States and nullification: part I

Posted on Oct 14 2013 - 6:04am by Cory Ferraez

Do you remember when our state representative Jeff Smith coauthored a bill for a nullification committee? We, and several other states, followed Idaho in opposing the health care law. Most on the left and some on the right rejected this notion as absurd. Jeff was skewered as some neoconfederate-leaning politician, yearning to bring back our state’s confused notion of nullification in 1960s. Not to mention a skit on “The Colbert Report” for his handlebar mustache.

But those people were mistaken. Terribly mistaken. No one even cared to understand this issue, and those who disagreed didn’t tell us why we’re wrong for believing in nullification, simply dismissing it as illogical and absurd, and, as I always say, using emotion, hysteria and race to avoid intellectual conversation.

So, I’m using a few articles to explain nullification because it’s important not to listen to the media, left or right, but to think for yourself to determine which arguments are the most logical and well-founded. And don’t think everything that lawyers and historians say about the “law” on nullification is correct. I think we’ve seen it all wrong.

First, a real problem is what’s taught in our law schools, most clinging to federal supremacy above all else. Lest we forget that our Constitution provides a list of enumerated powers granted to our federal government, with the rest delegated to the states or people. Combine that with an activist Supreme Court over a century by granting, in passing, its mystical words “holier than thou” status on par with that of the Constitution itself in the 1958 opinion Cooper v. Aaron.

Supremacy doctrine can best be explained by examining the Constitution’s Supremacy Clause language in Article VI, Clause 2: “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.”

“Scholars” commonly leave out “laws which shall be made in pursuance thereof.” What it doesn’t say is “federal laws shall be the supreme law of the land, regardless of whatever laws we happen to pass.” Federal laws are supreme only when they adhere to the Constitution. As Tom Woods poignantly notes in his book, “Nullification,” do we really expect the states to have ratified a Constitution that gave the federal government complete control over any laws they choose to pass that may or may not violate the Constitution?

Even Alexander Hamilton acknowledged this in New York’s ratifying convention. And in Federalist Papers 33, Hamilton wrote that supremacy is confined to a law’s Constitutional realm.

Second, this is not just a “right” issue. Countless states, blue and red, have questioned or defied federal laws: California and Colorado with marijuana, dozens of states refusing the REAL ID Act and, more recently, states refuting the health care law or possible gun laws.

One thing you will find it difficult to use is the mystical race card that you so impetuously pull from your pocket. It’s true; southern states incorrectly summoned nullification in the mid-20th century. However, what is not true is southern states used nullification to justify slavery. For what anti-slavery laws would they have used it on? History tells us that more northern states have used this principle than southern. Specifically, this tendency stemmed from 1798 when Madison and Jefferson first introduced nullification in the Virginia and Kentucky Resolutions to oppose the Alien and Sedition Acts.

After 1798, decentralization ideas continued to flourish. Nullification was used as a proponent of free markets, free speech and free trade and, notably, by northern states to reject fugitive-slave laws and military conscription. In fact, it appears nullification was used more against slavery then it ever was used for it.

Was nullification so appalling when Wisconsin’s Supreme Court invalidated the Fugitive Slave Act as unconstitutional and void in 1850 (citing the 1798 resolutions) only to be rebuked by the U.S. Supreme Court in 1859? What about when it was used by northern states against illegal searches and seizures through the federal embargo of 1807-09? Or when the Connecticut legislature and Daniel Webster urged states to resist federal authority if Washington enacted military conscription during the War of 1812?

States do unjust things. States are a form of government after all. But, we can at least use them to restrain a much larger creature if appropriate. Remember, the people are sovereign; we apportion the power between and to our government, we are not the powerless.

Both Jefferson and Madison assured members of state delegations that the federal government’s power would be checked. And Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions because it was there the people were instructed with and debated what the Constitution meant. It’s a good place to begin our inquiry.

I’ll have more points on nullification next time. More importantly, our generation doesn’t get a pass. We have too much readily available knowledge to believe emotional shouting matches on cable news and headlines on the Drudge or Huffington Post. When you encounter subjects like this, it’s up to you to engage in further research — hopefully you wonder above the latest celebrity or “Duck Dynasty” gossip and discuss it intelligibly — I would prefer in your coffee, scotch or martini klatches. If you’re not in one or don’t know what a klatch is ladies and gentlemen, take my advice and form one.

Cory Ferraez is third-year law student from Columbus.