States and nullification: Part II

Posted on Oct 21 2013 - 8:00am by Cory Ferraez

In my article last week, I wrote a bit on nullification.

For a quick refresher on my previous points:

1. Historians and legal scholars, including what’s taught in law schools, often have a one-sided view of the concept on the supremacy of federal laws above all else (fortunately, not our law school; we’re well-balanced).

2. While race has played a role in nullification in Mississippi’s deplorable past, we can condemn those actions while still appreciating and engaging in the larger historical context of nullification and its useful purpose of restricting the growth of federal power. Moreover, nullification has been used far more against freedom-restrictive laws (Fugitive Slave Act and others) than it has ever been used in support of them (school segregation).

3. States, red and blue, have used the nullification concept in recent years for issues ranging from drugs, national identification and health care to potentially restrictive federal gun laws.

4. Historical context is very important in understanding nullification, including constitutional text, states’ ratifying conventions and the Virginia and Kentucky Resolutions of 1798 authored by Madison and Jefferson (the Principles of ‘98).

Caveat for a heated issue: No doubt, several Southern states erred in conjuring nullification-esque words during segregation. But like all governments, state and federal, we can expect flaws and failures. Supporters of nullification don’t think state governments are sound and the national government is terrible. They both are. As representative Jeff Smith (coauthor of our nullification or “neutralization” bill) often quotes Mark Twain: “No man’s life, liberty or property are safe when the legislature is in session.” I believe that can be applied to both state and federal government.

Now, let’s take a step back and then go deeper into the rabbit hole, shall we?

First, more broadly, nullification means an act by a state that as its end result intends to render a federal law null, void or unenforceable in your state. It cannot be removed by executive order, rendered void by the Supreme Court or legally repealed by a law in Congress. It can only be overturned through a constitutional amendment. Importantly, for all you historians out there, nullification is not secession or insurrection.

Second, in the Principles of ‘98, Madison coined the term “interpose,” which others, far smarter than I could hope to become, believe is a close family member to nullification. Specifically, it’s a state act to question the constitutionality of a federal policy and “interpose” its sovereignty between, at least temporarily, the people of that state and the distant federal authority until the question of constitutionality is resolved.

While the Virginia Resolution used this interposition theory, Jefferson and the Kentucky Resolution clearly indicated the desire to nullify federal laws interpreted as unconstitutional (i.e., by using the word “nullification”). Both nullification and interposition stand firmly on the roots of the 10th Amendment.

By our friend’s logic on the opposite side of this issue, if we oppose states providing a check on federal laws that violate the Constitution (or decentralization), any deplorable act by our federal government, or other sovereign nations, naturally means that a world government is needed to check everyone. By that same reasoning under a world government, those who disagree with it, like I am here, would be attacked with how bad and chaotic decentralized government is. Besides those pushing for a stronger United Nations, most Americans don’t much care for the U.N. telling us what we can and can’t do. Nor do we care for international laws that place power in the hands of international bodies over our own government.

Third, nullification stems from the “compact theory” of our Union. That means: States preceded our Union (see the “free and independent states” in our Declaration of Independence) and no government is sovereign — our people are sovereign. Because we are sovereign, when the entities we grant power to act with uncertainty in an unconstitutional manner, we have the ability to restrain such power. So what if states have different policies and views? That’s what the compact theory necessarily means.

Fourth, it’s true. The Supreme Court wouldn’t uphold nullification. It certainly didn’t like it in its decision Ableman v. Booth (Wisconsin voided the fugitive-slave laws). Well, of course they wouldn’t like it. The court would lose power if it didn’t have the definitive last say on constitutional issues. And as we know from D.C., everything is about power. But what does it matter if the highest court in the land doesn’t approve or acknowledge it? If nullification is to be used correctly, it shouldn’t matter what direction federal edicts flow — executive, legislative or judicial.

To that I turn to Madison’s Report of 1800, which has a very telling passage: There must be some recourse for the judiciary betraying the Constitution. While not placing too much emphasis on Madison himself, historian Kevin Gutzman clearly shows that Virginia’s General Assembly debates over the Principles of ‘98 found unconstitutional laws null and void. Thus, why can’t nullification be used as tool to disallow nonconstitutional laws from being enforced?

While on the subject of the Supreme Court, Thomas Woods once asked a critic of nullification if he would have supported it during the federal roundup of Japanese Americans during World War II. Interestingly, the critic replied it wouldn’t be necessary — for there is a Supreme Court case that would do just fine: Yick Wo v. Hopkins in 1866 that applied the equal protection clause. Hm, I certainly wouldn’t hold up a decision by the Supreme Court in the face of federal troops swooping in to capture Japanese citizens in our state. I’d much rather the states get together and tell the feds to go “f” their roundup because it’s not going to happen within our borders.

Cory Ferraez is a third-year law student from Columbus.