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.

Allen C. Guelzo — Allen C. Guelzo is the Henry R. Luce Professor of the Civil War Era at Gettysburg College. 

In This Issue

Articles

Politics & Policy

Arab Agony

Upheaval is shaking the Arab world. Countries there are alike in being under one-man rule, and this authoritarianism is being tested to destruction. The outcome might be political reform and ...
Politics & Policy

Palin vs. Romney

Two potential candidates for the Republican presidential nomination have been described as “frontrunners”: former governors Mitt Romney and Sarah Palin. According to pollster Scott Rasmussen, they’re the candidates with the ...
Politics & Policy

Lost in Space

Almost half a century after the first man went into orbit, and at a time when the federal government is so deeply in debt that no expenditure can be allowed ...

Features

Books, Arts & Manners

Politics & Policy

Australian Model

Think of him as the Tea Partier from Down Under. John Howard, the second-longest-serving prime minister in Australian history and leader of the Liberal (in American terms, read Conservative) party ...
The Straggler

Morpheme Addiction

Until very recently the only thing I knew how to say in Turkish was the proverb Nerede çokluk, orada bokluk, which means (I shall bowdlerize slightly) “Where there are people, ...

Sections

Politics & Policy

Letters

Marital Goods Jason Lee Steorts misses the boat when he argues that monogamous same-sex unions and heterosexual infertile unions possess the same kind of value, and that therefore we should have ...
Politics & Policy

The Week

‐ It looks like Egypt has discovered term limits. ‐ The House vote to repeal Obamacare is being treated by the media as a political stunt, since the bill is unlikely ...
The Long View

Tweets from @youthcaptain

Tweets from @youthcaptain, the next leader of the Democratic People’s Republic of Korea: Was supposed to have some Dad-and-me time today. He’s “too busy” watching stuff in Egypt and Jordan etc. ...
Politics & Policy

Poetry

OMEGA All day long my watch has been stopping On me, every few hours, a good Omega Automatic chronometer, certified, Gold face and bezel, circa 1970, Self-winding. My father left it to me When he died, ...
Athwart

Exit, Stage Left

The chairman of the NEA recently said we might have too much theater in this country. Rocco Landesman was quoted by the New York Times thus: “You can either increase ...

Most Popular

PC Culture

Hate-Crime Hoaxes Reflect America’s Sickness

On January 29, tabloid news site TMZ broke the shocking story that Jussie Smollett, a gay black entertainer and progressive activist, had been viciously attacked in Chicago. Two racist white men had fractured his rib, poured bleach on him, and tied a noose around his neck. As they were leaving, they shouted ... Read More
Politics & Policy

The Strange Paradoxes of Our Age

Modern prophets often say one thing and do another. Worse, they often advocate in the abstract as a way of justifying their doing the opposite in the concrete. The result is that contemporary culture abounds with the inexplicable — mostly because modern progressivism makes all sorts of race, class, and ... Read More
PC Culture

Fake Newspeople

This week, the story of the Jussie Smollett hoax gripped the national media. The story, for those who missed it, went something like this: The Empire actor, who is both black and gay, stated that on a freezing January night in Chicago, in the middle of the polar vortex, he went to a local Subway store to buy a ... Read More
World

Ilhan Omar’s Big Lie

In a viral exchange at a congressional hearing last week, the new congresswoman from Minnesota, Ilhan Omar, who is quickly establishing herself as the most reprehensible member of the House Democratic freshman class despite stiff competition, launched into Elliott Abrams. She accused the former Reagan official ... Read More
U.S.

White Progressives Are Polarizing America

To understand how far left (and how quickly) the Democratic party has moved, let’s cycle back a very short 20 years. If 1998 Bill Clinton ran in the Democratic primary today, he’d be instantaneously labeled a far-right bigot. His support for the Religious Freedom Restoration Act, the Defense of Marriage Act, ... Read More
Elections

One Last Grift for Bernie Sanders

Bernie Sanders, the antique Brooklyn socialist who represents Vermont in the Senate, is not quite ready to retire to his lakeside dacha and so once again is running for the presidential nomination of a party to which he does not belong with an agenda about which he cannot be quite entirely ... Read More
PC Culture

Merciless Sympathy

Jussie Smollett’s phony hate-crime story could have been taken apart in 24 hours, except for one thing: Nobody wanted to be the first to call bullsh**. Who will bell the cat? Not the police, and I don’t blame them. Smollett is a vocal critic of President Donald Trump who checks two protected-category ... Read More