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I don’t know who Paul Zummo is, but I know he wrote this. It’s the usual arguments against nullification, as if no replies to them existed.
He tries to claim, first, that James Madison, in the Virginia Resolutions of 1798, wasn’t calling for nullification; he was just saying the states had the right to get together to protest unconstitutional laws. Oh? Why bother to pass solemn resolutions urging that the states had a right that absolutely no one denied? When Madison tried to weasel out of his position three decades later, people asked the same thing: if that was all you meant, why even bother drafting such an inane resolution in the first place?
And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Historian Kevin Gutzman dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book.
Then Zummo says the Supremacy Clause defeats nullification. Only someone with a law degree could make such an elementary error, so I’m assuming that’s what I’m dealing with. Does the Supremacy Clause say, “This Constitution and laws of the United States which shall be made in pursuance thereof, along with any old laws we may choose to impose on you, shall be the supreme law of the land?” That’s not what my copy has.
The rest is just the same old conventional nonsense. Nullification would be “chaotic,” but a federal government that acts with a free hand — i.e., what we have now — is not chaotic. (Yes, letting the states govern themselves in areas where the federal government was never delegated authority would be just so chaotic — oh, wait, that very arrangement was the United States as originally envisioned!) Just wait for the Tenth Amendment to enforce itself. And yes, lawsuits in the federal government’s own courts are a winning strategy. Sure. Just pretend the 20th century never occurred.
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