Magazine | February 21, 2011, Issue

Nullification Temptation

Let’s stop Obamacare without blowing up the constitutional order

The House may have passed a bill that would repeal Obamacare, but a Democratic majority in the Senate and a Democratic president who has hung his legacy on the survival of the new law remain formidable obstacles. That is why some conservatives have begun looking for a “nuclear option” to end Obamacare, in the form of state nullification. Libertarian Thomas E. Woods wowed CPAC attendees last February with a passionate call for nullification, declaring that “we need the institutional ability to say no to the federal government.” Let the states nullify “a law they believe violates the Constitution” and “the federal government may well have to back down.” A year later, ten state legislatures are debating how to nullify Obamacare, and four others have considered the idea off and on. The most recent is Idaho, where Gov. Clement Otter said in his January 10 state-of-the-state address that he is in favor of “actively exploring all our options — including nullification.”

Unfortunately, like other nuclear options, nullification is a dangerous weapon to brandish. Its danger lies in how easily it could destroy not just Obamacare, but the entire Constitution.

Nullification has been tested before — and found wanting. At the time of the Constitution’s ratification, several of the states tried to add reversion declarations that provided some measure of restraint on the operation of unpopular federal laws. Thomas Jefferson and James Madison both wrote legislative resolutions in 1798 threatening state nullification of the Alien and Sedition Acts. In 1832, a South Carolina state convention adopted a nullification ordinance to prevent the collection of “the tariff of abominations,” and in the 1850s the Wisconsin Supreme Court tried to nullify the Fugitive Slave Law by ordering the release of Sherman Booth, an abolitionist who had helped a runaway slave escape to Canada, from federal custody.

At no point, however, did nullification prevail. The state ratifying conventions in 1788 could issue as many reversion declarations as they pleased, but as Robert Bork once wrote, it is the act of ratifying the Constitution, not of issuing nullification declarations, that enjoys legal standing. Neither Kentucky nor Virginia actually nullified the Alien and Sedition Acts, and Madison himself hastened to add in 1800 that the nullification he had had in mind was more an “expression[] of opinion” about the constitutionality of federal acts than a declaration of their invalidity. South Carolina’s nullification of the tariff earned a resounding rebuke from Pres. Andrew Jackson, himself no lover of centralized government. “I consider . . . the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution,” and “inconsistent with every principle on which it was founded,” Jackson thundered. When federal marshals arrested Sherman Booth and refused to release him to Wisconsin state custody, he had to wait for a presidential pardon before he could walk free in 1860.

The Constitution is nicely specific about the relationship between federal and state power: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So it is worth asking just what it is that modern nullificationists don’t understand about supreme. The wonder only deepens when we remember that the states are expressly forbidden by the Constitution to exercise the greater prerogatives of sovereignty: “No State shall enter into any Treaty, Alliance, or Confederation . . . coin Money; emit Bills of Credit . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility . . . lay any Imposts or Duties on Imports or Exports . . . keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War.” If the states lack these powers under the Constitution, how can they retain the much greater power to nullify national laws?

#page#Nullification collides with more than just the letter of the Constitution. It also assaults its spirit. The guarantee that each state will give “Full Faith and Credit . . . to the public Acts, Records, and judicial Proceedings of every other State” is undermined whenever a state nullifies a law and other states refuse to recognize the nullification. And it collides with the rights and obligations of U.S. citizens, since the state nullification of an unwanted federal law ends up restraining a U.S. citizen living in that state from following that law. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” says the Constitution — but not in a state where the local legislature has nullified certain of them that it deems objectionable. What the nullifying state is doing is, in effect, canceling the U.S. citizenship of the people living within its borders by asserting supreme jurisdiction over them.

One reply to this argument is that it merely represents the “nationalist theory” of the Constitution (according to which the document creates a single, unified nation, and the states are subordinate to federal authority), as opposed to the “compact theory” (according to which the Constitution creates a league or alliance of independent sovereignties). But it’s not easy to say what a compact theory means in the real world, much less whether it allows nullification. Theories according to which the Constitution is a “compact” also fly in the face of what the Framers thought they were doing. James Madison, both during and after the Constitutional Convention, believed that the national government ought to have the authority “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union . . . and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” And George Washington was so intent on having the federal government be the government of all the people, and not just of states, that any other result would cause him “deep regret at having any agency in this business.” Nor it is really persuasive to claim that the Tenth Amendment’s reservation to the states of powers “not delegated to the United States by the Constitution” was intended to include the power to nullify. It would be strange that the Framers spelled out an amending process but not a process for nullification.

Nullification is the spirit of anarchy. It sees real enough dangers in the non-enforcement of law, or even perverse lawmaking, but retaliates by setting aside the entire mechanism of lawmaking. It is impatient with the slow, prudent working of the checks and balances in the federal system, and announces (in the words of Donald Livingston of the Abbeville Institute) that “Congress cannot restrain itself, and elections don’t work.” At its worst, nullification places the immediate will of a minority over the process of majority rule. It appeals to special interests and European-style proportional-representation schemes, in which factions and splinter groups are the tail that wags the nullifying dog. Have nullification if you like, but understand that it is as destructive of the Constitution and the rule of law as the legislation it takes aim at, and rejected by our history as well.

Perhaps the reappearance of nullification arguments is simply a measure of how resolutely many Americans are balking at the Obama agenda. Much of nullification’s appeal seems to lie in its promise to strike down the federal dragon with a single mighty thunderbolt. But anger can induce tunnel vision. Hayek wrote that top-lofty state planners always plan for the result they would most like to see, not the one that is most likely to happen. The same is true of those who support nullification. Their anger may be justified, but it does not justify the use of a weapon that would blow the whole house up. “Should the States reject this excellent Constitution,” Washington warned in 1787, as he added his signature to it, “the probability is that an opportunity will never be offered to cancel another in peace; the next will be drawn in blood.”

– Mr. Guelzo is Henry R. Luce III Professor of the Civil War era, director of Civil War–era studies, and associate director of the Civil War Institute at Gettysburg College.

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