My last article (https://eclecticmusings.blog/2021/04/12/peaceful-means-what-can-we-do/) began to address the topic of peaceful means of restoring liberty. The two general ways discussed were first, the need to be extremely cautious and research the HISTORY of political candidates when choosing local and state officers because they are the first line of defense against usurpation of authority by the federal government, and second, I briefly outlined the position of the county Sheriff as the next line of defense while promising to address the final peaceful means, nullification, in my next article. Nullification can take several forms so we’ll address each of them individually.
Nullification means to make something of no value or consequence. Thus, in the context of restoring liberty, nullification most often refers to the Constitutional power guaranteed to state governments, local governments, and citizens to nullify unconstitutional laws, regulations, and executive orders without resorting to the Supreme Court.
Nullification can be accomplished by actions of the state legislature, as is currently happening in multiple states that have already passed, or are considering passing, legislation to nullify federal overreach in a couple of areas – most notably regarding the Second Amendment rights of their citizens.
On a state or local level, citizens themselves can respond to laws they believe violate their constitutional and/or natural rights via a referendum. This generally requires a certain percentage of the registered voters signing a petition to force an election which will then either affirm or nullify the law in question.
One additional method of nullification, not often spoken of in that phrase yet still a valid method of nullification, is the removal of elected officials before their term expires by the citizens via a recall (aka referendum) election such as Governor Newsom is now facing in California.
Anciently, recall elections date back at least as far the Athenian constitution. In U.S. history, they date from the Massachusetts Bay Colony in 1631 and the Articles of Confederation, both pre-dating the U.S. Constitution. On May 29, 1787, in the Constitutional Convention, Governor Randolph proposed that members of the National Legislature, i.e. Senators and Representatives, should be subject to recall in accord with historical precedent. The failure of the Convention to include this right of the people in the final draft of the Constitution provided fertile ground for the anti-federalists to stir negative emotions toward the proposed Constitution. They lost out in the end, and so did we when we lost the right to recall these officers.
Currently, there are only 23 states that allow recall of state and local elected officials who do not carry out the will of the people. Utahns are among those who no longer have that ability thanks to career politicians who do not want to answer to those who both elected them and pay their salaries – a liberty we have lost to ignorance and slick talkers.
RULE OF LAW
Many who are opposed to nullification, on any level, make the argument that we must be subject to the rule of law and that nullification destroys the rule of law.
Those who make this claim are apparently unaware that the Constitution is the supreme law of the land and that it provides for nullification by state governments AND citizens via both Article VI and the 10th Amendment.
Nullification is therefore not lawlessness, rather, it is utilization of an oft overlooked and forgotten portion of the Supreme Law of the Land that recognizes and acknowledges the sovereignty of the citizens.
Article VI paragraph 2: of the US Constitution states in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land…
Plainly said, according to Article VI, any law which violates the Constitution is null and void.
Neither Congress via legislation nor the President via Executive Order nor any agency via rule or regulation has the authority to make any law, rule, or regulation which goes against the Constitution. End of story, or at least it should be as long as we claim to be a constitutional republic.
The 10th Amendment states:
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.
Simply stated, the ONLY power and authority the federal government LEGITIMATELY holds is that power which is specifically outlined in the Constitution.
ALL OTHER POWERS ARE EXCLUSIVE TO THE STATES and THE PEOPLE and ANY power the federal government assumes or takes which is not granted to it IN THE CONSTITUTION is illegitimate. There is no provision in the Constitution for any group of legislators, nor citizens, to give the federal government unconstitutional or “extra Constitutional” powers.
Of course, for these protections to be effective, the people, as well as their state legislators and governors must understand the Constitution and the rights and protections it guarantees, which requires appropriate education and especially personal study of the Constitution and the principles of liberty upon which it was founded.
In the words of Thomas Jefferson:
“I know of no safe depositor of the ultimate powers of 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.
“It is an axiom in my mind that our liberty can never be safe but in the hands of the people themselves, and that too of the people with a certain degree of instruction. This it is the business of the state to effect, and on a general plan.” – Thomas Jefferson to George Washington, January 4, 1786
EXAMPLES OF CITIZEN NULLIFICATION
Probably the two most famous examples of nullification in US history are found in first, the Underground Railroad that assisted escaping slaves in violation of the law, and at potentially great sacrifice of personal liberty and assets, and second, the widespread crafting of home brews during Prohibition.
Could there be any better example of a law which was legal but not moral than the laws of various states which allowed slavery and severely punished those who helped slaves escape? None that I know of!
Legality must NEVER be the deciding factor of what is moral and right. NEVER!
A modern example of nullification can be seen driving on nearly any highway in the US where citizens routinely nullify the speed limits set at ridiculously low levels during the oil embargo of the 1980’s and since removed throughout most of Europe, yet remaining in the US, with some modifications.
Citizen nullification of these types is not made without risking property/assets, and potentially liberty and/or life, but, as the first two examples show, if enough people choose to nullify immoral and/or unconstitutional laws, even when they are amendments to the constitution as Prohibition was, they can be effectively abrogated.