Model Nullification Resolutions for State Legislatures
The Proposed Tennessee Resolutions of 2012
[The Proposed Tennessee Resolutions of 2012]
Proposed by Publius Huldah
1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only. That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.
That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.
That to these Principles, each State agreed as a State, and as the Parties to the Constitution.
That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers. That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.
2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system: Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. That the 10th Amendment to the Constitution also declares that “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.”
That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.
4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever. That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force, as in violation of Art. I, Sec. 1, of the federal Constitution.
5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.
6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State. That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.
7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:
a) The “taxing” and “general welfare” clauses: Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).
The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases. This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 7th para).
b) The “interstate commerce” clause: “Commerce” is the buying and selling of goods – only that and nothing more. Webster’s American Dictionary (1828) says “commerce” is:
an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.
Federalist No. 22 (4th para), Federalist No. 42 (9th &10th paras), Federalist No. 44 (at 2.), and Federalist No. 56 (5th & 6th paras), explain the two purposes of the “interstate commerce” clause: (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.
Article I, Sec. 8, cl.1; Art. I, Sec. 9, cls. 5 & 6; and Art. I, Sec.10, cls. 2 & 3, of the federal Constitution give express effect to these two purposes of the “interstate commerce” clause.
c) The “necessary and proper” clause: This clause merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2nd para); and thus the clause is “perfectly harmless”, a “tautology or redundancy” (No. 33, 3rd para). Madison writes to the same effect in (Federalist No. 44, at 1.).
The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution. No additional substantive powers are granted by this clause.
That contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people (Federalist No. 45, 9th para)
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….(Federalist No. 39, 3rd para from end)
…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects... (Federalist No. 14, 8th para)
…It merits particular attention … that the laws of the Confederacy [those made by Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…[caps are Hamilton’s] (Federalist No. 27, last para).
That The Federalist Papers - and not the U.S. supreme Court - is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) - usurp powers, they must be impeached and removed from office (Federalist No. 81, 8th para).
8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.
Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.
That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.
But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.
Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State. That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.
The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it. Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5th para). As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them. For Part two click below.
9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.
Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.
That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents; and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges.”
That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred. Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.
To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.
That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.
10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President. Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 2nd para, and No. 77, last para). That the supreme Court long ago took the side of those who seek to exercise unlimited control over the States and THE PEOPLE; and that Congress has failed in their duty to impeach and remove federal judges who usurp powers (Federalist No. 81, 8th para).
That pursuant to Art. VI, cl. 3 of our federal Constitution, all State legislators, State Officers and State Judges take a solemn Oath to support our federal Constitution. Therefore, they are bound to protect THE PEOPLE of their States from the usurpations of the federal government whose clear object is the establishment of an absolute Tyranny over the States and the People.
That our Framers anticipated the dangers we now face and provided wise counsel for such a time as this. Federalist No. 28 (last 5 paras) states that when “the representatives of the people betray their constituents”, the people have no recourse but to exert “that original right of self-defense” [The Declaration of Independence, 2nd para], against “the usurpations of the national rulers” (5th para from end).
That in a Federation of States united under a federal government for only limited purposes,
…the people… are…the masters of their own fate. Power being almost always the rival of power, the general [federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress… (4th para from end)
Thus, THE STATE LEGISLATURES are the ultimate bulwark of The People and The Ultimate Human Protectors of our Constitutional Republic:
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty. (3rd para from end)
The last paragraph of Federalist No. 28 recognizes that when the federal government seeks
… a despotism over the great body of the people … [the people] are in a situation, through the medium of their State governments, to take measures for their own defense…
11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go. Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?
That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence.
That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.
THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.
1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.
2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powers and disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.
3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; that the federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.
Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.
Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, … (2nd para)
In that one paragraph, we learn the five foundational principles of our Constitutional Republic:
• Our Rights are unalienable and come from God;
• The purpose of civil government is to protect our God-given Rights;
• Civil government gets its powers from THE PEOPLE;
• Civil government is legitimate only when it stays within the powers WE delegated to it; and
• When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.
The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look at the opening words:
WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.
The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate.
When the federal government loses its legitimacy – as it now has - it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.
4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.
But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 2nd para & No. 77, last para).
But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES to do something, or stop doing something, then of course THE STATES - on an individual basis - have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States. The proper battle cry in such events is, “Not in my state!”
Do you see?