J. Robert Smith writes A Curious Dalliance with Nullification at American Thinker today. By using three citations from a single page in a single book, he determines that the idea of nullification is mistaken and that those of us who support nullification as a remedy to federal overreach are misguided. Here are the the article and the comments. Personally, I found many of the comments to be more enlightening than the article itself.
Mr. Smith’s main points against nullification seem to be:
2.) According to one author, Madison said that the Virginia Resolution of 1798 was misinterpreted by people who claimed that it supports nullification.
3.) Nullification is potentially dangerous, as states may also try to use it to nullify “good” laws.
Mr. Smith also says,
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.
I don’t necessarily agree about primacy, but that argument strikes me as sound. Since Mr. Smith makes no effort to counter it, I think he has effectively undermined his own premise. But let’s look at his other points anyway.
With regards to the first point, in his own article Mr. Smith cites the Declaration of Independence, where it says
“That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. [emphasis his]“
By thinking carefully about those words, we might realize that nullification is exactly a way to alter a government which has become destructive to those stated ends. Thus, we find the support for nullification which Smith overlooked in the Declaration of Independence.