My article on nullification, entitled "States' Fights," appears in the July 2010 issue of The American Conservative. It gives an overview of specific efforts — historical and contemporary. It points out that the Tenth Amendment has been a bulwark not only for slavery and segregation, but also for abolition and freedom. Opponents of nullification use John C. Calhoun as a bogeyman when Thomas Jefferson was an earlier and more typical exemplar of the movement. It was Jefferson who penned and promoted the Kentucky Resolution of 1798. Below I place the current state sovereignty movement into its political context.
Nullification is the repudiation or ignoring of a federal law by a state government. It is also known as interposition. This deliberate failure to enforce federal statutes or judicial rulings within states is normally based on constitutional grounds.
In recent decades, the first organized effort to nullify federal laws came from the Left and the libertarian Right in the form of medical marijuana. What began in California, in 1996, as a challenge to the Controlled Substances Act of 1970, has spread with more states attempting to legalize cannabis, for both medicinal and recreational use. We have also seen states' rights evoked to protect Second Amendment firearms freedom and to block the Real ID Act of 2005.
During the past half year, state efforts to block or opt out of the federal health care reform are different from other endeavors partly because of the project's lopsidedly partisan nature. It's a Republican cause. It is linked not only to principled, nonpartisan constitutionalism, but also to large doses of hatred and hysteria in regard to Barack Obama.
Obama is a former professor of constitutional law but he is not known as a friend of states' rights. In fact, as president, he quickly developed a reputation as a radical socialist hell-bent on destroying the foundations of our country, including federal balance, personal liberty, and free enterprise.
Of the candidates for president during the 2008 primary season, Congressman Ron Paul was the only one who publicly and repeatedly championed the Tenth Amendment. The maverick Texas Republican inadvertently gave birth to the Tea Party movement not only with his message but with his tactics. Grassroots Paul supporters followed up their $4 million Guy Fawkes Day online fundraising event with an event commemorating the Boston Tea Party on December 16, 2007. During a 24-hour period, nearly 60,000 Americans gave an average of $102 to the Paul campaign. The "money bomb" raised an incredible $6 million in a single day.
This revival of the liberty-loving spirit of Sam Adams and his band of revolutionary populists would eventually take institutional form not only in the Campaign for Liberty and Young Americans for Liberty — spinoffs of the official Paul campaign — but also in the more varied and decentralized Tea Party movement. Tea Partiers hold a range of views on GOP loyalty and foreign policy, but they tend to be populist, libertarian, and/or moralistic. It is the mix of conservatism embodied by Ron Paul but the movement is much broader than Paul. It encompasses Sarah Palin and Glenn Beck, not to mention hangers on as unlikely as Newt Gingrich and Michael Steele.
It is connected to fear about Obama's meteoric rise to power (Who is he really?) but it is also larger and less personal than that. It taps into frustration and anger about the 2008 bailouts under Bush; the 2009 bailouts, stimulus package, and health care reform under Obama; and the irresponsible, secretive, and dishonest Wall Street and Federal Reserve machinations. This is the context of the current drive for nullification.
The Republican Party establishment wants to encourage the state sovereignty and Tea Party movements, but only to the extent that they are useful for partisan gain. Fanning the flames of anger and fear regarding Obama is useful. Having conservatives form their own party is not. So co-optation is the order of the day.
In April 2009, Governor Rick Perry of Texas endorsed a Tenth Amendment state sovereignty resolution. A week later, speaking to the press at a Tea Party rally, he hinted that the state might leave the union "if Washington continues to thumb their nose at the American people." But this was just cynical posturing on the part of a politician wanting to shore up support among right-wingers in the face of primary opposition. When his comment became a controversy, he quickly backpedaled and disavowed any thought of secession.
In April, Newt Gingrich threw some red meat to Southern Republican activists by calling Barack Obama "the most radical president in American history" who oversees a "secular, socialist machine." Gingrich, a onetime history professor, knows that's nonsense, but it's his stock in trade. As a Rockefeller Republican and serial adulterer trying to appeal to conservative Christians, his hypocrisy is as inflated as his rhetoric.
Gingrich and his fellow Beltway Republicans were cheering the Bush administration on as it created a giant new bureaucracy in the form of a Stalinesque-sounding Department of Homeland Security, expanded the Medicare program, worked with Ted Kennedy to usurp state and local control of education through No Child Left Behind, practiced socialism for the rich with the Wall Street bailout, and pushed the free market aside with the auto industry bailout. Cheney, Rove, and the rest of the secularists surrounding Bush largely built the socialist machine Obama is now operating.
Obama is no radical. Ryan Lizza of The New Yorker concisely states the truth: "Perhaps the greatest misconception about Barack Obama is that he is some sort of anti-establishment revolutionary. Rather, every stage of his political career has been marked by an eagerness to accommodate himself to existing institutions rather than tear them down or replace them." You can argue that the existing institutions — notably, the power elite — are oppressive, unconstitutional, or anti-American, but that's a different argument.
While the nullification, state sovereignty movement is praiseworthy, it's a shame that its distinct message and heritage have been overshadowed by the bigger anti-Obama, Tea Party movement. Critics of federal power ought to be more principled and less partisan. To be effective in changing the role of government in our lives, it's not enough to have a fear of Barack Hussein Obama and knee-jerk hostility toward Democrats.
The irrational distrust of Obama before he even took office can be compared in some ways to the elite southern response to Lincoln after his election. Over and over again, the pragmatic Lincoln assured the power structure in the South that he had no interest in tampering with slavery where it then existed. His sole concern was preservation of the union. Lincoln was no Charles Sumner, a true radical and populist, just as Obama is no Russell Feingold. In denouncing the "lords of the loom and lords of the lash," Sumner recognized that both parties were complicit in slavery.
If Tea Partiers and state sovereigntists are informed and honest, they will recognize that there is no substantive difference between Romneycare and Obamacare, between Republican phonies and Democratic phonies. It's a bipartisan mess of federal overreaching, deficit spending, ungodly values, and imperial arrogance.
Obama is not going to confiscate your guns because, frankly, he has other concerns: he has to keep his Wall Street patrons happy. They don't care if you own a semiautomatic, shot gun, or water pistol, as long as the Federal Reserve and Treasury Department continue to cater to their every desire. Same with the military contractors vis-à-vis the Pentagon and State Department.