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Mandeville, LA – “A neighbor of Madison’s, a fellow who later would be governor of Virginia and U.S. Secretary of War under John Quincy Adams, James Barbour, said: My understanding is, if you call a law unconstitutional, you’re already saying it’s null, void, and of no force or effect.  So saying both that it’s unconstitutional and that it’s null, void, and of no force or effect is just redundancy.  Therefore, I don’t think there’s anything wrong with removing ‘null, void, and of no force or effect [from the Virginia Resolutions of 1798.’ ] We’re still saying the same thing.”   Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  There is a simmering controversy over one of the authors that is James Madison, what he said, what he didn’t say, and then what he retracted.  I’ll let you pick it up from there.

Kevin Gutzman:  Well, people who are listening to this probably know that what’s happened is, there’s an organization out in California called the Tenth Amendment Center, started by a really great guy named Mike Boldin, that has been advocating nullification of unconstitutional federal laws.

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The nullification effort by the Tenth Amendment Center has had a lot of success.  They’ve been able to persuade people in several different states to essentially ignore unconstitutional federal laws, most notably about marijuana regulation, but about several other things, too.  This has drawn the fire of a notorious talk show host whom you and I have encountered before, last heard calling Tom Woods and me “Dr. Nitwit and Dr. Knucklehead” on C-SPAN.  That’s Mark Levin.  Levin says, among other things, that nullification is unconstitutional, that Madison never supported the idea, that these people at the Tenth Amendment Center are just crazy and they need to be opposed.  What do we make of this?

First of all, what the Tenth Amendment Center is advocating, although they’re calling it nullification, isn’t really nullification.  Nullification in the 18th and 19th centuries meant using the force of state governments to prevent implementation of federal policy, that is standing up to the U.S. government militarily to keep them from doing things within the boundaries of Virginia, Kentucky, South Carolina or whatever state you were in, later Wisconsin when it came to the laws about returning fugitive slaves.  This is not what the Tenth Amendment Center is calling on states to do.  Nobody thinks that Kansas is going to take on the

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but would perhaps be dangerous.  Yet in 1798, he became the chief sponsor in the House of Representatives of a Bill of Rights.  In 1787, in Federalist No. 10, Madison argued against political parties.  In 1792, Madison became the founder of America’s first federal political party.  In 1791, Madison invented the argument that it was unconstitutional for Congress to pass a law chartering a bank.  In 1816, Madison signed into law a bill chartering a bank.  I could go on.

The point is, the fact that you can find a letter written by Madison, in the case of the 1830 letter about nullification, it’s 13 years after his political retirement, in which he took the position that agrees with whatever position you want to be taking in 2013 does not resolve the question: What does the Constitution mean in this regard?  I can find Madison on either side of most questions of constitutional interpretation.  In fact, when I was in graduate school at the University of Virginia in history, I knew a guy who was working on a PhD in political science at UVA.  He had written a master’s thesis called “How Many Madisons Will We Find?”  Again, anything that has read anything about him, who’s read his papers, who’s read my books would know that he was very inconsistent.  This isn’t Thomas Jefferson that we’re talking about here.

End Mike Church Show Transcript

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  • Nullification in the 18th and 19th centuries did NOT mean using the force of state governments to prevent implementation of federal policy; and James Madison was extremely specific about this in The Virginia Report. Rather, he held that with each state was “a people in their highest sovereign capacity;” i.e. that only the PEOPLE– not the government— of a particular state could nullify a federal law, acting in convention.
    State governments, meanwhile, had only that power which the People of the state delegated to it, and so it would require a state convention to change this. This was how they adopted the Constitution, after all, delegating powers to the new federal government differently than under the Articles of Confederation.

    • That’s funny because Taylor of Caroline introduced the resolution at the VA General Assembly’s regular session. “Sovereign people” act THROUGH their legislature thus giving validity to that body’s actions. You are also trying to deny the main point of this piece which is that the Constitution is a compact, binding on sovereign parties under the agreed upon terms, in this case, enumerated powers. “Federal policy” is null and void and of no force unless it carries out an enumerated power. Read the letter the Virginian’s produced and sent to the other states on the matter of interposing against alien & sedition acts.

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