Is Nullification A Bad Idea?

Posted: February 4th, 2011 by Militant Libertarian

by Steve Palmer, 10AC

In January, hotair.com reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.
I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ
to have a place to refer people to find the rebuttal for all of the
standard arguments.  This is a work in progress, so if you would like to
contribute content for questions and/or answers, please use the contact
form to e-mail us your suggestions.  Phineas also made the more unusual
argument that when Jefferson and Madison penned the Kentucky and
Virginia Resolutions, fourteen other states declined to support them in
their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

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

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.)

Those points led me to submit the following comments…

Steve Palmer says:
January 22, 2011 at 11:14 pm

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.

AND

Steve Palmer says:
January 23, 2011 at 12:00 am

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.

To my question about whether the northern states should have
refrained from nullifying the federal fugitve slave acts, Phineas
responded,

January 23, 2011 at 6:36 pm

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.

I followed up with this comment,

Steve Palmer says:
January 24, 2011 at 9:49 pm

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”?

(quote from original post)

“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.

Which drew this response from Phineas,

January 24, 2011 at 10:22 pm

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.

My response,

Steve Palmer says:
January 24, 2011 at 10:57 pm

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett – http://www.lewrockwell.com/woods/woods147.html

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 – http://www.constitution.org/rf/vr_1799.htm

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.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would
consider nullification a waste of time. Barnett has devoted an
extraordinary amount of effort to trying to use the Fourteenth
Amendment’s Privileges or Immunities Clause to protect libertarian
rights — even though the Supreme Court established in 1873 that
the Clause does no such thing, and the Court hasn’t wavered in that
view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been
used to do what Barnett wants it to do, and there is no reason to think
it ever will be, unless you think some future U.S. president is going
to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done?
As Woods shows in the book, it’s been used numerous times throughout
U.S. history to defend individual rights against the federal
government.  Recently, for example, it has been used in California to
protect medical marijuana users there — after Barnett was unable to do
so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

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