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Nullification’s Five Deadly Secrets


Posted on: August 20, 2015

By Andrew Carver

An old theoretical “remedy” for overgrown or tyrannical federal government, namely the states’ “nullification” of unconstitutional laws or rulings, has gained some new advocates of late.

Of course, any proposed solution to that serious problem — and particularly one purportedly championed by Thomas Jefferson (see “The Founders’ Battle over the Nullification Heresy”), like this one — is worth examining by conservatives.

It is quite natural, therefore, to ask such basic questions about nullification as:

  • What does “nullification” mean, exactly?
  • Is it legal?
  • Is it even a viable remedy — especially in today’s political environment, dominated by a collectivist media?
  • What risks, costs, or downsides does it involve?
  • Are there preferable alternatives — some less risky, for example, or perhaps more legal?

Unfortunately, however, we find that the proponents of nullification avoid these responsible questions — or else, they answer them in a manner that evades the great mass of relevant evidence. Our purpose in this article will therefore be to answer these five questions, directly and clearly and with plenty of support.

  1. What does “Nullification” mean?

Nullification’s proponents have almost always used this term with a sweeping lack of precision.

We should point out first that, despite the form of the name, it does not mean simply a state’s pronouncement that they have found a federal law or ruling unconstitutional, and therefore null and void. Nobody has used the term, today or in the past, in that sense; it means more. 1

Thomas Woods, Jr., perhaps today’s foremost proponent of nullification, seems to have quite a shaky grasp of the term’s meaning. In a website that goes under his name, he writes, “State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.”

This definition is sadly inaccurate, both practically and historically. First, it assumes that the federal government is always dependent on state governments to enforce its laws. Second, it ignores the very long-established American judicial ruling that the federal government cannot require state governments to help enforce any federal laws. (This principle even has a name, “the Anti-Commandeering Doctrine.”) So, clearly that cannot be the sort of situation Woods intends “nullification” to address. 2

“Nullification” goes also beyond states’ “interposing” when the federal government exceeds its constitutional limits. This latter term was used by James Madison in the Virginia Resolution (passed Dec. 24, 1798), which was a response to the unconstitutional and quite tyrannical “Alien and Sedition Acts.” The Resolution stated that in such cases, states “have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.” (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Indeed, Madison had already decided that states do not hold a legal right to pronounce an unconstitutional federal law, authoritatively, to be “void, and of no force or effect.” Therefore, lest anyone draw the wrong conclusion, he had that last phrase struck from the Resolution before the Virginia legislature passed it. So, although both terms have often been used imprecisely, and sometimes been confused with each other, “nullification” goes beyond “interposition.”

What then is “nullification” – and where and when was the possibility first raised? Most likely the first discussion of the concept — though he did not use the term “nullification” — was in Federalist Papers 15 & 16, written by Alexander Hamilton.

In Paper 16, Hamilton distinguished carefully “between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” Hamilton continued:

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular [i.e., state] governments could not interrupt their progress without an open and violent exertion of an unconstitutional power…. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. (Interpolations and emphasis ours.)

The term “nullification” was coined in 1798, with the latter kind of law in view (specifically, the Alien and Sedition Acts: see “The Founders’ Battle 0ver the Nullification Heresy.”) Thus, the whole idea of nullification is to take the measures necessary to prevent the law from being enforced within the state; and that practically, such “measures” will entail the use of force — or at least, the credible threat of it. As Wikipedia points out,

In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” … George Washington was so appalled by [the resolutions] that he told Patrick Henry that if “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” [34]  [Emphasis ours.]

Willingness to bring about one or both, however, is definitely characteristic of “nullification.” Thus, a recent example of actual nullification would be the move by several states to make it illegal — indeed, a felony — to enforce federal gun laws within their borders. So, that kind of action is what we will discuss in the remaining sections.

  1. Is nullification legal?

Even on the face of it, nullification seems illegal. In the case of unconstitutional federal laws, nullification would involve not only allowing disobedience to federal law, on the part of either the state or its citizens (or both), but also the enforcement of a prohibition on any enforcing of that federal law. Such behavior is in direct violation of the Supremacy Clause (Article VI, paragraph 2) of the Constitution:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

What, then, about nullification of Constitution-twisting judicial rulings? Are we legally obligated to accept them, or can we discount and nullify them?

Explicitly, the Constitution gives federal courts jurisdiction in certain matters: it gives the Supreme Court original jurisdiction in a few matters, and appellate jurisdiction, “both as to law and fact,” over all other federal issues — including cases arising under the Constitution or the laws of the U.S. — “with such exceptions, and under such regulations as the Congress shall make.” (Article III, Sec. 2; emphasis added).

The inescapable conclusion is that authoritative decisions about the constitutionality of federal laws are the province of the federal courts, not the states. This is the conclusion of an overwhelming weight of authorities and experts – including, as we have already seen, James Madison. Both the Constitutional Convention, the state ratifying conventions, and over half a dozen Federalist Papers show clearly that the founders of our Constitution attributed this authority only to the federal courts. Also, this is how the federal courts themselves have repeatedly, consistently ruled.

Significantly, no other state went along with Kentucky or Virginia, in response to the 1798 resolutions. On the contrary, four states did nothing, seven states responded by formally rejecting the Kentucky and Virginia resolutions, and three states passed resolutions expressing disapproval of them. At least six states affirmed that the question of constitutionality of a federal law lies with the federal courts, not the states. (See, also, “The Founders’ Battle over the Nullification Heresy.”)

Later, prior to the Civil War, a few states – both Southern and Northern ones — did claim the right of nullification. Its most notable invocation, supported by the Vice President, John C. Calhoun from South Carolina, was that state’s declaration that the federal Tariffs of 1828 and 1832 were unconstitutional and thus null and void within the state’s boundaries. This led to the so-called Nullification Crisis (1832-33). Although President Andrew Jackson was prepared to quash this uprising by force, that turned out to be unnecessary.

Also, some states tried to nullify fugitive-slave laws within their borders. The Supreme Court overturned these efforts, in such cases as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859), the latter of which was the Court’s most thorough treatment of the nullification issue to date.

Much later, in 1954, the Supreme Court’s school-desegregation decision in Brown v. Board of Education of Topeka led to a resuscitation of states’ claims to a right of nullification or interposition. Arkansas, Virginia, Louisiana, and Florida passed interposition and nullification laws. The Supreme Court rejected Arkansas’ law, on the usual grounds, in Cooper v. Aaron (1958).

From the Civil War until the 1950’s, however, virtually no one claimed such a right for the states. Starting from the drafting of the Constitution and until the 1950’s, the overwhelming consensus was that according to the Constitution, states do not have a right of nullification, for reasons we have stated. In short, it is illegal.

  1. Is nullification a viable remedy?

Given this understanding of what nullification is, and of its illegality, we are in a much better position to consider how viable an approach it is.

So what are the realistic chances for success, for a state wishing to resist the federal government forcefully? That depends of course on how determined the federal government is to enforce its law or ruling.

There are very few examples, historically, of a case where a state has put the nullification theory to a practical test. Perhaps the only example is Pennsylvania’s reaction to the first Supreme Court case that dealt with nullification, United States v. Peters (1809). The Pennsylvania legislature had originally passed a law claiming that a federal court’s decision in an earlier case had been unconstitutional and was therefore “null and void.”

In the Peters case, the Supreme Court overturned that Pennsylvania statute, denying that the state had the authority to nullify a federal court’s judgment. What happened next deserves careful consideration (the footnotes referenced are in the Wikipedia article we quote):

In response, the Governor of Pennsylvania called out the state militia to prevent enforcement of the Supreme Court’s judgment. However, the U.S. Marshal summoned a posse, carried out the Supreme Court’s order, and arrested the leaders of the state militia. The Pennsylvania legislature passed a resolution declaring the action of the Supreme Court unconstitutional, invoking states’ rights, and appealing to the other states for support.[42] Eleven states responded by disapproving Pennsylvania’s attempted nullification. No state supported Pennsylvania.[43] The Governor of Pennsylvania made a plea to President James Madison to intervene, but Madison affirmed the authority of the Supreme Court. The Pennsylvania legislature backed down and withdrew the militia.[44] Thus, Pennsylvania’s attempt to nullify the federal court judgment failed.[45]

Isn’t that the result any state can expect, if it tries something similar? Certainly it is, unless that state has much better support for its cause, from the American public in general, than Pennsylvania enjoyed in 1809.

But there is another crucial factor that nullification proponents conveniently ignore that virtually guarantees the outcome. The proponents refuse to acknowledge the determined “Big Government” forces, agendas, and deceptive tactics that have misled the public over decades into accepting the step-by-step erection of our current massive unconstitutional federal bureaucracy. The grip of those forces on our media and Washington would in no way be impacted by attempts at State nullification. In fact, attempts at nullification likely aid that agenda (see point 4).

So today, that “much better support” is too much to expect. The public is far too ignorant of and about the Constitution, and too gulled by the Establishment-controlled media, to form any correctly targeted, informed resistance — or even to be motivated to do so. (Nor would it help a state’s chances of success, in the case of nullification, that the federal government would be legally correct.)

Against a determined federal government, especially one supported by our Establishment-controlled media, today no state could reasonably hope to succeed in an attempt at nullification.

  1. What risks, costs, or downsides does it involve?

We should qualify our previous statement, however: no state could hope to do so, without first preparing the way by partaking in a wisely-targeted, well-organized, nationwide, successful effort to educate and inform the public.

In today’s environment, that educating and informing would certainly need to be about both our Constitutional system and the well-organized, well-funded, internationalist conspiracy seeking to destroy that system.

When considering the costs of any rational solution today, we must point out that taking part — and succeeding — in such a nationwide educational effort is a necessary price. Unfortunately, today’s proponents of nullification do not at all follow their hero Thomas Jefferson, in his almost constant emphasis on the prerequisite of such education:

The most effectual means of preventing [the perversion of power into tyranny are] to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes. — Thomas Jefferson: Diffusion of Knowledge Bill, 1779. The Writings of Thomas Jefferson, Federal Edition 2:221, Papers 2:526

If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be. — Thomas Jefferson to Charles Yancey, 1816. The Writings of Thomas Jefferson, Memorial Edition (ME) 14:384

If once [the people] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions. — Thomas Jefferson to Edward Carrington, 1787. ME 6:58

I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. — Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

Most importantly, if such education were accomplished, there would be no need for nullification — completely legal recourses would be practical (see 5, below), thus avoiding the very serious downsides to nullification.

Even presuming an informed electorate, there is obviously a substantial amount of other cost or risk in any threat, or actual use, of force against a hostile government. Jefferson eventually recognized (see “The Founders’ Battle over the Nullification Heresy”), that an actual show of force might even turn potential comrades into our enemies.

But in addition to the obvious risks of military humiliation or defeat, there are some less obvious, yet impactful, downsides we should consider:

  • War is a changer of the societies that take part in it, even those to which it does not do great military or economic damage.
  • War is a ready excuse for the government to expand its power. In today’s environment, we cannot even rule out the possibility that the eventuality of civil war could be used by internationalist Insiders as a pretext to call for international military intervention. This could happen, on our own soil, under the aegis of N.A.T.O. or of the U.N. The loss of liberty that could readily ensue is a frightful prospect.
  • Another risk that attaches to any illegal activity, and which many people may not have considered, is loss of respect for the law, and for the enforcers of the law. These are real and quite corrosive effects that even a small amount of common or accepted law-breaking creates. We quote here from Freedom First Society’s founding book, Organize for Victory!

Otherwise responsible citizens weaken the rule of law, and so its protective shield, when they put themselves above the law by deciding which laws they will obey and which they will ignore. The rule of law is such an important asset in any civilization that even a significant corruption of the law does not justify either civil disobedience or treating the law with contempt.

Respecting the law does not mean that we should regard all laws as just and accept them as such. Certainly many official acts are not legal or even constitutional.   However, when there are problems within the legal system, rather than promoting cynicism, the responsible approach is to observe the law and work to make it more worthy of respect….

Legal systems are major social accomplishments. They are not put together during periods of chaos and confusion. We can preserve the umbrella of safety the law provides only by helping to see that the law is respected.

As a strategy, civil disobedience is not only wrong, it is also dangerous and counterproductive. Its widespread practice leads to anarchy, while providing an easy path to tyranny. In fact, lawlessness paves the way for a police state. (pp. 198,199)

  1. Are there preferable alternatives to nullification — say, less risky, and/or more legal?

Even Thomas Jefferson, the patron saint of the nullification proponents, came to recognize a serious risk of any insurrection (see “The Founders’ Battle over the Nullification Heresy”) and pointed us to a better alternative:

In this state [Virginia], we fear that [violations of the Constitution] may produce insurrection. Nothing could be so fatal. Anything like force [used against the violators] would check the progress of the public opinion and rally them round the government. This is not the kind of opposition the American people will permit. But keep away all show of force and they will bear down the evil propensities of the government by the constitutional means of election and petition. (Emphasis ours.) — Thomas Jefferson to Edmund Pendleton, Feb. 14, 1799. ME 10:105

It is truly odd how the proponents of supposedly easy, “silver-bullet” fixes like nullification tend to discount or overlook the mighty power of the ballot box. For example, those who call for a risky, Article V constitutional convention to create “term limits” for Congressmen, completely overlook the best term limits that anyone could devise: the requirement of Congresspersons to face periodic and fairly frequent elections.

Nor do our “silver bullet” proponents show much sagacity when they intone repeatedly their alarms of an “out of control” federal government. The fact that the same Congress which passes all these unconstitutional bills is for the most part repeatedly re-elected shows that the American people approve, to the extent they are aware, of the job their elected representatives are doing.

Even more overlooked, perhaps, are the great powers that Congress holds over the other two branches of the federal government. In regard to the Executive branch, for example, Congress holds the “power of the purse” which James Madison so celebrated. There is virtually no power that either the President, or the massive bureaucracy over which he or she presides, can exercise which Congress does not first approve and fund.

And most ignored of all, probably, is the power that Congress holds over the Judicial branch of the federal government. We could not begin to improve on the clear, full, and accurate description that Don Fotheringham has provided of this important power. We will only add that it is the constitutional, legal, safe, but fully effective means that our Founding Fathers built into our federal system.

What is missing then, from the legal, constitutional, relatively risk-free approach? Nothing — except for the necessary understanding and fortitude on the people’s part. As Thomas Jefferson warned, whichever approach we choose to uphold our constitutional liberty, we will be unsuccessful in our efforts unless we provide the needed educational undergirding.

To provide that educational undergirding is the basic purpose of the Freedom First Society. We invite all freedom-loving Americans to partake in the wisely targeted, nationwide sort of educational effort that is an absolutely necessary condition for the upholding and preserving of our liberty.

Notes

  1. Nor is nullification a mere legalizing, at the state level, of something the federal government makes illegal. That would not involve even the state’s making a pronouncement, about the constitutionality of the federal law. It would simply be its not duplicating the federal government’s outlawing (of whatever). Thus, for example, several states have legalized one or more forms of marijuana use, in contrast with federal law. It happens that in this matter the federal government has decided not to allocate its resources to the costly undertaking of restricting the use of marijuana. This makes it de facto legal. But this is not a case of “nullification” of a federal law; it is simply a case of the federal government biting off more than it can chew in outlawing something.
  1. Admittedly, there are cases where the federal government depends explicitly on state-government cooperation in order to carry out a program. This is the case with several parts of Obamacare. But that is the exception, not the rule: As just mentioned, it is a well established principle that the federal government cannot demand such cooperation. The states are quite free not to give their help. So, recent calls to “nullify Obamacare” do not involve “nullification” in its full ramifications: the Tenth Amendment Center describes them more accurately as “nullification in effect.”

 

 

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