Answering Objections to Nullification
Posted by Derek Sheriff
On May 17th, Arizona Tea Party activist, Steve Weston, was interviewed on a Blog Talk Radio show called, Crossroads with Van. I hope you will check out the show and tune in often!
This particular interview introduced the topic of state nullification and addressed the question of whether its use is constitutional or not.
I wanted to appear on the show as the other guest, in order to champion nullification, but unfortunately, my work schedule did not permit it. However, you can listen to the entire interview by clicking HERE. And you can also listen to a previous debate between Steve Weston and Professor Kevin R.C. Gutzman by clicking HERE
This is the first in a series of blog posts meant to clarify some of the issues raised in the interview, to correct some of the errors that Mr. Weston made concerning the history of nullification and to share some observations and insights that I gained from listening to the interview.
Who’s the Authority?
At the beginning of the interview, Mr. Weston mentioned that he considered Thomas Jefferson and James Madison to be the two most authoritative writers on the subject, with Madison’s writings carrying the most weight, in his opinion.
While I agree that Jefferson and Madison were two of the most important figures when it came to articulating and clarifying the doctrine of nullification (what would eventually come to be known as the Principles of ‘98), I would like to point out that arguments in favor of nullification go all the way back to the ratification debates (especially in Virginia), and were instrumental in persuading those opposed to the Constitution’s ratification.
Also, a number of other brilliant, although younger patriots, whose lives overlapped with those of Jefferson and Madison’s, were also important champions of nullification. Their insights and arguments concerning the nature and character of the Union need to be considered as well. The arguments I’ve always made in favor of state nullification have never been based on the ideas or writings of one, or just a few, founders, framers or ratifiers. One has to to look at the big picture, and listen to the many voices that were all part of this long debate, both before, during and after the Constitution’s ratification.
But back to the radio interview…
Right away, Steve Weston made a distinction between what he considers the legitimate way to nullify an unconstitutional federal “law”, and what he considers to be illegitimate forms of nullification. In making this distinction, he relied almost completely on Madison’s later writings in order to refute the idea that a single state, or a minority of states have the authority to suspend the operation of an unconstitutional federal act within their boundaries.
Mr. Weston stated:
“The legitimate means to nullify a federal law that we are in objection to starts with the ballot box, then goes from there to the courts. And if the courts do not uphold the Constitution as it is intended to be, then it’s constitutional amendment time.”
But that’s not Nullification!
First off, the process that Mr. Weston describes in the quotation above, is not nullification, at least as Jefferson, Madison or any of the other champions of nullification would have understood the concept of nullification during the antebellum period of American history. Court challenges might have been considered by some of them to be one very moderate form of interposition, but neither elections nor constitutional amendments can really be recognized as part of the process of state nullification or interposition as understood by most Americans prior to 1860.
Since Mr. Weston considers James Madison to be the preeminent authority on the subject of nullification, it’s not surprising that he relies heavily on Madison’s later writings to support his arguments. He unfortunately sees nullification as a process which would inevitably result in the ascendancy of a single state, or a minority of states over a majority of states. But this is just not the case.
Nullification is simply the process by which states may rightfully resist an unconstitutional act of federal usurpation within their respective limits. No claim has ever been made by the champions of nullification that one state, or a minority of states, could compel other states to reject or resist what they considered to be an act of federal usurpation.
Today’s advocates of nullification however, do assert that states do have the constitutional authority to annul or suspend an unconstitutional federal command, or ignore an unconstitutional federal prohibition, within the limits of their own states. We furthermore insist that states may do so while remaining members of the Union in good standing, since such actions do not imply that the Constitution is no longer in force.
All these principles were explained and defended in the Virginia and Kentucky Resolutions of 1798. They were also re-affirmed and clarified in Madison’s Report of 1800.
In my next blog post, I will address Madison’s objections to the South Carolina nullification movement of the 1830’s and explain why Jefferson and Madison did not consider elections, court challenges or constitutional amendments to be appropriate or effective responses to the acts of federal usurpation they were faced with in the 1790’s.
Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast "Principles of '98" can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here.