The State of Alabama has the Power of Nullification
By Robert Greenslade
The Ten Commandment controversy raging in Alabama goes far beyond the First Amendment. This case goes to the very heart of political compacts and the power of a party to a contract to nullify the unlawful acts of its agent. The State of Alabama, in its capacity as one of the United States and a party to the constitutional compact between the several States, has the power of nullification whenever any branch of the federal government blatantly exceeds its delegation of authority. This is one of those cases.
Contrary to the rhetoric emanating from the media and political pundits, this case has nothing to do with a lawful order by a federal court. The order was rooted in the judicial fiction that the First Amendment mandates a separation of “church and state”. These words do not appear in the Amendment or anywhere in the Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Even if the First Amendment applies to the States through the Fourteenth Amendment, as asserted in this case, the Ten Commandments, displayed in manner that does not promote the establishment of a state religion, is insufficient to trigger the constitutional prohibitions of the First Amendment.
The Alabama case raises a constitutional question. When a department of the federal government blatantly exceeds its delegation of authority and attempts to unconstitutionally restrict the sovereign powers of a State, how does a State, as a party to the Constitution, protect itself from the unlawful act of its agent? Thomas Jefferson answered this question in a document known as the Kentucky Resolutions. Written in 1798, these resolutions were in response to the unconstitutional attempt by Congress to expand the criminal jurisdiction of the federal government through a set of laws entitled the “Alien and Sedition Laws.” The document stated in part:
The several states composing the United States of America are not united on the principle of unlimited submission to their General Government; but that, by a 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 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 to other cases of compact among powers 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.
As stated by Jefferson, the federal judiciary was not granted the power to interpret the Constitution or decide, in the last resort, questions involving the nature of the compact between the several States. Only the States, as the exclusive parties to the compact among themselves, possess that power.
The State of Virginia also adopted a set of resolutions in response to the “Alien and Sedition Laws.” These resolutions paralleled Jefferson’s overview of the Constitution and re-affirmed the principle that the States have the power to decide, in the last resort, the extent of the powers delegated by the States to their federal government.
James Madison, who has been recognized as the father of the Constitution, prepared a detailed analysis of these resolutions and affirmed the ultimate power of the States to arrest any blatant usurpation of power by the federal government. His report stated in part:
The resolution having taken this view of the Federal compact, proceeds to infer, ‘that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are 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.’
It appears…to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts- that, where resort can be had to no tribunal superior to the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States, was framed by the sanction of the States, given each in its sovereign capacity... The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows that there can be to tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.
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[T]he resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights and liberties appertaining to the States, as parties to the Constitution.
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But it is objected, that the Judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
On this objection it might be observed: first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the Judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the Judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extent to violations by one delegated authority, as well as by another; by the Judiciary, as well as by the Executive, or the Legislative.
However true, therefore, it may be that the Judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the Judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of Judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.
In 1838, the United States Senate adopted a series of resolutions concerning the nature of the federal government. The third of these, which were adopted by a vote of 31 to 11, acknowledged that the federal government is the agent of the States:
Resolved, That this Government was instituted and adopted by the several States of this Union as a common agent, in order to carry into effect the powers which they had delegated by the Constitution for their mutual security and prosperity…[emphasis added]
As stated by Jefferson and Madison, the Constitution is a compact between the several States. John Marshall, the infamous Chief Justice of the United States Supreme Court, stated that the judicial power of the federal government “cannot extend to political compacts.” Since the Constitution is a political compact between the several States, the federal courts have no constitutional authority to decide, in the last resort, the extent of the powers delegated to the federal government by States.
Anytime an agent exceeds its authority, the principals, or any one of them, has the power to nullify any act of the agent that goes beyond the original grant of power. In the instant case, the States’ agent has blatantly exceeded its constitutional grant of power. The State of Alabama, as one of the United States and a party to the constitutional compact, has the authority to ignore the District Court order by invoking its power of nullification. Since that would turn this into a political question involving the grant of power from the States to their agent, the federal judiciary would constitutionally lose jurisdiction over this controversy. If the States do not exert their authority and re-gain control over their federal government, the federal judiciary, given time, will reduce the States to mere geographical locations and make them totally subservient to the federal government.
Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.
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