Nullification: a bad idea

**Posted by Phineas

There’s an interesting post over at Hot Air by Howard Portnoy about the efforts of Idaho and a few other states to pass resolutions of nullification against ObamaCare. In other words, their state legislatures would pass resolutions declaring the “The Patient Protection and Affordable Care Act” unconstitutional and thus null and void in their states:

The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers. It was used as early as 1799 by then-law professor Thomas Jefferson, who wrote in a response to federal laws passed amid an undeclared naval war against France that

  • “nullification, by those sovereignties, of all unauthorized acts … is the rightful remedy.”

As a legal theory, nullification is grounded in the assumption that states, and not the U.S. Supreme Court, are the ultimate arbiter in cases where Congress and the president have “run amok.”

In Idaho, use of the doctrine to invalidate the health care reform bill is being championed by both state Sen. Monty Pearce and Gov. C.L. “Butch” Otter speech, who recently told Idaho residents, “we are actively exploring all our options — including nullification.” Pearce plans to introduce a nullification bill in the state legislature early next week.

Constitutional theory fascinates me and, while I make no claim to be the intellectual equal of Thomas Jefferson (or James Madison, who also played a role in this), I couldn’t resist leaving a comment explaining why I think they were wrong and why nullification is just flat-out a bad idea:

  • “The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers.”

Not all of them. While Jefferson and Madison were the authors of the Kentucky and Virginia Resolves in 1798 in response to the Alien and Sedition Acts. Not a single other state backed them. Beyond that, many states condemned them. For example, Rhode Island, which was suspicious of the new government under the Constitution and one of the last to ratify it, declared the resolves to be a danger and that only the federal courts could decide the constitutionality of a law. Almost literally, Virginia and Kentucky’s positions on interposition and nullification represented “extremist” constitutional theory.

To amplify this a bit, bear in mind that there were 16 states in the Union at that time. Fourteen of them refused to endorse the K-V Resolves. Every state from Maryland, north, condemned them. The people of that time were members of the founding generation. They may not have attended the Constitutional Convention itself, but many, many of them closely followed and participated in the post-convention debates over ratification through their local newspapers and in the Federalist and Anti-Federalist Papers. And 88% of them, through their state legislatures, refused to endorse interposition and nullification. Those people were all “present at the creation;” shouldn’t their refusal to go along tell us something?

To continue:

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.) Or, for a modern example, look at the controversies over the raft of exemptions to ObamaCare being granted to companies. Imagine if whole states could chuck whatever section of the United States Code annoyed them.


We all agree that ObamaCare is bad medicine, but the proper way to deal with it it what’s being done right now: defeating its supporters in elections, dismantling it in Congress, and fighting it in federal court. And, if need be, calling an Article V amendments convention. But for Idaho and other states to revive the so-called “Principles of Ninety-eight” is a distraction and a dead-end, and downright harmful to the cause by making our side look unserious.

This, I feel, is key: we already have the remedies to the problem available to us and we are using them. In fact, we scored a great victory last November and we’ve had our first real victory in court. The House has passed a repeal bill, and a vote can be forced in the Senate. Obama can certainly veto a repeal measure, but 2012 isn’t that far away. And there’s a growing movement in favor of the passage of a Repeal Amendment, which would be the right way to handle anything resembling nullification, since the law would still apply to all states equally.

With all due respect to people intrigued by the idea of nullification, to engage in an act of political necromancy in order to revive a bad doctrine that should stay forever in a sealed tomb is the height of folly. It is political chest-thumping designed to make one feel good — all show and no substance.

ObamaCare, on the other hand, is wholly substantial and a very real threat to our economic health and individual liberties. The effort to undo it will require all our focus and effort, and we should resist any temptation to be sidetracked and dissipate our energies by tilting at constitutional windmills.

UPDATE: A related article at the Washington Post.

(Crossposted at Public Secrets)

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