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April 11th, 2010

THE FOLLY OF ‘98

constitutionWritten by Nathan Tucker

In the aftermath of the passage of Obamacare, 18 states have joined together to file suit in order to have the act declared an unconstitutional power grab by the federal government.  There are some commentators, however, who have urged a different approach to this and other unconstitutional acts of Congress—the Principles of ’98.

By this they refer to the Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison respectively, which declared that individual states are free to declare unconstitutional acts of Congress “void, and of no force.”

The second Kentucky Resolution, passed in 1979, reads

That, if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence:

That the principle and construction, contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism—since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers:

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy. (Emphasis original).

The Principles of ’98, which were immediately condemned by ten other state legislatures, provided the foundation for the Hartford Convention, the Nullification Crises of 1832, and eventually session and the Civil War.  The basis underlying this folly is the misconstruction of our form of government from one of We the People to a confederacy of states.

Building on this idea of a confederacy, the Folly of ’98 holds that two co-equal sovereigns—the federal government and the states—can co-exist in the same union.  But such coexistence is impossible—either the states must yield to the federal government or the federal government must yield to the states.  If we are to exist as one nation, federal law must, as the Constitution puts it, be “the supreme law of the land.”

But the Folly of ’98 goes a step further and argues that, not only are the federal and state governments co-equal, but that each state is a co-equal sovereign to each other.  Such a theory makes a mockery of this “confederacy” of the states because it gives the minority power over the majority.  For if a significant minority of states threatened not to obey a law passed by Congress, it would do Congress little good to pass it, resulting in the transformation of our government from majoritarian representation of We the People to a system much like the United Nation’s Security Council in which one member has a veto on all the others.

The natural outcome of such a stalemate among states who are equal sovereigns is armed conflict.  The Folly of ’98 makes secession and civil war not only a viable but a likely alternative for disputing states who are unable to find agreement on essential issues such as commercial regulations, a national bank, or the mobilization of national guard troops for war.

And armed conflict is all the more likely when there is no longer any national court system to arbitrate disputes.  For if the states can nullify Congressional acts such as Obamacare, than certainly they can also nullify federal court rulings on issues such as national regulations, abortion, and Miranda warnings.  But without resort to the courts, there is only resort to the sword.

No matter how disguised it is in constitutional shenanigans, the Folly of ’98 has no room in our national debates, for in the end it leads to disunion, rebellion, and civil war.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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