Nullification and A Few Good Men

Jack Nicholson as Colonel Jessup #2

by Diane Rufino, June 22, 2013

I am an attorney. I studied the law. I studied Constitutional Law.  Judge Andrew Napolitano, Fox News Senior Analyst, was my Con Law professor and not only taught me constitutional law jurisprudence but taught me the passion in understanding how this great document defines our government and protects our individual rights.

Having said that, it should be noted that law schools teach Constitutional Law and not the Constitution. They don’t teach the Constitution from the Founders’ point of view, they don’t refer to the Federalist Papers, and they rarely even refer to decisions as “judicial activism.” The Constitution is taught not according to what it was intended to mean, but rather, according to the many landmark Supreme Court decisions which have interpreted it, defined it, and in almost all cases, broadened it. As one law student put it: ” I don’t know about the experience of other people who have attended law school, but I’d estimate that we spent perhaps only 0.5% of the time between two semesters of Constitutional Law learning about what the Constitution says and what the Founding Fathers intended. We spent no time on the Federalist Papers and the Constitutional Convention in Philadelphia was only mentioned simply as a historical fact and no more was discussed on the matter. The intent of the Founders can’t be found anywhere in my Con Law book or any other books we read. In fact, the only time I recall reading about the Founder’s intent was when Justice Scalia wrote the opinion, the concurring opinion, or the dissent in cases.”

Considering that the foundation of government in our country is based on the Constitution, wouldn’t it make more sense to teach lawyers how best to preserve its integrity rather than inspire them to help dismantle it?  Wouldn’t it be exceedingly prudent to teach students what the Constitution means, why it was drafted and intended as it was, and what essential principles and ideals underlie it?

Unfortunately, although I attended public school before much of the current progressive agenda kicked in, I still never learned much about our founding history, our founding documents, or our founding principles. I know it has only gotten “progressively worse,” if you’ll excuse the pun. After high school, I went to college, then graduate school, then took post-graduate classes, and then finally went to law school. All the while I had to work while taking classes in order to support myself or, as in the case of law school, I had just gotten married and was giving birth to my four children (pregnant my entire time in law school). The point is that life was happening. I was just going with the flow, doing the best I could, and trying to get by. I had no extra time to read the Anti-Federalist Papers, the Federalist Papers, the Notes on the Debates of the Constitutional Convention of 1787, and the debates surrounding the state ratifying conventions. So when I left law school, I knew what judges have said about the Bill of Rights and the Constitution, but I didn’t know what our very Founders said or intended with that document.

Luckily (and I do mean “luckily”), I lost my job in 2010 when the economy tanked. When it was clear that I wouldn’t be able to find a job any time soon, I finally committed myself to study the documents I should have studied BEFORE going to law school and reading what judges have said. I can tell you that a study of our Constitution from the perspective of our Founding Fathers and the states who were initially were skeptical of it was one of the most eye-opening experiences for me. All of a sudden, things began to make sense. The story of our founding is inspiring, but no more inspiring than those men who used their brilliant minds to find the proper philosophy to explain the role of government, who used their debate skills to come up with the best design of government, who used their keen sense of intuition to include the proper procedural checks (and balances) to keep the branches of government within their respective spheres, and who used the proper words to draft a constitution that would most effectively and securely protect individual inalienable rights and right to have a government by the consent of the governed.  Never have I felt more proud or felt so lucky to be born an American. I have done my best to educate others ever since. I hope every American will find the opportunity to have the same epiphany that I did.

Of all the principles and ideals that our country was founded on, my greatest passion is States’ Rights and Nullification. Perhaps it’s because those two concepts are the ones which have been most vilified and eroded over our history, and most certainly since the time of the Civil War. Or maybe it’s perhaps because Thomas Jefferson is my favorite Founding Father and aside from the fact that he drafted the Declaration of Independence and the Northwest Ordinance, and gave us our Right of Religion, he clearly expressed the viewpoint that in order to keep the federal government limited in scope, the States would have to be willing to defend their sovereignty.  I’ve been writing about Nullification for years. Nullification, in short, stands for the principle that any law passed without proper authority is not a valid law and is not enforceable on a people. In the US, the Constitution lists what authority the federal government and acknowledges that whatever powers were not delegated expressly to the government are reserved by the states. Article VI, Section 2 (the Supremacy Clause) states that the Constitution and all laws passed in pursuance to it are supreme law.  The reverse is therefore implied and true – that all laws NOT passed in pursuance to powers delegated by the Constitution are not supreme. The states therefore have no obligation to recognize or enforce them. This is the concept of Dual Sovereignty which is the unique and most brilliant feature of our government system. Since both the States and the federal government are sovereign over their respective powers, each will forever act as “jealous guardians” over those powers and prevent each other from encroaching into their domain. The Sons of Liberty, in effect, “nullified” such Intolerable Acts passed by the British Crown/Parliament as the Tea Act, the Stamp Act, and the Quartering Act when they engaged in simple acts of civil disobedience which prevented their enforcement. The Sons of Liberty harassed colonial Stamp agents so thoroughly that they resigned and the British could not collect the tax on paper goods. The reason they protested those Intolerable Acts was because they knew their rights as colonial British subjects and knew that they were being violated. The King was acting outside his authority to rule the colonies.  As most people are unaware, nullification (although not known by that term until Jefferson coined it in the Kentucky Resolves of 1799) is a firmly-entrenched constitutional principle. It was discussed at every stage of the drafting and ratification of the Constitution..  again, not by that term, of course. In the Constitutional Convention, delegates roundly rejected James Madison’s version of a strong centralized government. (He was initially a Nationalist). Madison called for a centralized government that was not limited in its powers. As if that wasn’t enough, he called for a “government veto” whereby the federal government could veto any action by any state that it did not approve of. The other delegates, mostly Federalists, quickly rejected that part of the Plan (the Virginia Plan). If there would be any “veto,” it would be a “state veto” which would be the power of any state to  declare when the government had overstepped its limited, constitutional bounds, and encroached into the states’ sovereign powers. A state veto is the same as Nullification. The Senate branch of the Legislature (pre-17th Amendment) was a direct “state veto” power within the structure of government. If the states felt that any piece of legislation was without proper authority or in abuse of authority, its Senators would simply vote it down. (That’s why we need to abolish the 17th Amendment and re-establish the Senate as a body devoted to States’ interests). The states’ ratifying conventions also spoke about the right and duty of states to exercise its “veto” power.  It was always assumed that under the “compact nature” of the Union (ie, the states signing the Constitution, agreeing to equally delegate some of their sovereign power to the federal government and to be commonly bound… thus, the “united” States), the states had the power to remind the government of what powers it had and did not have.

Nullification is based on the federal nature of our government, on the Supremacy Clause, and most strongly, on the compact nature of the Constitution. Americans are not taught their founding history and are certainly not taught the principles that underlie their government. They talk about “checks and balances” but only the simple ones – the president’s veto power and the federal courts. But the most important of checks and balances is indeed this notion of Dual Sovereignty and the WILLINGNESS OF STATES to STAND UP TO UNCONSTITUTIONAL CONDUCT BY THE FEDERAL GOVERNMENT !!

The problem, at least in my state of North Carolina, is that state officials are too afraid to assert state sovereignty. It’s offensive to hear the reasons they give. Here are a few of the explanations that GOP leaders in our state house and senate have personally given to me: “It is not our place to second-guess the actions of the federal government.”  “We will never use strong language against the federal government. It’s just not going to happen.”   ”Nullification is an out-dated, racist doctrine that was used to perpetuate slavery. It has no basis in the constitution and is illegitimate.”  “The Tenth Amendment no longer means what it used to. In fact, the Constitution in general no longer means what it used to.” When I asked why that is so, the senator answered: “It’s simple… We lost the Civil War.”  It’s morons like this who will sit back and watch as this government treats its citizens worse than King George treated the colonists. The only difference is that the colonists were intensively protective of their human rights and had a backbone.

This past Wednesday, I traveled to Washington DC to attend the “Audit the IRS” rally.  My husband tried to discourage me from going. He said it would end up being like all the other rallies – exercises in futility. He thought I shouldn’t waste my time and energy (as well as my monthly allowance for books !!) on the trip and just stay home with the kids. Maybe when it’s all said and done, the rally will end up just being a feel-good event. But I told him the real reason I enjoy making the trips to DC to protest. I enjoy seeing Americans all fired up and willing to stand up for the Constitution and for the ideals that made this country great. It does my heart good. I’m always humbled at all the people who travel great distances and at great inconvenience. The folks I stood next to on Wednesday were from Washington state. It just shows me that if things were to get more serious – if they were to get really bad – there still are a lot of patriots in this country who are willing to pick up where the Sons of Liberty left off. The spirit of the Revolution is not dead. It lives on. In fact, I’m positive that it is growing. And when I go to these rallies, I’m reminded of that. And I’m reassured.  Also, I’m always so happy to spend the day with folks who use words like Constitution, Founding Fathers, Declaration of Independence, Limited Government, Inalienable Rights, States’ Rights, and Consent of the Governed.

It reminds me of that movie A FEW GOOD MEN, with Jack Nicholson and Tom Cruise. Nicholson, as Colonel Jessup, takes the stand and delivers that famous dialogue:


We use words, as I just mentioned, like Constitution, Founding Fathers, Declaration of Independence, Limited Government, Inalienable Rights, States’ Rights, and Consent of the Governed… as the backbone of the liberty that we seek to defend. Our opposition, while enjoying the very freedom that is protected by our founding documents and founding ideals, uses those very same words as a punchline and even as a means to target us for government intimidation and to label us as potential domestic terrorists.

So many people buy into the government’s indoctrination that they must be good stewards of the state and obey laws without questioning them. They regurgitate views of state sovereignty and nullification that would make Abraham Lincoln and the post-Civil War government proud.  They think that states have no rights and certainly that they themselves, as individuals, have no power to make a difference in the policies and dealings of government. In reality, the answer to all of the problems associated with a large, centralized, unconstitutional government lies with the States and the People. Nullification has always been in the arsenal of constitutional remedies. It is the most viable remedy at this point. Furthermore, We the People, have power as well. The power over government has always resided in the People. We just have to be reminded of that, become educated, learn how to use that power, and most of all, be willing to step up and use it!!

For those who would like to learn more about Nullification and how it can be used to fit the federal government back within the boundaries of the Constitution, please consider attending the Nullify Now! event in Raleigh, NC on Saturday, October 19th at the Raleigh Convention Center, 500 S. Salisbury St.  The event, organized by the NC Tenth Amendment Center, is part of a nationwide tour to educate and engage people as to this doctrine, which Thomas Jefferson termed “the Rightful Remedy.”  Tickets are available at


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