Speech to the Grand Opening of the Louisiana Chapter of the Tenth Amendment Center
By Walt Garlington
Reprinted With Permission
I would venture to say that most of us are here tonight because we believe that the federal government is acting outside the boundaries set for it in its charter, the Constitution of the united States. So how do we deal with that? Do we rely on one branch or department of the federal government to halt the abuses of others? We have seen over the last century and more that this is futile.
There is another option to consider, and it is the main topic I wish to discuss with you tonight: state nullification.
State nullification, whereby a state refuses to comply with a federal measure that is not authorised by the Constitution, was first formulated in declarations of ratification such as Virginia’s in 1788 and later received a more formal definition in 1798 when Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, even though it had been practiced prior to that date.
In the Kentucky Resolutions, Jefferson laid down a series of constitutional principles. It began,
“Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government…”
That statement alone is enough to shock many people today. But it gets better, much better.
“…but that by 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 party, 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 parties 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.”
Likewise, Madison in the Virginia Resolutions stated the following:
“…in case of a deliberate, palpable, and dangerous exercise of other powers [by the federal government], 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.”
Here we have both Jefferson and Madison explaining that each state, not the federal government, is to judge for itself in the final event whether a legislative act or an executive order or a judicial ruling is in violation of the U. S. Constitution because the states are the ones who created the federal government by writing and ratifying the U. S. Constitution.
This is alluded to in the Constitution’s 10th Amendment, which Jefferson, writing elsewhere, declared to be the “foundation of the Constitution”: “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.”
Louisiana’s own constitution contains this provision: “The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.”
And wherever a right is declared, there must also be a way of protecting it, or else the declaration is meaningless. State nullification, as Madison and Jefferson explained, is a proper method of protecting our rights and liberties from injury by the federal government.
Importantly, this procedure allows constitutional controversies to be discussed and remedied without states having to resort to secession. Of course, some of us think that the Union has grown too large for its own good. But that is a speech best saved for another day.
The immediate reaction of some of the other states to the resolutions of the KY and VA legislatures was to reject them as something unconstitutional and dangerous to the Union. Some of those same states would very soon have a change of heart, however.
Take the example of Massachusetts, one of the states critical of the KY and VA Resolutions. Its State Legislature declared at the time, “The people, in that solemn compact which is declared to be the supreme law of the land, have not constituted the State legislatures the judges of the acts or measures of the Federal government.”
But in 1809, when a federal trade embargo began to harm the commercial interests of Massachusetts and other New England states, the MA legislature declared the Embargo Acts “in many particulars, unjust, oppressive, and unconstitutional” and that they were “not legally binding on the citizens of this State.”
But they weren’t finished.
When a new embargo law, more restrictive than the previous one, became effective in 1813, the MA legislature would loudly condemn and reject it as well, saying,
“A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the States, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor his victim.”
Other New England states would make similar pronouncements – and act on them – while the Embargo and the War of 1812 lasted.
Moving forward some years, there was the clash of the States with the Bank of the United States, which was chartered by the federal government. Some states like Indiana and Illinois amended their constitutions to prohibit the national bank from operating in their states. Other states – North Carolina, Georgia, Maryland, Tennessee, Kentucky, and Ohio – levied taxes of up to $60,000 per year on the branches of the national bank within their states – high sums of money in those days.
Before we go on, I would like you all to imagine the possibilities that lie in these two ideas alone. First, having any or all authorities – parishes and counties, states and cities – throw off the straight-jacket of McCulloch v. Maryland and heavily taxing destructive federal departments within their borders such as the EPA, HHS, or Department of Education, to name a few. Or simply amending our State Constitutions to forbid their presence altogether. Two very good alternatives, if we would be brave enough (and creative enough) to try them. But let us return to the bank controversy.
Ohio provides us with one of the more humorous stories from this era. Despite the McCulloch v. Maryland decision of the U. S. Supreme Court in February 1819 that decreed that the states had no power to tax or otherwise impair the execution of any federal law, the Ohio State Legislature later that year imposed a tax of $50,000 on both of the national bank’s two branches operating in Ohio.
The national bank would not pay the tax, leading the State Auditor to dispatch agents to collect it, despite an injunction by a federal judge ordering them not to.
I will quote the rest from James Jackson Kilpatrick’s excellent book on states’ rights, The Sovereign States:
“Entering the bank’s branch office at Chillicothe, on the morning of September 17[, 1820], [John L.] Harper [deputy of the Ohio State Auditor] made one last request for voluntary payment. When this was denied, he leaped over the counter, strode into the bank vaults, and helped himself to $100,000 in paper and specie. He then turned this over to a deputy, one H. M. Currie; and Mr. Currie, stuffing this considerable hoard into a small trunk, with which the party thoughtfully had come equipped, loaded the trunk into his wagon and set off down the road to Columbus.”
There is more to that story, but time will not allow it to be told. Suffice it to say, state opposition to the national bank would continue for many more years, until in 1834 the bank’s charter expired and the U. S. Congress chose not to renew it.
A contrast is probably becoming fairly clear by now: the courage of state officials during the years of the Early Republic on one hand, and the cowardice of many of our state officials today on the other. This is not an unjust view.
During roughly this same period, South Carolina was involved in perhaps the most famous nullification case in the entire history of the United States. From 1816 to 1828 tariffs on manufactured goods were raised substantially by the federal government to protect domestic industries from foreign competition. This came at the price of placing a nearly intolerable economic burden on South Carolina and the other agrarian states who were forced to pay much higher prices for items essential to day-to-day living.
The constitutional crisis that erupted over whether the federal government may levy tariffs to protect domestic industry as opposed to simply raising revenue (the latter is the only one of the two sanctioned in the U. S. Constitution) gave rise to some of the finest constitutional writings our country has seen, as Vice President and later Senator John Calhoun of South Carolina undertook the task of giving flesh to the bones of the theory of nullification. As time is short, I will give you only a brief excerpt from one of his best works, The Ft. Hill Address of 1831:
‘The great and leading principle is, that the General Government emanated from the people of the several States, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political community; that the Constitution of the United States is, in fact, a compact, to which each State is a party, in the character already described; and that the several States, or parties, have a right to judge of its infractions; and in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia Resolutions, “to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.”
‘This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may—State-right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral truth whatever; and I firmly believe that on its recognition depend the stability and safety of our political institutions.’
I must mention only in passing the actions of Maine, Vermont, Massachusetts, Ohio, Michigan, and several other states from New England and the Old Northwest, who all interposed their state powers to nullify federal fugitive slave laws from the 1830s through the 1850s, and even portions of the U. S. Supreme Court’s Dred Scott decision of 1857.
Despite all these successes, the states’ authority was dealt a heavy blow by The War for Southern Independence. The States – from all regions of the country – exhausted and depleted, were unable and unwilling to raise serious protests against the federal government after combat had ceased. All branches of the federal government thereafter took on new powers which had formerly been exercised exclusively by the state and local governments, private associations, families, and individuals.
But an extraordinary thing has begun to happen of late. The creature left for dead at the end of The Civil War – state interposition against federal acts – is beginning to stir again. The states are beginning to reassert their powers, to defend themselves against an ever more expansive federal government by ignoring laws like the REAL ID and PASS ID Acts, No Child Left Behind, the incandescent light bulb ban, federal gun, drug, food, and wildlife regulations, the indefinite detention provisions of the National Defense Authorisation Act, and the federal health care takeover.
What we have reviewed together is but a fraction of the cases of state interposition that could have been recounted from our history. Also omitted was any mention of state interposition by governors and state judges; any mention of jury nullification, which played a large role in New England’s embargo quarrel mentioned earlier, whereby the jury acknowledges that the defendant is technically in violation of a law, but because they consider the law unjust, they declare the defendant “not guilty”; nor any mention of parish or county interposition, which has taken on a new energy thanks to the former sheriff of Graham County, Arizona, Richard Mack.
I could close this right now, with an appeal to take up the banner of nullification and to fight under it day and night, and the Establishment would be mightily unnerved. For they rely on a highly centralised structure to accomplish their work of wealth redistribution, regulatory control, global meddling, currency manipulation, and the rest of it. Any tilt in the opposite direction will normally result in your being branded a radical, a racist, an extremist, or some other nasty sort of name.
Because the state veto would interrupt the plans of the Elite to exploit the people of the several States for their own personal benefit, I fully support it. However, I hasten to add this: I believe that in the end, we cannot rely on state officials to check the abuses of power of the federal government. Most state legislators, judges, and governors are cut from the same cloth as federal officials, being ambitious men with few moral scruples, and bankrolled by the same powerful few who fund and influence federal officers. And this warning goes for any politician chosen from an electorate of more than a few hundred people.
No, we must look elsewhere for the solution, to the very core of the problem. And what we find is that the disintegration of real community has left us vulnerable to all this oppression and injustice.
The wide acceptance of the notion that happiness is achieved mainly by improving one’s economic status has led to a collapse of settled community life. Family members scatter to the four winds in search of a job offering a salary that will enable them to enjoy the hi-tech gadgets, cars, houses, and other novelties included in the much-vaunted ‘high standard of living’ held up for all of us as the greatest good. Because of this constant moving and uprootedness, we are mostly strangers to one another now. And it is this condition, this alienation of one from another, that has allowed the government to grow to its present morbid size since what was once accomplished by the united effort of close-knit, extended families, churches, charities, and guilds who were content with and loved the place where they lived, now must be done by bureaucrats whom we do not know and who make their decisions based on rules originating in distant cities like Washington, D.C., or Baton Rouge, written by people we will likely never meet face-to-face.
The individual now stands alone before the government, naked and powerless. What he needs, and what artificial clubs and organisations cannot provide, is an organic, authentic community: an institution capable of bestowing identity and providing soil for roots, consisting of members who share the same basic beliefs, and who are willing to sacrifice for and protect one another in a pinch.
But what would this look like in practice? Well, if a farmer is being harassed unjustly by a bureaucrat, those who are his neighbours ought to gather round him and run off the intruder. Or if a doctor is being oppressed by some unnecessary rule, those who are also doctors should band together to protect him from it and ensure his continued livelihood.
In all of this we see the image of the Trinity that is stamped upon our nature: ‘…man, like God, realizes his true nature through mutual life,’ Bishop Kallistos Ware reminds us in his little book The Orthodox Way. ‘Each human being is unique, yet each in uniqueness is created for communion with others’ (P. 53).
If we hope to meet any success in opposing our Leviathan government with its hordes of overbearing government deskmen and prying police, vibrant, settled, local institutions like these will have to be restored, for, as in most contests, there are no surer allies than the familiar and trusted kith and kin. And the more self-sufficient these communities are, the more capable of producing their own food, energy, and crafts; educating their own children; policing their own streets; and on and on, the less danger they will face from outside harassment.
My advice, then, in short, is this: Do both. Encourage your state and local officials to interpose and nullify, but at the same time, build up families and neighbourhoods and guilds that can protect their members from injustice without the aid of the state, parish, or city, if need be.
In closing I would like to read you two short statements, one from Samuel Adams and the other from Pres George Washington’s last will and testament.
Samuel Adams said, “The liberties of our country, the freedoms of our civil Constitution are worth defending at all hazards; it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors. They purchased them for us with toil and danger and expense of treasure and blood. It will bring a mark of everlasting infamy on the present generation – enlightened as it is – if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of designing men.”
From Pres Washington: “To each of my Nephews, … I give one of the Swords or Cutteaux of which I may die possessed…. These Swords are accompanied with an injunction not to unsheath them for the purpose of shedding blood, except it be for self defence, or in defence of their Country and its rights; and in the latter case, to keep them unsheathed, and prefer falling with them in their hands, to the relinquishment thereof.”
I do not set these lines before you as a call to bloody revolution but rather as an appeal to imitate the noble example set before us by Pres Washington, Samuel Adams, and their fellow statesmen, clergy, and soldiers from generations past – to fight for our inherited rights and liberties until we can fight no more.
1. James Jackson Kilpatrick, The Sovereign States. Find link at http://lassc.wordpress.com/essential/
2. Forrest McDonald, States’ Rights and the Union.
3. William Bennett, Our Sacred Honor.
4. T. Jefferson & J. Madison, Kentucky and Virginia Resolutions of 1798. Find link at http://lassc.wordpress.com/essential/
5. John Calhoun, Ft. Hill Address of 1831. Find link at http://lassc.wordpress.com/essential/
6. Tenth Amendment Center, http://www.tenthamendmentcenter.com/
8. Essential Liberty Pocket Reference Guide, EssentialLibertyProject.US
10. Bishop Kallistos Ware, The