by Michael Maharrey, Tenth Amendment Center
This is a response to the article published by the NC Institute for Constitutional Studies – “Nullification: An Unconstitutional Remedy.” [August 23, 2012. Referenced at: http://ncicl.org/article/776]
Also reference Diane Rufino’s previous article “Nullification and the Myths.”
Interestingly, opponents of nullification rarely, if ever, challenge James Madison and Thomas Jefferson’s reasoning head on.
Those who manage to get past the straw-man arguments centering around racism and the Civil War generally go straight to constitutional jurisprudence and Supreme Court rulings to make their case. But the principles of nullification articulated by Madison and Jefferson reject the authority of the Supreme Court as the final arbiter, based on the fundamental nature of delegated powers, and opponents never directly challenge their reasoning. Anti-nullifiers simply march right along declaring doctrine fatally flawed with statements like this one by the author of an article published by the North Carolina Institute for Constitutional Law.
“It has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958).”
The North Carolina Institute for Constitutional Law follows the lead of the SCOTUS and flatly rejects nullification as well, based primarily on the “supremacy” of the Supremes and a laundry list of other nullification opponents. He couldn’t make his utter disdain for the doctrine any clearer.
“Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court. Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.”
The staffer deserves some credit. He does a fair job of presenting the history of nullification, even including the fact that northern states relied on the principles to battle the draconian fugitive slave laws in the 1850s. And for the most part, he resists the temptation to categorically paint nullification with the racist brush, taking a milder approach, asserting the principles have “a checkered past.”
But despite his reasoned approach and utilization of numerous academic references, the staffer falls into the same shallow arguments as his less sophisticated counterparts.
In general, the writer relies on a subtle method to make nullification seem unreasonable. In the introduction, he asserts “nullification has never been widely accepted as a solution to alleged unconstitutional federal actions” and builds on that premise throughout the article, creating the impression that no thinking person could possibly embrace the doctrine. For instance, he points out that 10 northern states flatly rejected the Kentucky and Virginia resolutions. But he leaves out important political context and never mentions that those same states embraced nullification just a decade later when politically expedient. Those northern states that vehemently opposed nullification when it applied to the Alien and Sedition acts embraced the principles to resist Jefferson’s embargo, and later, military conscription during the War of 1812.
The illegitimacy of the staffer’s subtle reasoning becomes apparent when pulled out into the open. He tries to prove nullification flawed by arguing that “most people reject it,” as if most people denying a fact makes it untrue. Most people rejected the notion that the earth revolved around the sun for hundreds of years. Their doubts clearly didn’t alter the course of the planets.
The staff writer does attempt to make a “constitutional” argument against nullification, first asserting that the Supremacy Clause forbids state action against any federal act.
“The Supremacy Clause declares that federal laws are ‘the supreme Law of the Land…any Thing (sic) in the Constitution or Laws or any State to the Contrary notwithstanding.’ U.S. Const. art. VI, cl. 2”
Like almost every proponent of centralized power, the writer completely ignores a key phrase in the Supremacy Clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land. (Emphasis added)
Any federal act not “made in pursuance of the Constitution” does not stand as the supreme law of the land. It is, in fact, an illegal usurpation of power. The Supremacy clause does not bind state governments or the people to follow unconstitutional acts.
That leads to an important question: who decides constitutionality?
The North Carolina Institute for Constitutional Law staff writer insists the Supreme Court does. In fact, this stands as the cornerstone of his argument against nullification, as we’ve already seen.
The writer asserts that nullification lacks legitimacy because the Supreme Court says so, but the principles of nullification rest on the premise that the states, not the Supreme Court, make the final determination as to the constitutionality of an act. Jefferson spells this out in the Kentucky Resolutions of 1798.
That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
The staff writer’s position makes the created lord over the creator, insisting that the federal government gets to decide the extent of its own power. This makes as much sense as allowing a Cowboys player to serve as a referee in a football game between the Dallas and the New York Giants.
St. George Tucker wrote the first systematic commentary on the U.S. Constitution in 1803. It served as an important handbook for American law students, lawyers and judges in the first half of the nineteenth century. He grasped the absurdity of elevating the SCOTUS to the role of sole and final arbiter of the Constitution.
“The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it – the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituent?”
James Madison expounded on this idea in the Report of 1800.
“The (Virginia) resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
Madison, Jefferson and Tucker grasp a simple but profoundly important concept: if the federal government gets to define the extent of its own authority, the federal government possesses unlimited power, leaving the people defenseless and without remedy when that government exercises powers it was never meant to have. Surely, that was not the intention of the ratifiers, who clearly stated that they understood the Constitution limited the new government to carefully prescribed roles.
Of course, our writer will quickly assert that Madison renounced the principles of nullification in the 1830s, pointing out that he vigorously objected to John Calhoun’s interpretation of the doctrine to nullify the “Tariff of Abominations.” But the staffer apparently never looked deeply into Madison’s later arguments against nullification. In fact, he addressed as specific scheme concocted by South Carolina asserting state nullification bound other states.
In his 1835 Notes on Nullification, Madison wrote:
That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide.
In other words, Madison was not objecting to the principles of nullification in general, but the specific application created by South Carolina. Did Madison reject nullification outright? No. He did agree with our writer that it was outside of the constitutional structure itself. But he continued to hold that it was a legitimate act when all remedies prescribed by the Constitution fail to restrain usurped power i.e. through the courts, legislative remedies or at the ballot box. He went on to write:
She (Virginia) asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.
In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.
So you see; Madison never actually turned his back on the fundamental principle of nullification – resistance. In fact, he even outlined the process.
The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.
The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place. Nullification simply asserts that power ultimately remains with the people of the several states, and that they have a right to take action when the general government they created acts outside of its delegated powers. Nullification does not stand outside of the constitutional system; it is fundamental to it. To deny nullification is to deny the sovereignty of the people of the states, which is to deny the very foundation of the American system. If one accepts the construct of the Union as Madison, Jefferson and most importantly the ratifying conventions understood it, nullification logically follows.
When the federal government takes on power it was never given, the people and the states must possess a remedy in the last resort. Nullification morally, philosophically and constitutionally stands as the rightful remedy.
That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same.
The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place. Nullification simply asserts that power ultimately remains with the people of the several states, and that they have a right to take action when the general government they created acts outside of its delegated powers. Nullification does not stand outside of the constitutional system; it is fundamental to it. To deny nullification is to deny the sovereignty of the people of the states, which is to deny the very foundation of the American system. When the federal government takes on power it was never given, the people and the states must possess a remedy in the last resort. Nullification morally, philosophically and constitutionally stands as the rightful remedy.
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” – Jefferson
Nullification: An Unconstitutional Remedy,” NC Institute for Constitutional Law, August 23, 2012. Referenced at: http://ncicl.org/article/776