March 5, 2010
A Curious Dalliance with NullificationBy J. Robert Smith
Some conservatives, and more libertarians, voice support for nullification, or the idea that states have the right to strike down within their jurisdictions national laws considered unconstitutional. The curious thing is that the Constitution neither expressly nor implicitly confers the power to states to nullify national laws. Nor can justification for nullification be found in the Declaration of Independence, which, of course, preceded the Constitution and is a critical part of the whole that comprises the nation's founding principles.
Advocates for nullification are motivated by a deep frustration and justifiable consternation over the expansion of national government authority during the last eighty years or longer. This expansion of government tracks the rise of liberalism (formerly progressivism) from the early twentieth century to present.
Indeed, the national government has overstepped its constitutional bounds, encroaching on state powers and individual rights. But the remedy to national government overreach isn't nullification, which has no basis in law and may well create more and far greater problems than it purports to solve. Those problems are national government paralysis in carrying out its lawful functions and, possibly, disunion.
The primary argument used by nullification advocates is that the American nation is an association of states, not a union of the people. This argument for an association of states is also used by some to justify secession. In essence, the argument is that the states entered into a contract agreement with one another. In so doing, states surrendered some of their powers to a national government while retaining others for themselves. Where the contract is breached -- specifically, where the national government acts beyond its perceived constitutional scope -- then a state has recourse to nullify national laws in a declination to submit.
Thomas L. Krannawitter, an assistant professor of political science at Hillsdale College, in providing a brilliant analysis and defense of Lincoln's politics in his book Vindicating Lincoln, examines closely the arguments used to promote and justify nullification and secession leading up to and during the Civil War.
On the subject of the Alien and Sedition Acts, which were passed by the Federalists to muzzle free speech and which are cited not infrequently by nullification advocates as proper cause for nullification, Krannawitter cites James Madison, the father of the Constitution (who strongly opposed nullification):
"Madison," writes Krannawitter, "rejected this theory of nullification in favor of majoritarian constitutionalism, one characterized by majority rule, minority rights, and free elections" [ii].
No effort to nullify the Alien and Sedition Acts led to their downfall, but, as Madison wrote, the acts were brought down by "the opinions and feelings of the community"; "the first elections that ensued put an end to them" [iii].
Under the Constitution, the people have recourse to overturn bad law. They have the right to assemble, petition and redress, a natural right to speech, and the right to overturn laws of the national legislature through elections. In other words, the means and mechanisms are in place for the people to right wrongs that result from the actions of the national legislature, the executive, or the courts (through appointment of judges and appeal to higher courts or, ultimately, through constitutional amendment or constitutional conventions if the highest court blocks legislative remedies).
Where the majority may concur in a bad law, the rights of the minority (of individuals) are protected. Minorities can contest to win recognition of their natural rights or strive to assemble a majority in their favor.
It's curious that some libertarians in particular, who stoutly champion individual rights, would position a corporate entity -- a state -- over and above the individuals who comprise the states and nation. It's odd that libertarians would boost the state over the individual as an arbiter of national government acts.
Do states serve as the people's agents? In the case of nullification, a state may serve as a majority's agent, but the majority may be wrong, entirely or in part. A state's executive and a majority in the legislature may well be incorrect in their estimations and may act contrary to the people's rights.
It's entirely possible that nullification in practice could be misused, something not much discussed among proponents. Texas or Georgia may act to nullify a federal law they deem unconstitutional, and these states may be correct in their estimation as conservatives and libertarians understand the Constitution. But take liberal states like Vermont and Massachusetts. Liberal states, too, would possess the power to nullify national laws that they construe as unconstitutional.
As conservatives know, liberals have a decidedly different interpretation of the Constitution. Liberals generally reject the original intent that conservatives and libertarians rightly embrace. But it's from a loose interpretation of the Constitution that liberal majorities in the Vermont and Massachusetts legislatures would act.
What might it mean for liberal states to nullify national laws or national government actions in times of war, for instance? What if, by their reasoning, liberal states consider a war constitutionally illegitimate, as more than a few liberals doubtless consider the War on Terror since 9/11? How does it benefit the nation's security, which is the national government's responsibility, if a combination of states chose to withhold National Guard troops and prevented the national government from collecting taxes, or a portion of taxes, from those states' citizens for a war's execution?
With nullification, it's not always -- or even mostly -- that conservative or libertarian interpretations of the Constitution will prevail. In liberal hands, nullification could be used to strike down good laws or thwart good ends. Nullification in practice would be a very dangerous double-edged sword.
If nullification is not permissible under the Constitution, then what is left to the people to stop grave violations of liberty? What recourse do the people have when constitutional means have failed to end tyranny? Thomas Jefferson provided a remedy to despotic government in the Declaration of Independence, a remedy concurred with by the signers:
The national government, then, if irredeemable, is subject to being altered or abolished and replaced by government that respects liberty. This is a last recourse, but a recourse nonetheless.
Reclaiming lost liberties and reassigning the national government to its proper limited role is a formidable challenge. Undoing eighty years of liberal damage to freedom won't come easily or quickly. Returning the nation to the Founders' intent, though, can come eventually through the education, persuasion, and mobilization of the people. Since the tumultuous 1960s, with Goldwater's candidacy and Reagan's ascendancy, Americans have been awakening in ever-larger numbers to the threats to liberty. It's through the people, and not nullification or other extra-constitutional means, that the nation will experience its rebirth of freedom.
[i] Thomas L. Krannawitter, Vindicating Lincoln, Defending the politics of our greatest president (Lanham, Md: Rowman & Littlefield, Distributed by National Book Network, 2008) 182.