Nullification: a bad idea

Posted by: Phineas on January 22, 2011 at 7:26 pm

**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.

Finally:

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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25 Responses to “Nullification: a bad idea”

Comments

  1. Nullification is precisely the right idea. The federal government was created by the states, not the other way around.

    http://libertyatstake.blogspot.com/
    “Because the Only Good Progressive is a Failed Progressive”

  2. Simon says:

    I’m not necessarily opposed to adding a provision allowing a given number of states to override Congress, which is one of the ideas that’s done the rounds, but I see no provision whatsoever for nullification in the existing Constitution.

  3. TexasDoc says:

    I don’t know how many states have called for a constitutional convention (con-con?), but some of them have nullified their votes to that end.

    Reading the different websites about a con-con, if such a convention were to be held it appears Congress would be powerless to stop any action that might be ratified by the states as a result of such convention.

    I can easily see a situation where enough states get fed up by unfunded mandates that a con-con pushes constitutional changes down the throat of congress and they would be powerless to amend it. Already, a majority of states are not happy that Obama care is making them change their own state laws on health care. This will be an interesting test between the collective power of the states and the will of the US congress. If a state is permitted to declare bankruptcy and cancel its public indebtedness, we enter uncharted territory and chaos.

    Just my two cents.

  4. Steve Palmer says:

    I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK. In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one. Please follow the link for a more detailed explanation.

  5. Steve Palmer says:

    Sorry to follow myself, but while rereading your article, I became intrigued by another point. Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s? If so, I’d really like you to elaborate on that line of reasoning!

    I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof. I also have an article on that subject here – LINK

    It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones. I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts. I am very curious to hear your line of reasoning to the contrary.

  6. Wayne says:

    I’d suggest reading this:

    LINK
    and this
    LINK

    to better understand nullification.

    The problem with your complaint of “patch work” laws is the fact that the Federal government doesn’t have the right to pass most these laws that would end up patchwork. Their main roles was supposed to mediate the few things that fell between states. The states are supposed to tell the Fed what’s what. Just as people are supposed to tel the states what laws we agree with.

    Nullification can happen at the local level too. If a jury chooses not to enforce a law, by returning a not guilty verdict for a guilty party, it sets a precedent and starts the process of nullifying even local/state laws that may not be consistent with what that body citizens want.

  7. Carlos says:

    Be careful what you wish for – you might get it.

    Once a constitutional convention is called, there are no rules whatsoever limiting what can be introduced or voted on. With the track record of jackass skullduggery I tremble to think what they would introduce and how they would demand the votes be counted, a la Chicago machine. I could even imagine a few cemetery votes there, too!

    Not saying I would oppose it. Just want everyone clear that the enemies of American democracy could have major plans for such a thing.

  8. Neo says:

    This exercise might be useful, if only to show the validity, or lack thereof, of nullification.

  9. Brontefan says:

    When the people we send to Washington [and trust?] pass laws, create bureaucracies, & tons of regulations without any regard for the US Constitution–you get a response of anger and outrage. The previous Congress didn’t follow any direction from the folks; instead they created an abomination of 2300 pages and in arm-twisting deals and back room bargaining–shoved it down our throats. Some Congressmen who knew what they were doing was wrong–even tried to exonerate themselves by lying about what they heard from the Tea Party on the steps of the Capital that day. We have here, something most Americans did not want. We do not have health care reform; we have health care take over by the federal government. And before this is all over–we will rue the day it ever happened. And the ones who will be most shocked will be the ones who actually believe they are going to get FREE HEALTH CARE. This entire ObamaCare disaster is all about redistribution of wealth [Marxism]. Many Baby Boomers, who paid into this system of Medicare for years only to discover at the last minute, the game has been changed–are angry and outraged. Most of us are desperate for a remedy and that is why people look at nullification. If the US Supreme Court did their job and declared this law unconstitutional, which I believe it is–the problem would be for the elitists who want socialized medicine to figure a way to pass a constitutional amendment which is the only way it can be done legally. Not by using the Commerce clause.

  10. Steve Skubinna says:

    Nullification is not only a bad idea, it will not work. We had that argument before, and it was settled in 1865.

    The issue would not even arise if we had a limited federal government, carefully constrained in its power over the states. You know, like the Founders set it up.

  11. Carlos says:

    Steve, ya mean like in the Constitution the Democrats scoffed at when it was read?

    Yeah, I’m real sure they’re just sweating to get back to the founding principles.

  12. Steve Skubinna says:

    Carlos, never, ever use “the C-word!” Don’t you know it’s a racist violent teabagger code word?

  13. Phineas says:

    Simon: The Repeal Amendment is appealing to me more and more, as long as the bar is set high. Say, 3/4ths of the states, the same level for passing an amendment.

    Steve P:

    Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?

    No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind. Probably not the best one to use.

  14. Carlos says:

    Coulda said “…sweating bullets…”, but figured it’d be picked up by the diversity/peace movements and plastered all over. Just the same, the word “Constitution” is offensive to those elitists and arrogancia who believe they have the evolutionary right to run our lives because “Constitution” implies self-control, don’tcha know?

  15. Sister, thanks for posting this. Nullification is not only a recipe for chaos, it’ll lead to a de facto breakup of the union. This is irresponsible in the extreme.

    I’m not really a big fan of the Repeal Act either. It seems a knee-jerk response to one administration’s overreach more than anything else. Remember also, amendments are basically forever, so who knows how this thing will be used in 20 or 50 years time. The law of unforeseen consequences worries me. Think Sixteenth Amendment, where the sponsors swore up and down that the tax on income would never exceed 2 percent and to say otherwise was fearmongering.

  16. Xrlq says:

    Simon is right. Not only is there no provision for nullification, the Supremacy Clause leaves no room for it. If a federal statute exceeds Congress’s powers, let the courts strike it down in every state. If it doesn’t, it’s good law in every state. No in-between unless the law itself says so.

  17. Carlos says:

    While we’re at it, I personally wouldn’t mind an amendment stating that any law passed by Congress has to apply to the ruling classes first. You know, the ones we elect to supposedly represent us? And all their lackeys, from congressional aides and “czars” on down to the (many times too often) jerks who tell us when and how high to jump locally?

    Seems to me that if all those laws and rules were so good to begin with (like Obamacare) they’d be bustin’ their britches to get covered by them.

  18. is nullification that much different than waviers. in this case the states are granting themselves the wavier. this is what happens when you pass laws inopposition to the will of the majority of the people.

  19. DF says:

    Regardless of feelings on whether nullification by the states is the correct action to take or whether congress should be handling the issue, nullification is key. The more states that hold votes like this the more attention that is drawn to the matter. In reality if Obamacare is not repealed it will make its way to the Supreme Court. There it will hopefully be struck down.

    DF

  20. Steve Palmer says:

    So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

    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.

    In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK. Anyway, I thought conservatives supported federalism?

    In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway. We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

    No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it. Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

    As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete. You are correct insofar as the states were always opportunistic in their support of nullification.

    For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

    I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

  21. Phineas says:

    Hi Steve,

    I haven’t read Woods’ book. I should, since it’s an interesting topic. In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

    Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

    And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

    That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights. Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states. Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

  22. Steve Palmer says:

    Hi Phineas,

    This appears to have been Woods’ reply to that post from Professor Barnett – LINK

    And this seems to be the relevant paragraph,

    Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution. Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void. Nullification merely disallowed the enforcement of a nonexistent constitutionality. What could be controversial about that?

    Here is Madison’s report, which both of them mention – LINK

    I’m surprised Woods’ didn’t mention this, but I just took a quick look. Barnett was apparently careless in selecting his quote. Madison’s report is organized in sections. Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.