In 1798, amid the Constitutional controversy surrounding the heinous Alien and Sedition Acts, Thomas Jefferson and James Madison composed resolutions that formulated the “rightful remedy” to centralized aggression against the states and the people. The Virginia and Kentucky Resolutions were the Jeffersonian answer to centralized aggression and Constitutional usurpation that would challenge the Federal Government, and give the people and the States protection against such aggression.
Consider Jefferson’s own words, in his carefully constructed Kentucky Resolutions and give moment’s pause to our own situation now: “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.”
Jefferson’s Constitutional thought went beyond the “Tory Hue” of Sir William Blackstone, who was the English Whig Jurist, whose Common Law legalistic theory was prevalent in the colonies in the years preceding the revolution. Jefferson abhorred the idea of blind loyalty to the state, or centralized power, when usurpations of common law, and practices were largely ignored and injurious to the people. We all know the rest, the Declaration of Independence and the future Constitutional battles waged in the years following the Revolution.
Taking the reigns from Jefferson, John C. Calhoun wrote his own thesis on Nullification in which he called for a “Concurrent Majority”. “His proposed solution was the concurrent majority, essentially a constitutional method of enabling minorities to block the actions of majorities that might threaten the rights of the minority, making them, in essence, veto groups.” Cahoun’s ideas were largely spawned as a result of the tariff crisis of 1828 (Historically called the “Tariff of Abominations”).
Detractors of Nullification, of course, will likely tell you that it is unconstitutional, and then present a discourse on Slavery, Racism and inherent bigotry of the founders. This of course comes from the modern, traditional reading of history that they are spoon fed in government classrooms. This whole concept is spawned largely from the Constitutional belief of Henry Clay, and his intellectual heir, Abraham Lincoln, who held the belief that the Federal Government preceded the states. Thomas DiLorenzo in his books, “Lincoln Unmasked”, “The Real Lincoln”, and “Hamilton’s Curse” dispels this myth, and shows that it was physically impossible for the Federal Government to have preceded the States, for the Federal Government was composed by the States which existed before it.
Though some may say that the Civil War largely settled the issue of Nullification, my question would be, “Why is its practice still in use?” “Why are people so afraid to say it?” In this past election, several states sought to defy Federal Law by decriminalizing marijuana. Cities and local government continue to offer sanctuary to undocumented immigrants in express defiance to Federal Law; and Several States have outright refused to cooperate with the mandates of ObamaCare.
In the past week, there has been conversation about secession, resulting from the outcome of the 2012 Presidential Election. While I am not one to ever rule out this prescription, I do think it’s premature. Those who would detract from secession are outright admitting the primacy of the state, and implicitly deny the merit of our own seperation from England during our War for Independence. In the years to follow, as new Supreme Court Justices are appointed, as more suffocating laws passed, it’s not secession that should enter into our discourse, but a state by state account of what the rightful remedy should, and ought to be. The states, with full backing by the Tenth Amendment, can and should consider Nullification as the option to protect its people from the aggressions of a distant and foreign power, i.e. the Centralized Government in Washington. This is the rightful remedy and I completely endorse its practice.