On April 18, 2012, the Virginia Assembly overwhelmingly adopted HB1160 (Marshall, R.G.), an act to prevent any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the detention of a citizen in violation of the United States Constitution, the Constitution of Virginia, or any Virginia law or regulation. (Taken from the text of the bill.)
Be it enacted by the General Assembly of Virginia:
1. § 1. Notwithstanding any contrary provision of law, no agency of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, political subdivision of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, employee of either acting in his official capacity, or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty, shall knowingly aid an agency of the armed forces of the United States in the detention of any citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 1021) if such aid would knowingly place any state agency, political subdivision, employee of such state agency or political subdivision, or aforementioned member of the Virginia National Guard or the Virginia Defense Force in violation of the United States Constitution, the Constitution of Virginia, any provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code.
The provisions of this section shall not apply to participation by state or local law enforcement or Virginia National Guard or Virginia Defense Force in joint task forces, partnerships, or other similar cooperative agreements with federal law enforcement as long as they are not for the purpose of participating in such detentions under § 1021 of the National Defense Authorization Act for Fiscal Year 2012.
Nearly two hundred and fourteen years previous to HB1160’s passage, James Madison penned the Virginia Resolution of 1798. On December 24 of the same year, the Virginia Assembly passed the Virginia Resolution, which contained the nullification ingredient known as “interposition.” Interposition means that when the federal government acts outside its limited, enumerated powers of the Constitution, it is the States’ responsibility, their duty, to “interpose” the encroachment of the federal government’s action, thus making the actions of the federal government null and void.
The following year, Thomas Jefferson introduced the term “nullification” in his draft of the 1799 Kentucky Resolution. The term “nullification” didn’t make it into the final measure; however, the phrase “declaring acts void and of no force” were included.
Jefferson and Madison’s Virginia and Kentucky Resolutions were created to openly resist the federal government’s unconstitutional mandates contained in the Alien and Sedition Acts.
REACTION TO VIRGINIA & KENTUCKY RESOLUTION
George Washington was so appalled by [the Resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” (Wikipedia, Nullification)
Most other States of the Colonial Era rejected the language of the Resolutions. Seven States adopted formal denunciations and sent them to Kentucky and Virginia—Delaware, Massachusetts, New York, Connecticut, Rhode Island, New Hampshire, and Vermont.
PRESUPPOSITION
In United States legislative culture, laws are presupposed to be constitutional when approved by lawmakers and until determined unconstitutional by a court of competent jurisdiction or repealed by an act of the legislature. This “cultural” presupposition is dangerous and places too much unchecked power in the hands of Congress and the U.S. Supreme Court.
NULLIFICATION
Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. (Woods, Nullification, p. 3)
If a law is unconstitutional, it is up to the [S]tates, the parties to the federal compact, to declare it so and thus refuse to enforce it. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. (ibid, p. 3)
MEDICAL MARIJUANA
In the case of California (and several other States), the widespread use of medical marijuana proves that nullification (or interposition) works today. Hundreds of medical marijuana dispensaries are located throughout California. Dispensaries operate and sell an illegal substance in open rebellion to federal law. U.S. Citizens, all subject to federal law, are smokin’ dope every day…thumbing their noses at misperceived, unfounded federal supremacy. The use of medical marijuana is a great example of how the federal government, without constitutional mandate, feels impotent against the powers reserved to the States respectively…or to the People.
FIREARMS FREEDOM ACT
Another fine example of the States flexing their “sovereign muscle” is the adoption of the Firearms Freedom Act. A number of States have passed legislation eliminating (nullifying) federal registration and regulation of firearms manufactured, sold, and used in a single state boundary. These state “stamped” (labeled) firearms are not subject to the federal arguments in Article I, Section 8, under the principle of nullification.
NATIONAL DEFENSE AUTHORIZATION ACT (NDAA)
The Commonwealth of Virginia has put the brakes on the implementation of certain provisions of the 2012 National Defense Authorization Act (NDAA). In the spirit of Madison’s 1798 Resolution, the state’s delegates overwhelmingly passed HB1160, a “nullification” measure, to stop the federal government from unconstitutionally detaining certain individuals, for certain periods of time, and for certain reasons. Other States during the 2012 legislative season have considered similar legislation restricting, or “voiding” portions of the NDAA.
FLAWED ARGUMENTS
Typical statutory arguments against the utilization of nullification include the misplaced use of three major Article I, Section 8, clauses, outside of rational context. First, Clause 1, General Welfare; second, Clause 3, Commerce; and, third, Clause 18, Necessary and Proper.
Each of these clauses posses regulatory merit when properly interpreted within the framework of the Constitution. However, frequent abuses and misinterpretations of federal law, painted with an awfully broad brush, have restricted the States to act within their Constitutionally guaranteed powers. There are some reasonable arguments found in Thomas E. Woods, Jr’s book, NULLIFICATION, against the general welfare, commerce, and necessary & proper disputes. [Find them in Chapter Two.]
Additionally, the 10th Amendment to the U.S. Constitution declares, “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.” Throughout United States’ history, the 10th Amendment has continually been diluted by Congressional and Supreme Court usurpation, erroneously justified by the General Welfare, Commerce, and Necessary & Proper clauses.
STATES’ CHECK & BALANCE AGAINST THE FEDS
Continuous encroachment by the federal government outside its limited, enumerated powers is a daily event any more. One only need turn on cable news for a few minutes to see the constant abuses of unauthorized, federal control.
James Madison cautioned us… “I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachment by those in power, than by violent and sudden usurpation.” Moment-by-moment we are allowing Congress and the U.S. Supreme Court to boil the proverbial frog. We must stop the progress of unchecked, unauthorized federal control into States’ jurisdiction.
NULLIFICATION IS A VIABLE OPTION FOR THE STATES AGAINST FEDERAL TYRANNY
Founding Fathers, Jefferson and Madison, undoubtedly would be considered “fringe” or radical today by uneducated, anti-constitutionalists. (Remember, Jefferson was the “pen” of the Declaration of Independence, and, Madison was the primary “pen” of the U.S. Constitution…We forget that sometimes.) They maintained that…
* States governments were meant to be a check against federal tyranny
* The 10th Amendment provides States reinforcement to nullify unconstitutional laws
* An unconstitutional law is no law at all
* Nullification is the mechanism Americans may use to stop federal oppression
* These Founding Fathers believed nullification (or interposition) was a justifiable method to check Congress and the Supreme Court
Nullification must be explored as a viable option by Sovereign States to check the invasive encroachment of Washington DC.
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Further reading on Nullification…Thomas E. Woods, Jr.
