A Primer on Nullification

2010 December 10

by Michael Parmele

This morning  I would like to address the movement within the so called Tea Party, which is by no means monolithic or unified, except in their apprehension and desire to “take back America” from what, whom, or whence cannot be said, but America needs to be brought back from somewhere.  To support the position that “the Tea Party” is not a monolith, I present the web site, www.dailyteaparty.com, whose banner reads, “DAILY TEA PARTY: ‘Reclaim the Tea Party!’ – Restore the Republic.”

In his article, “Interposition, Nullification and Popular Resistance -Employed by state governments, intended to protect their citizens from unconstitutional acts that violated their rights,” Derek Sheriff, aggregated at the above mentioned site, gives yet another voice to the concept of “nullification,” in the constitutional sense.  We hear about nullification quite a bit these days, mainly since the passage of the flawed “health care” reform legislation last year.  Since then, the volume on the nullification debate has steadily grown into a cacophony of those coming a little late to our national debate; those who “woke up” after the election of President Obama to realize that the country was barreling over the falls in a variety of ways.  What I hasten to inform them is that the country was in this barrel long before we elected a secret Muslim for a President, but I digress.

Since passage of that legislation, more and more people are discovering the theory of nullification and its bastard sister, interposition.  At this point, many state legislatures throughout our country are considering, or are planning on introducing, legislation which would, in effect, nullify the federal health care legislation in their state.  A Texas state legislator has even gone so far as to file a bill for the 2011 legislative session that would “create[s] penalties of up to $5,000 in fines and up to five years in jail for anyone guilty of the “felony” of attempting “to enforce an act, order, law, statute, rule or regulation” of Obamacare.”[1]

Nullification is the constitutional theory that, ultimately, each State is sovereign and, therefore, the final authority over the constitutionality of any act or legislation taken by the United States Federal government.   The theories of nullification and interposition, put forward eloquently by James Madison that “state bodies are ‘duty bound to interpose’ or stand between federal encroachment on the rights of a sovereign state.“  Of course, Madison never really fleshed out what specific actions or legal pathways to carry this out.  But what is generally believed by supporters of this theory is that State governments may nullify or refuse to apply any federal action within its borders if the State deems that action unconstitutional.  As apparent from the fact that Madison weighed in on the issue, debate has been ongoing since 1798 with language in the Kentucky and Virginia Resolutions.  This is an inherently American tension between guarding against tyranny and the recognition, in Ben Franklin’s words, “[W]e must hang together, gentlemen…else, we shall most assuredly hang separately,” acknowledging the need for the American colonies/states to be united or else this most ambitious experiment in democracy would utterly fail.   It is strange that the most recent iteration of this debate comes with “the Tea Party” proposing it so forcefully.  All across the nation, state legislatures, governors, attorneys general, and their political supporters, echo chambers, and pundits are clamoring for the need to assert this “right of nullification.”  Nullification is a “right,” for the record that has never been successfully asserted in court, never. Ever.

The main opposing force to this theory is, oddly enough, that of the United States Constitution.  That is why it is so strange that those whose purported wish to “take America back” to the Republic envisioned by the Founders, where the Constitution reigned supreme, are one of the primary sources for this generation of nullification supporters.  But two parts of the Constitution specifically deal with any thought that nullification or any other state attempt to cancel, void, or ignore action from the Federal Government would be acceptable.  Because nullification rests on the thought that the states are the final arbiter of constitutionality, we should look through the Constitution to see if it speaks to the process of constitutional review and we find that it does.  Article III invests the Supreme Court (and other inferior courts as may be created)” appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Now, this provision seems to seat the power of judicial review, a power specifically claimed by the Supreme Court in Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803).

The other provision of the Constitution which would on its face, seem to dispel any thought that a right to nullify federal actions by a state or group of states exists, is the “supremacy clause” of the Constitution.  The supremacy clause is truly what, upon ratification by the States, creates the United States.  Without the supremacy agreed and ratified by the several states at the time and every other state which has joined our Union since, then the Constitution would be nothing more than a different version of the Articles of Confederation, a framework, which had already proven its catastrophic failure, necessitating what became the Constitutional Convention.  “The clause reads, “[T]his 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, anything in the constitution or laws of any state to the contrary notwithstanding.[2]

No court, ever, in any jurisdiction in this country, has upheld the right to nullification by the states against both the rights bestowed upon the Supreme Court in Article III, or the Supremacy Clause of Article VI.  Specifically, the case of Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958), a case resulting from the Brown v. Board of Education decision ending racial segregation in schools across the country.  The Court held that, “The United States Constitution is the supreme law of the land per the Supremacy Clause of Article VI. In Marbury v. Madison, the federal judiciary was declared the supreme authority with respect to Constitutional interpretation. Marbury v. Madison has been respected by this Court and the nation as a permanent and indispensable component of the American constitutional system of government.” Furthermore, “[B]y refusing to conform to the Supreme Court’s interpretation of the Constitution and precedent, state government officials violate their oath to support the Constitution. To rule otherwise would make the Constitution a solemn mockery.”[3]

But those two, seemingly straightforward, arguments against nullification and interposition are not alone, nor are they the most compelling.  The legal arguments have been going on since before our country’s founding and they continue today.  This debate has ebbed and flowed in intensity, never more so than during 1861-1865, where the debate of nullification was held on the battlefields of the United States in what is known as the American Civil War.  This was the ultimate test of whether a state, or confederation of states, bound by their ratification of the United States Constitution to follow and be held accountable by its tenets, could declare null and void an act taken by the Federal government.  The results of that debate follow, as I said, hotly contested, indeed:

Casualties of the American Civil War[4]

Union: Combat: 110,070

Other: 249,458

Confederate: Combat: 74,524

Other: 124,000

Union: 275,175

Confederate: 137,000 +

So forgive us, “Tea Party” and those supporting efforts in states to pass nullification legislation and other efforts that have been taken to limit, encircle, and abridge, the power of the United States Federal government, specifically, the current elected administration.  We have fought this fight, in its most bitter version, and we, the United States of America, after far too much bloodshed of brother by brother, came to the conclusion that the Constitution would stand and that states, finally, are bound by the oaths of their fathers, our Founders, that we shall hang together and any attempt to forcibly break up that union shall be considered rebellion and put down.  So go ahead, just remember that everyone has the right to revolution, a right I embrace, enjoy, and cherish, but if you do not succeed, yours is not a revolution but a rebellion waging war against the United States of America and explicitly against the Constitution you claim you wish to restore, take back, protect and defend.

And so it is to you, those supporting a renewal of this debate, I ask, doing my best imitation of you…

Why do you hate America?

[1] http://www.dailyteaparty.com/2010/12/05/texas-representative-leo-berman-calls-for-jail-time-for-enforcing-obamacare/

[2] http://www.usconstitution.net/const.html

[3] http://www.lawnix.com/cases/cooper-aaron.html

[4] http://www.historyguy.com/american_war_casualties.html

One Response leave one →
  1. Patrick McPartland permalink
    December 10, 2010

    This is so true and to show why they think this I offer this site. They want nullification because they never learned that is it unconstitutional in school.


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