Nullification: Answering the Objections

In January 2011 my book Nullification became notorious when it was linked to a bill that declared Barack Obama’s health care law unconstitutional and therefore void and of no effect in the state of Idaho. (Other states have been introducing similar bills, but Idaho grabbed the media’s attention.) Legislators had read it, the news media reported, and while Governor Butch Otter turned down a state senator’s offer of a copy, that was only because he already had one. He had read it, too.

Naturally, the smear patrol went into overdrive. Why, this is crazy talk from a bunch of “neo-Confederates” who hate America! Anyone who has observed American political life for the past 20 years could have predicted the hysterical replies down to the last syllable.

“Nullification” dates back to 1798, when James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions, respectively. There we read that the states, which created the federal government in the first place, by the very logic of what they had done must possess some kind of defense mechanism should their creation break free of the restraints they had imposed on it. Jefferson himself introduced the word “nullification” into the American political lexicon, by which he meant the indispensable power of a state to refuse to allow an unconstitutional federal law to be enforced within its borders.

Today, political decentralization is gathering steam in all parts of the country, for all sorts of reasons. I fail to see the usefulness of the term “neo-Confederate” – whatever this Orwellian neologism is supposed to mean – in describing a movement that includes California’s proposal to decriminalize marijuana, two dozen states’ refusal to abide by the REAL ID Act, and a growing laundry list of resistance movements to federal government intrusion. As states north and south, east and west, blue and red, large and small discuss the prospects for political decentralization, the Enforcers of Approved Opinion have leaped into action. Not to explain where we’re wrong, of course – we deviants are entitled at most to a few throwaway arguments that wouldn’t satisfy a third grader – but to smear and denounce anyone who strays from Allowable Opinion, which lies along that glorious continuum from Joe Biden to Mitt Romney.

Anyone who actually reads the book will discover, among many other things, that the Principles of ’98 – as these decentralist ideas came to be known – were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

When Nullification was released, here’s what I predicted would happen: “If the book's arguments are addressed at all, they will be treated at a strictly second-grade level. (Official Left and Right agree on more than they care to admit, an unswerving commitment to nationalism being one of those things.) The rest of the so-called reply will run like this: Nullification is a secret plot to restore the southern Confederacy, and Woods himself is a sinister person with wicked intentions, before which all his fancy moral and constitutional arguments are nothing but a devious smokescreen.” (I went on to make my Interview With a Zombie video to suggest how a typical media interview on the subject might run, and made my first video blog in response to the hysteria over Idaho.)

Since that is indeed what has happened, I’m following up with this point-by-point reply to the standard arguments I knew would be trotted out against the idea. (My replies to these claims are discussed in much greater detail in the book.)

“Nullification violates the Constitution’s Supremacy Clause.”

This may be the most foolish, ill-informed argument against nullification of all. It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism. It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

“Nullification is unconstitutional; it nowhere appears in the Constitution.”

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose, and is alien to the structure of, that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument. Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of 13 states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power. No other arrangement makes sense. No one asks his agent whether the agent has or should have such-and-such power. In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created. James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

“The Supreme Court declared itself infallible in 1958.”

The obscure obiter dicta of Cooper v. Aaron (1958) is sometimes raised against nullification. Here the Supreme Court expressly declared its statements to have exactly the same status as the text of the Constitution itself. But no matter what absurd claims the Court makes for itself, Madison’s point above holds – the very structure of the system, and the very nature of the federal Union, logically require that the principals to the compact possess a power to examine the constitutionality of federal laws. Given that the whole argument involves who must decide such questions in the last resort, citing the Supreme Court against it begs the whole question – indeed, it should make us wonder if those who answer this way even understand the question.

“Nullification was the legal doctrine by which the Southern states defended slavery.”

This statement is as wrong as wrong can be. Nullification was never used on behalf of slavery. Why would it have been? What anti-slavery laws were there that the South would have needed to nullify?

To the contrary, nullification was used against slavery, as when northern states did everything in their power to obstruct the enforcement of the fugitive-slave laws, with the Supreme Court of Wisconsin going so far as to declare the Fugitive Slave Act of 1850 unconstitutional and void. In Ableman v. Booth (1859), the U.S. Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?

“Andrew Jackson denounced nullification.”

True, though Jackson was presumably not infallible. (Had nullification really been all about slavery, then Jackson, a slaveholder himself, should have supported it.) His proclamation concerning nullification was in fact written by his secretary of state, Edward Livingston, and that proclamation was, in turn, dismantled mercilessly – mercilessly – by Littleton Waller Tazewell.

“You must be a ‘neo-Confederate.’”

I confess I have never understood what this Orwellian agitprop term is supposed to mean, but it is surely out of place here. Jefferson Davis, president of the Confederacy, actually denounced nullification in his farewell address to the U.S. Senate. South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision.

Don’t expect critics of nullification to know any of this, and you won’t be disappointed.

One of the points of my book Nullification, in fact, is to demonstrate that the Principles of ’98 were not some obscure southern doctrine, but at one time or another were embraced by all sections of the country. In 1820, the Ohio legislature even passed a resolution proclaiming that the Principles of ’98 had been accepted by a majority of the American people. I do not believe there were any slaves in Ohio in 1820, or that Ohio was ever part of the Confederacy.

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