Eds note: While attended a Paulding County 912 meeting recently and listened to Jim Sponseller talk about Nullification.  He agreed to put that presentation into a short article that explains exactly what Nullification is.

 

NULLIFICATION

Legal Theory of Principal and Agent, or, Master and Servant:

 “Nullification” is the tool that our founding fathers declared to be the ultimate way to reign in the newly created federal government should it, at any time in the future, try to exceed the authority given it by the people and the States through the Constitution.

“Nullification” is a very imposing word that would suggest a complicated idea underlying it. But that is not the case. A very simple legal principle lies behind its use. This principle once understood is absolutely empowering to the people and the States.

You probably have heard of a power-of-attorney. A power-of-attorney is when a person (the Master) gives another person (the Servant) the written authority to do certain specific acts for the Master. But only those certain specific acts; nothing else.

For example, the Master gives the Servant the authority to purchase corn for the Master. If the Servant signs a contract for the purchase of corn for the Master, then the Master is legally required to complete the contract and must pay for it and take possession of it.

If, instead, the Servant signs a contract for the purchase of soybeans for the Master, the Master is not legally required to complete the contract and does not have to pay for it, nor to take possession of it, because the Master never gave the Servant the authority to purchase soybeans for him.

In our soybeans example, the Master “nullifies” the Servant’s contract (makes it invalid, unenforceable, not binding on the Master) for the purchase of soybeans, because the Servant never had the authority to enter into that contract for the Master.

Now the concept of “Master and Servant” was very familiar to our founding fathers. In fact, they discussed this principle at length during the deliberation that took place regarding the creation of a limited federal government.   Let me quote Alexander Hamilton to you.

No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the SERVANT is above his MASTER; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they have forbid.

People seem to have forgotten that the 13 original States existed before there ever was a federal government. People seem to have forgotten that the 13 States formed the federal government.

The 13 States (as the Master) agreed to form the federal government (who was the Servant) and give the Servant the specific authority to do certain things, and certain things only.

The 13 States wrote up a power-of-attorney document for this purpose of creating a limited federal government they but didn’t call it a power-of-attorney. They called it a “Constitution”.

Just like a power-of-attorney our Constitution specifically gives only certain limited authority to the federal government. But, unlike a power-of-attorney, it also makes it clear that there are certain things that the federal government can’t do and those things are listed in the first Ten Amendments to the Constitution (the Bill of Rights).

“Nullification” as a Major Issue in the Ratification by the States of the Constitution:

When the Constitution was drafted and presented to the States to be ratified there was much resistance to ratifying it.

Most people in the 13 States felt that a federal government would abuse its limited power and authority and become dictatorial.

Our founding fathers had to convince the people of the 13 States that they should ratify the Constitution and they wrote the “Federalist” papers in support of ratification. Thomas Jefferson and James Madison both wrote articles in support of ratification.

And because the people were afraid of the federal government exceeding its authority, the principle of “nullification” was argued by Jefferson, Madison and others to show the people that there was a strong defense to the federal government exceeding its authority. James Madison in Federalist Paper #46 discussed at length the powers retained by the States (the Master) over the federal government (the Servant) and how “nullification” was the tool to be used to reign in the federal government.

At the time of ratification (and for 60 years thereafter) nullification was well known, well understood, and well discussed.

Thomas Jefferson also argued that nullification was the best method for the States to use to reign in the federal government. Jefferson felt that only the States (being the Master) were the ones who could decide if the federal government (the Servant) had exceeded the authority given it by the States through the Constitution.

Jefferson said that the decision could not be left up to the federal government to decide what authority had been given to it by the States through the Constitution. Jefferson said that the decision could not even be left up to the US Supreme Court or any federal court. Jefferson explained that the federal government (the Servant) consisted of 3 parts: the executive, legislative and judicial. They were all part of the federal government, (the Servant) and the Servant could not tell the Master (the States) what authority it had been given. Only the Master (the States) could make that determination.

Let me present to you one statement Jefferson wrote on whether the federal courts, including the US Supreme Court, should make the final decision on what was constitutional:

 “To consider the Judges of the Supreme Court as the ultimate Arbiters of Constitutional questions, would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society but the people themselves.

 It is obvious that the Sates were convinced that they retained control over the federal government’s authority or the States would never have ratified the Constitution. They ratified it in great part because of the arguments made by Jefferson and others on their retained power of nullification.

 

Jim Sponseller
Paulding