Recently, I came across this piece from Heritage ,which makes many misleading assertions regarding “nullification”. On many issues Heritage is a “good guy.” Sadly this is not one of them. From their commentary, it appears that they cannot, under any circumstances, allow any cracks in the veneer of authority that D.C. has crafted.
I thought I would give a shot at a point by point refutation.
HERITAGE: “Nullification Is Unconstitutional” The Nullification Temptation: In order to challenge the federal government’s unconstitutional actions, states are looking for options to reassert their legitimate role in the constitutional structure of federalism. Unfortunately, despite good intentions, some have been tempted to embrace nullification—the claim that an individual state legislature has the authority to veto federal laws.
RESPONSE: That is not strictly so, I will lay out what we at the Tenth Amendment Center consider to be “nullification”. If it did mean (literally) ” that an individual state legislature has the authority to veto federal laws,” then I suppose I would agree that nullification was a bad idea and illegal. That is not, however, and never has been, what nullification is. The most assertive version of nullification is a state law that makes enforcement of an unconstitutional federal act illegal within the state, and sets penalties for any official who attempts to do so. A veto, by comparison, would literally make the law null and void in every state in the union, and even make it cease to exist. Such a view would be empowering one state to rule the country. See the difference?
HERITAGE: Supreme Law of the Land: At the center of our system of government is the United States Constitution: All federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, the federal government, or an individual state legislature, for that matter.
RESPONSE: Excellent point, the Constitution and the laws made in pursuance thereof are the supreme law of the land. That means that any law that is in violation of the Constitution is not the “supreme law of the land” (in fact, it is no law at all). Moreover, any state law that is passed to nullify an unconstitutional law is more in “pursuance of” the Constitution than an unconstitutional federal one! In short, laws passed NOT in pursuance of the Constitution are not supreme to state laws that are in pursuance of the U.S. Constitution.
HERITAGE: Nullification Is Unconstitutional: The constitutional case against Obamacare can be made in detail and in general. State legislatures can do many things to object to, challenge, and seek the repeal of such federal laws. But there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.
RESPONSE: Absolutely false. It is true that there is no power of nullification stated in the U.S Constitution. It is not delegated to the Federal government. It is not specifically forbidden to the federal government. It is not delegated to the states. It is not forbidden to the states…
Wait a minute, the 10th amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So by the very facts I cited by virtue of the fact that it is not mentioned in the affirmative, or the negative within the Constitution, it is “reserved to the States respectively, or to the people”. In short, the 10th amendment is the clause that Heritage says does not exist…
HERITAGE: The Founders Rejected Nullification Nullification Is Bad History: Advocates of nullification often point to Madison and Jefferson’s drafting of the Virginia and Kentucky Resolutions of 1798—which protested the constitutionality of the Alien and Sedition Acts—as proof that the Founders advocated nullification. This is incorrect and misleading.
James Madison: Madison’s Virginia Resolutions did not speak of nullification or voiding laws, asserting that the resolutions did not “annul the acts” but were only “a legislative declaration of opinion on a constitutional point.” During the Nullification Crisis of 1832, Madison strongly denied John C. Calhoun’s theory of state nullification.
RESPONSE: As far as the Virginia resolution, we don’t have to guess what Madisons intentions where, we can check the report of 1799 where Madison Justified the Virginia resolution with among other things this gem “It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the. parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
While it may be true that Madison objected during the “nullification crisis,” you must look at what was being nullified, the 1832 nullification crisis was about tariffs, which are an enumerated power in the constitution. Calhoun said they where being applied unfairly to the detriment to the primarily export economy of the antebellum south, and the unfair advantage of the manufacturing north. Whether that is true or not is irrelevant. Nobody who seeks to nullify Obamacare, or the federal war on drugs or any of the other litany of nullifications that have been pursued recently is seeking to check Constitutional powers such as taxation. We are trying to check massive usurpations of the plain spirit of the Constitution where the feds are not only doing what was never intended, and is clearly not permitted, but what is clearly forbidden as well!
HERITAGE: Thomas Jefferson: While Jefferson referred to nullification in the draft of the first Kentucky Resolutions (by which he meant a natural right to revolution outside the constitutional structure), the final language excluded the term and called on other states to join “in requesting their repeal at the next session of Congress.” The 1799 version affirmed that the resolutions did not supersede federal law but were rather a “solemn protest” against the objectionable legislation.
RESPONSE: From Jefferson’s draft of the Kentucky resolution (Kentucky) “…does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact (U.S. Constitution), is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits…” So where Jefferson says every state has a natural right to nullify of their own authority all assumptions of powers within their limits, I think he was talking about the plain sense of the words. Now it is true that the nullification in Virginia, and Kentucky where never tested (the Democratic Republicans came to power shortly thereafter and they repealed the Alien and Sedition laws, but the state of Virginia was the most powerful state in 1798, and it is pretty sure that those laws would have been unenforcable within the state bounds of those states.
While Rep. Breckenridge did remove the nullification language from the draft presented to the Kentucky legislature, the resolution retained the assertion that the Alien and Sedition Acts were “void and of no force,” effectively declaring them null. And the follow-up resolution passed by the Kentucky legislature in 1799 did include the nullification language.
HERITAGE: Madison’s Alternative: In the Virginia Resolutions, Madison asserted the power of states “to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” This meant various state actions designed to arouse public opposition, challenge federal actions, and ultimately change or stop the objectionable action. Recent state Health Care Freedom Acts, not to mention subsequent legal challenges and pending elections, are good examples of state action challenging Obamacare.
The Constitutional Way to Change Laws: Rejecting nullification as an option does not mean that the states or the people have no recourse. The Constitution itself lays out the best path to change unconstitutional laws: object to the law and change opinions (and political leadership) in the political process, defund and slow its implementation, change or repeal the law, challenge it in the courts, and, if necessary, amend the Constitution.
RESPONSE: Here we have it, according to Heritage, you cannot fight D.C. except by using the fixed federal system. That is to elect new bums to betray us, to pass amendments, and hope the feds follow the slightly longer Constitution (which they ignore right now), to sue the Federal government, in the federal courts, and hope that the federal judges, who are appointed by the federal President, confirmed by the federal Senate, and paid out of the Federal treasury will side against themselves, and with the states… No thanks, I will stick with the clearly Constitutional path of nullification