has happened, and it works! Washington will have to get usedto it.

What remains to be seen, however, is whether in addition to “officially” nullifyingunconstitutional federal laws, state governments will be willing to use their power to “officially”interpose themselves between agents of the federal government and the people of their state. Inthe unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defianceof unconstitutional federal laws, will that state’s government have the courage to hamper or evenneutralize such extra-legal measures?

There are a whole host of peaceful actions that a state government can adopt if that day comes orappears to be just over the horizon. These measures range from county sheriffs requiring thatfederal agents receive written permission ( http://tinyurl.com/y8gx37e ) from the sheriff before

acting in their county, to setting up a Federal Tax escrow account ( http://tinyurl.com/ydkxvcy ), which could potentially de-fund unconstitutional federal activities by requiring that all federaltaxes come first to the state’s Department of Revenue.

Besides state interposition, the other thing Washington would have to consider, is whetherenough of their agents would actually obey orders to punish people for exercising theirconstitutional rights. There is a significant chance that enough of them would either publicly orprivately decide in advance to ignore such orders ( http://tinyurl.com/n5onxa). As theprobability of this increases, it becomes more likely that Washington will not risk overplaying itshand. The reality is that Washington just doesn’t have the manpower to enforce all theirunconstitutional laws if enough states choose to defy them.

Of course, it all depends on the people of the several states: ordinary people like you and I. Although I’ve discovered that there are more elected representatives at the state level who arecommitted to acting in a courageous and principled manner (http://tinyurl.com/yljqsvq) than Iever dared hope, most of their peers lack such a brave commitment. Most of them will stick theirhead in the sand or sit on the fence until they determine which way the wind is blowing. And soit’s our opinion, not the opinion of the American people in aggregate, but our opinion as citizensof our respective states, that will influence the decision of our state representatives to eitherstand tall or to kneel down and knuckle under.




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But do you even know the men and women who represent you? I’m not talking about those whorepresent you in Washington, but rather in Phoenix, Salem, Sacramento, Salt Lake City, Denver, Austin, Oklahoma City, Tallahassee, Atlanta, Nashville, Richmond, Harrisburg, Indianapolis,Columbus and Springfield.

If you don’t know them, and you care about our republic, you should make it your highestpriority to get to know them and establish rapport with them as soon as possible.

For any of you who really want to preserve our union, and at the same time retain your rightsguaranteed by the Bill of Rights, I can’t say it any better than 2008 presidential nominee of theConstitution Party, Chuck Baldwin:

“..it is absolutely obligatory that freedom-minded Americans refocus theirattention to electing State legislators, governors, judges and sheriffs who willfearlessly defend their God-given liberties as plainly a nd emphatically a s Iknow how to say it, I am telling you: ONLY THE STATES CAN DEFEND OUR LIBERTY NOW! ..this reality means we will have to completely readjust ourthinking and priorities.”

Derek Sh er i f f is an ex-Green Beret turned activist and the State Chapter Coordinator for the Arizona Tenth Amendment Center ( http://tinyurl.com/yelp9sf ).

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part isgladly granted, provided full credit is given.

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derek sheriff - nullification - it's official

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