THE LIBERTARIAN ENTERPRISE
Number 411, April 1, 2007
"It's the business of mass media to distract Americans
from everything that's actually important."
Nullification Re-visited, Part One
Special to The Libertarian Enterprise
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".
Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there's a word we haven't seen in awhile, and with good reason. You see, the word "nullify"like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution"belongs to a special class of political four-letter words, so called not for the number of letters they actually contain, of course, but simply for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.
For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I'm sorry, Hal, but this doesn't work. Montana didn't pass the REAL ID Act, so it can't very well repeal it; and nowhere in Ms. Rice's bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."
This language seems pretty clear to me. Ms. Rice's bill says that Montana doesn't like the REAL ID Act, doesn't think it's constitutionally sound, and won't have anything to do with it. End of story.
But a state can't do that. . . can it?
Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edictsthis is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of samesurprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that's the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are 'discredited' political doctrines largely for the same reason that your claim to your wallet can be 'discredited' by a mugger in an alley. Ask Rush Limbaugh if you don't believe me. "Might makes right" is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it "patriotism," while simultaneously demonizing his opposition as "anarchists" and/or "anti-American."
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:
What is Nullification?
From the Random House Unabridged Dictionary:
Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
A Short History of Nullification
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various "personal liberty laws" that Northerners enacted in defiance of federal fugitive slave laws).
And now, with that short introduction out of the way, let's get to the meat of the issue.
Is Nullification Constitutional? Compact Theorists versus Nationalists
In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the "people of the United States" in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.
As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865), may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.
Is the Union a Consolidated Nation-state, or a Confederation of States?
Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that "these United Colonies are, and of right ought to be free and independent states." The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: "At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one."
Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, "All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance. . ." The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.
The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States." Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.
In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only "between the states so ratifying the same" (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: "I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible."
Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, "between the states") demonstrates for us. Patrick Henry, speaking in Virginia's ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by "the people of the United States"; however, James Madison countered that idea. "Who are the parties to it?" asked Madison, "the peoplebut not the people as composing one great bodybut the people as composing thirteen sovereignties." As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a "national government. . .consisting of a supreme legislative, judiciary, and executive," but the plan had been rejected, and the word 'national' had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a "compact" to which the states had "acceded" (agreed to join) and the new Union as a "confederacy" and a "confederate republic." The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: "Different confederacies have different powers, and exercise them in different ways. . .great latitude, therefore, must be given to the signification of the term."