Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

August 17, 2010

Point: Nullification Is The Civil Disobedience of Federalism

by Brad Warbiany

This post is a part of our continuing series Point/Counterpoint. I am taking the position that state Nullification of federal law is a legitimate action, and Doug Mataconis will respond tomorrow with a rebuttal. In memory of James Kilpatrick, we’ll dedicate this installment to him.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

This 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

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  • Jack Stevison

    one sticking point about your argument.

    ” the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery.”

    not fully true.

    From the book, “Was Jefferson Davis Right?”

    “If the South had free trade, then the Northern industrialists would be forced to compete against cheaper goods from Europe. If the North had protective tariffs, then the South would be forced to pay more for its goods and face the prospect of a trade war with its European trading partners.”?

    It was also a zero-sum dilemma that caused the South to secede.

  • http://thelibertypapers.org/ Brad Warbiany

    Jack, you are correct. Yet I find myself feeling like the INS guy from the illegal immigrant episode of the Simpsons, talking to Apu: “Just say slavery.”

    Slavery was being fought since the time the Constitution was written, and animated so many of the political battles of the 1800’s that it was a major cause of the secession. There’s a lot to be learned by digging deeper, but it was beyond the scope of writing here.

  • Julie

    Brad–Maybe your fundamental question “Is Nullification of federal laws legal?” is the wrong question. Maybe the question should be “What did our founders have in mind when they added the 10th Amendment to the Bill of Rights? And what recourse did the sovereign states have when the federal gov’t. usurped the powers of the states or the people?” The states, under the 10th Amendment, have just as much authority to protect their powers as the federal gov’t has to exert “supremacy” when they stay within their enumerated authority. So I take issue with your assertion that the Supreme Court is the sole arbiter of the constitutionality of federal laws.
    Nullification is within a states power to refuse to abide by “unlawful” federal legislation. Particularly today when our constitution has been distorted beyond recognition by activist jurists and power-drunk Congresses.

  • http://thelibertypapers.org/ Brad Warbiany

    Julie,

    The problem is that if the states are the arbiters of constitutionality, the supremacy clause is dead letter, as the states can pretty well deny following any law that even has questionable authority under “enumerated powers”. If the Supreme Court is the arbiter of constitutionality, the 10th Amendment dies in an environment like today’s SCOTUS, which takes an expansive view of constitutional authority. There may be middle ground in there, but I’m just not seeing it.

    I think your wider point, that the founders would never have seen the current expansive government as legitimate, is true. Nullification battles were fought by those founders in the post-Constitution Republic (Jefferson/Madison “nullifying” the Alien and Sedition Acts).

    I could have structured my Point along the lines you suggest. There are some very interesting legal and historical questions there. However, Doug (a lawyer by trade) would likely have eviscerated me in his Counterpoint. Whether one accepts the settled law or not, settled law has largely made nullification moot from a legal perspective (though not from a civil disobedience perspective). He still may beat my above argument (we’ll find out tomorrow morning), but fighting for legitimacy on the moral — rather than legal — grounds seemed a better tactic.

  • Julie

    Brad–I understand your reasoning and as you stated, we’ll see tomorrow how your opponent responds.
    One more point. In an ideal world, the middle ground would be dual federalism–mutual respect of delegated powers between the states and the feds.
    But at this point in time, the feds have so violated the states’ sovereignty and the Supreme Court–a branch of the federal gov’t., has failed to protect the states for so long that nullification is being resurrected as a delicious and legitimate recourse for the states.

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  • http://statesaresovereign.webs.com Brian McCandliss

    Nullification is neither civil disobediance nor illegal; it is simply the people of a state, “pulling rank–” as their own sovereign rulers– against the federal government, which is simply their hired managers.

    To say this is illegal, would be like saying that Bill Gates was breaking the law by overruling a manager at Microsoft.

  • Pingback: Below The Beltway » Blog Archive » Debating Nullification At The Liberty Papers()

  • Peter

    “the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment”

    I do not think this is correct. The state is the collection of individuals, and the same collection of individuals elects the senator. The senator still represents the state, just the method of appointment was changed to be more open and more reliable.

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