What is Nullification?

In Corruption and Civil Disobedience, we discuss the distinction between civil disobedience and militant action, and the circumstances under which each kind of resistance is justified.

A third kind of resistance to tyranny, nullification, is mentioned elsewhere on eXileMM.com (Populate Juries and Politics is Local), but is never explained. What is nullification?

Nullification (f. Latin "to make as nothing") is defined as "the action of making null or of no effect" (OED).

Civil disobedience and militant action both involve the citizen's resistance to government. Nullification involves a government official's resistance to government.

Within a political context, nullification is a process whereby federal policy is rendered "of no effect" by State or local inaction. The use of the term "policy", instead of "law", is advised. When federal government officials issue edicts in violation of the Constitution, the result may properly be called many things, but "law" is not one of them.

Historically, precedent exists for a variety of nullifications.

Jury nullification takes place in a criminal case when the jury returns a verdict of "not guilty" on grounds outside of the judge's instructions on the law. State and local nullification occurs when State officials refuse to enforce federal policy. Executive nullification is when a President or Governor declines to enforce a judicial decision.

Is nullification against the law? The federal government would try to persuade you that it is, but history and logic prove that it is not.

First, let us consider jury nullification. A famous example of jury nullification is the trial of John Peter Zenger, among the first of American journalists. In 1735, a jury acquitted him of the crime of seditious libel, on the grounds that what he wrote was true - grounds deemed irrelevant by the trial judge's instructions on the law.

Zenger walked away and the Judge could do nothing about it. In the Anglo-American system of justice, no judge can overturn a verdict of "not guilty" returned by a jury in a criminal case. In acquitting, the jury has the last word - to the dismay of judges and prosecutors everywhere [1].

The legality of jury nullification is still recognized by federal court jury instructions, which by their terms require a jury to acquit, but never require but only permit a jury to convict.

State nullification occurs when a State officials, such as a Governor or a Legislature, refuse to recognize or enforce a federal law.

The most famous example is South Carolina's refusal to collect the federal "Tariff of Abominations" between 1827 and 1833. Nullification worked. After the federal government agreed to reduce the tariff, the South Carolina legislature agreed to suspend its 1832 nullification ordinance [2]

A third example of nullification is when the Executive branch of government declines to enforce an edict pronounced by the Judiciary.

Historically, this has often been the President declining to enforce Supreme Court edicts. Abraham Lincoln declined to enforce the Dred Scott decision as government policy, stating, "if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court [...] the people will have ceased to be their own rulers." [3]

Andrew Jackson was less eloquent, but more succinct, when he said of the Chief Justice of the Supreme Court: "John Marshall has made his decision, now let him enforce it." [4]

The essence of nullification is one institution of government declining to enforce what another institution of government calls "the law". The power to nullify is a negative act; it simply negates a policy or decision by another government official. To nullify is to "just say no."

The power to nullify is recognized by the oath of office taken by civilian officials in the United States, which, from the President on down, is an oath to uphold the Constitution.

The oath of office taken by civilian officials is to be distinguished from the oath taken by military enlistees, which provides "That I will obey the orders of the President of the United States and the orders of the officers appointed over men [...] so help me God" [5]

While the soldier takes an oath to "obey orders", the civilian official takes no such oath. Explicit in this distinction is the power of the civilian official to lawfully decline to perform any action he believes would violate the Constitution or laws of the United States. Every civilian official owes his primary allegiance and duty to the Constitution; he is not legally bound to follow orders given by Supreme Court Justices, Senators or other despots.

To the point of tedium, the German people have been criticized for "following orders" of their duly elected Nazi government. Today, many of these same critics would deny that civilian officials have the lawful power to nullify "orders" from Washington, D.C.

But let us not distract ourselves by compiling a list or our enemies' corruptions and hypocrisies. Truly, this would lead to lamentations without end.

Let us act. And in defense of the Constitution, let our State and local officials decline to act.

Luke, Exilarch