by Diane Rufino, Oct. 30, 2017
Imagine Hillary Clinton had won the 2016 presidential election and enough democrats won so that she enjoys a friendly Congress. And imagine she made good on a campaign promise and had a comprehensive federal gun control law enacted to essentially deprive ordinary Americans of their right to own and bear firearms. The law would clearly be unconstitutional. The Bill of Rights prevents the Congress from enacting laws that burden the second amendment guarantee.
Would the American people be doomed to be oppressed in their rights by the law? In theory, an unconstitutional law should never have any force of law in a free society. But how do we prevent its enforcement?
That is where Nullification and Interposition come in.
Thomas Jefferson articulated the doctrine of Nullification and called it the “Rightful Remedy” to oppose unconstitutional action by the federal government. And James Madison explained that Nullification, together with Interposition, is the duty of every state in such an event. These remedies stem from the federal nature of our government system – the division of power between the states and the federal government and the understanding and duty of each sovereign to jealously and judiciously guard its sphere of power. Sovereign v. Sovereign; Titan v. Titan. Nullification is the act of a state acknowledging that an act of the federal government is an abuse of the power delegated to it under the Constitution. To be clear, an act of government that exceeds delegated authority is automatically null and void. And therefore has no force of law and technically cannot be enforced. But who is going to tell the government that it can’t enforce its laws? The federal courts – the third, unbounded branch of the very federal government that forever seeks to enlarge its powers? That is where the states come in. After all, when the government assumes powers it was not delegated, it naturally usurps them from the states and from the people themselves. Interposition is the inherent right of a state to take whatever action necessary to prevent the enforcement of an unconstitutional law or policy (or court decision) on its citizens. Such may take the form of state laws preventing the enforcement, disbarment of judges who uphold the law, or the arrest of any official who attempts to enforce the law.
Although Jefferson and Madison are credited with these doctrines of nullification and interposition, the doctrines have been known for generations before their time; they are implied in the very nature of “law” and “enforcement.” That is why, despite the objections of states’ rights opponents, the doctrines of nullification and interposition supersede the Constitution and are indeed rightful remedies.
Without these rights, according to our founding fathers, the states (and the people) “would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” In other words, it is the most powerful remedy to prevent government tyranny on people who have recognized inherent and civil rights.