Nullification or Partition: The Choice is Ours

By Paul R. Hollrah, Guest Blogger

Listening to the news reports out of Washington, especially in the wake of Barack Obama’s weak-kneed  budget proposal, it is hard to escape the conclusion that the early decades of the 21st century in the U.S. will be characterized by one of two governing principles: nullification or partition.

Thomas E. Woods Jr., the author of “Nullification – How to Resist Federal Tyranny in the 21st Century,” the nullification concept has its origins with Thomas Jefferson in his draft of the Kentucky Resolutions of 1789.  Woods explains:

“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… [I]f a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the (U.S. Constitution), 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.”

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A number of states are already engaged in the early stages of nullification.  For example, the lawsuits by 28 states, asserting that the mandates contained in the Obama health care law are unconstitutional, are a last ditch effort by the states to work within the system to put the federal government in its place.  Failing that, the states’ primary option will be outright nullification.

Gov. Jan Brewer (R-Ariz.) has filed suit against the federal government seeking to force the Obama Administration to police the US-Mexican border and to enforce our national immigration statutes.  Should the courts refuse to demand compliance by the Obama Administration, the next step in the nullification process would be for Governor Brewer to announce that she will enforce Arizona’s own laws against illegal immigration… the federal government be damned.

Gov. Butch Otter (R-Idaho) and the Idaho legislature are contemplating nullification in response to actions by the U.S. Fish and Wildlife Service and the EPA.  Following reintroduction of the Canadian gray wolf by FWS in 1995, increasing numbers of the predator have spread to Colorado, Idaho, Montana, Oregon, Utah, Washington, and Wyoming, killing large numbers of cattle and sheep and decimating wild game herds.  When the EPA criminalized hunting of the animal by placing it on the endangered species list, farmers, ranchers, homeowners, and sportsmen found themselves defenseless, unable to legally protect themselves, their families, or their livestock.  Governor Otter has asked the federal courts to de-list the gray wolf so that they can be hunted and killed. Failing that, the issue will be ripe for nullification.

In Oklahoma, voters went to the polls in November and overwhelmingly approved — 70%-30% — State Question 755, a constitutional amendment prohibiting the use of foreign law, including Shari’a Law, in state courts.  Muslim activists filed suit and a federal judge, a Clinton appointee, issued an injunction against implementation of the amendment.  However, if the courts should ultimately rule against the people of Oklahoma, Gov. Mary Fallin would be within her rights to invoke nullification, informing the court that, inasmuch as State Question 755 is not in conflict with the U.S. Constitution, the court order is unconstitutional and that the state will rely, instead, on the will of the people.

There is no clearer principle in our federal system than that the federal government is created as an instrument of the 50 sovereign states, in which the states have delegated certain limited powers to the federal government… powers which the states cannot or ought not perform for themselves.  As Alexander Hamilton wrote in Federalist Paper No. 78:

“… there is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void.  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 forbid.”

As Woods suggests, “The controversy arises when we consider how and by whom any unconstitutional law should be declared void… It was Hamilton’s view that the courts would put things right.  But what if they didn’t?” Indeed.  What if they didn’t?  It is then that states have a duty and an obligation to nullify the laws they find to be unconstitutional.

But what happens when an outlaw federal establishment, led by Chicago street thugs in Armani suits, refuses to recognize the limitation of its powers, refuses to recognize the right of the states to nullify federal law, refuses to recognize orders of the federal courts, and not only supports, but encourages, mass insurrection by union thugs against state and local governments?  Where then do the states go to seek justice?  In such an event they have little choice but to seek “partition”…  “a politically imposed alteration of geographic boundaries, creating two or more separate political entities under different sovereigns and authorities.” (The best known partitions of the 20th century are those of Ireland, India, Palestine, Cyprus, Germany, Korea and Vietnam.)

In the context of 21st century America, partition would likely occur following a constitutional crisis in which a state, or group of states, declared federal mandates to be unconstitutional and the federal government refused to recognize their right to do so, or when the federal courts attempted to impose an unconstitutional mandate on the states.  While it is unlikely that the federal government would attempt to enforce its will by force of arms, it is possible to develop a scenario in which two or more states would find continued membership in the federal compact to  conflict with the best interests of their people.

For example, if the federal government adamantly refuses to defend U.S. borders against foreign invasion; if the federal government stubbornly impedes access to the energy supplies needed to maintain economic vitality and the American way of life… even to the point of ignoring court orders, as the Obama Administration has done in refusing a court order to abandon its moratorium against oil and gas exploration in the Gulf of Mexico; if the federal government attempts to deny basic property rights of the business community, as in the Obama Administration’s efforts to impose union-friendly representation rules via executive order, all without the consent of the governed… then that government calls into question its right to exist.

In such event, the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Oklahoma, New Mexico, South Dakota, Tennessee, Texas, Utah, and Wyoming may see partition as their only long-term alternative.  These 22 states would make quite a nice country, completely self-sufficient in food and energy and fully prepared to defend their respective borders.

With the exception of a few brief periods of sanity, liberals and Democrats have maintained control of our public institutions for the past 78 years, from FDR through Obama, while the hard-working, freedom-loving people of the country have had to sit by and watch their country torn apart by politically-inspired class warfare.  But now we’ve arrived at the tipping point; there is no longer any “give” in our economy, our foreign affairs, or our social systems.

In an essay titled, “I’m 63 and I’m Tired,” actor Robert A. Hall expresses the feelings of most Americans.  He says, “I’m tired of being told how bad America is by left-wing millionaires like Michael Moore, George Soros, and Hollywood entertainers who live in luxury because of the opportunities America offers.  In 30 years, if they get their way, the United States will have the economy of Zimbabwe, the freedom of the press of China, the crime and violence of Mexico, the tolerance for Christian people of Iran, and the freedom of speech of Venezuela.”

Thirty years?  Look around you, Mr. Hall.  Madison, Wisconsin now looks more like Cairo or Mogadishu than a city of the American Midwest. In Wisconsin, Democrat members of the state Senate have fled the state in order to prevent Governor Scott Walker and legislative leaders from limiting the run-away power of public employee unions and requiring union members to pay a modest portion of their retirement and health care costs.  Police officers have been dispatched to bring the Democrats back to the capitol and the governor has put the National Guard on alert in the event of violent insurrection by unionized public employees.

When one political party is willing to resort to that level of lawlessness in order to deny the will of the people, in open defiance of the rule of law, and when a president of the United States takes sides with lawbreakers, in defiance of the authority of the elected officials of a state government, then we must concede that we are treading very close to the outer limits of civil society.

When a major political party is willing to commit suicide before the eyes of the world, for no better reason than to show their solidarity with special interests to whom they’ve sold their soul; when leftist political agitators are so dedicated to the rightness of their cause that they would gamble the peace and tranquility of the nation in order to win undeserved economic advantage, then the people are left with limited alternatives.  We have a choice between nullification and partition, and many patriotic Americans may actually prefer partition to living under a regime designed by those who now occupy the White House and the Wisconsin Capitol rotunda.  The choice is ours.

Hollrah is a senior fellow at the Lincoln Heritage Institute and a contributing editor for Family Security Matters and a number of online publications.  He resides in northeast Oklahoma.

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