When it comes to nullification, most people quickly find themselves out of their depth. They throw out the typical talking points – supremacy clause, the Supreme Court decides and the like. But most folks quickly run out of ammo. I’ve dealt with those arguments so many times, it’s a little like swatting away flies. Annoying, but not particularly taxing. Generally, I try to get people to dig deeper. To consider the intended structure of our Republic. To think about what it means to have a government of limited, enumerated power – and the absurdity of asserting that the federal government should determine the extent of its own authority. At this point, I usually find out what really drives the other person.
Generally, it’s a desire for centralized power.
In fact, it seems that very few people really want to make the government smaller and less intrusive. What they REALLY want is to lay their hands on the levers of power so they can get their way.
Anyway, I thought I would share a recent exchange I had with George. It demonstrates what we face every day here at the Tenth Amendment Center. Watch how he argues his point – and ultimately gives up – revealing his true colors.
George starting things off with this comment on nullification: SC did the same thing with cannon balls in 1860. Remember how that turned out.
Me: George -nullification has always been considered a way to check federal power short of secession or armed rebellion. It is simply state refusal to implement an unconstitutional act. Southern states never utilized nullification in defense of slavery.
George: Mike, I know what nullification is. South Carolina’s John C. Calhoun – known in pre-Civil War history as “the Great Nullifier” and served as Andrew Jackson’s VP – essentially invented the concept to protect the South’s dependence on slavery, as the issue emerged and grew in the late 1820s and beyond. In 1832, South Carolina, meeting “in convention,” passed a resolution to ignore (nullify) the federal tariff acts of 1828 and 1832. President Jackson responded with the Force Act, which threatened military action against a state that ignored tariff acts. Eventually, Calhoun agreed to a compromise that would lower the tariffs over time. Many historians think the failure of nullification led rather directly to secession.
Another person on the thread points out at this point that it was in fact Thomas Jefferson and James Madison who first advanced nullification.
George: I should have said re-invented. But don’t forget, most attendees – even Madison – at the Constitutional Convention, strongly supported the power of federal judges to determine constitutionalty of a federal law, and that the US Supreme Court should be the arbiter in disputes between federal and state governments. As you know, those federal courts have always ruled that states have no right to ignore or subvert federal laws they don’t like.
Note the slight of hand George uses. He goes from unconstitutional acts to “federal laws they don’t like.”
Me: Nullification did lead to secession. The first item listed in the S.C. Declaration of Causes was northern nullification of Fugitive Slave Acts. A good thing in my view. Jefferson Davis specifically condemned the principle.
I find it interesting that you accurately note that the “nullification crisis” led to tariff reduction and then call it a failure.
As for Madison, he did not support Calhoun’s version of nullification. It encompassed a whole procedure he concocted and insisted bound every state. But even in his criticism of Calhoun’s nullification, Madison asserted the natural right of nullification. It is in fact implicit in the intended structure of the government created by the Constitution. Madison asserted the state’s right to judge the constitutionality of an act.
“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.”
Madison supported a federal veto over all state laws in the Constitutional Convention as well. Those pushing for a strong centralized government didn’t get it. So invoking what so-and-so wanted at the Convention carries about zero weight.
George: Article III is obviously the constitutional provision to allow Congress to establish “the one supreme court” and other courts of the federal system, which than commenced with passage of the Judiciary Act of 1789. Without knowing much judiciary history, though, I assume the authority came from Congress? I also believe that nullification and secession were closely related, in terms of the strains that eventually resulted in secession, after frustration with earlier nullification efforts.
And, for the record, I think states disagreeing with federal laws should fight them in court (as is happening with the health reform law), not just ignore them.
Me: The existence of the Supreme Court doesn’t make it the sole arbiter of the constitutionality of an act. Follow Madison’s logic. It makes no sense to say the federal government gets to determine the extent of its own power. It’s nonsensical. As I’ve pointed out before, it’s like making a Clemson player the referee in a game between the Tigers and Gamecocks. If the states created the federal government, it logically follows that the states retain the authority to judge the extent of federal power. The Supreme Court has the authority to judge cases. Nowhere does it grant it the sole authority to judge a dispute between the states and the federal government in terms of the extent of its power.
George: The first clause of Section 2 of Article III makes it pretty clear, I think: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; … ” Favoring the notions of Montesquieu, the framers of our Constitution carefully separated the powers of the three branches, creating the checks and balances that generally work rather well.
Yikes…worked rather well? Wow.
Me: Key word – “cases.” Yes, the SCOTUS certainly has the power of judicial review. But no place does the Constitution give the federal government SOLE power to determine the constitutionality of an act. In fact, its rulings really only apply to a given case.
Again, consider the logic. States as sovereign entities delegate limited enumerated powers to their agent – the federal government. How can you then argue that the created gets to tell the creator the extent of its own power? It is nonsensical. The idea that the states must blindly follow the Supreme Court no matter what they say goes against the very structure the ratifiers approved. What happens when all three branches conspire to usurp power rightly belonging to the states and the people? We all just sit down and shut up and deal with it? No thanks. And the system has worked rather well??? Really? From around 1936 to the mid-90s, the SCOTUS never once declared a federal act unconstitutional. Are you going to tell me that Congress – the President – have never usurped authority in all of those years?? Really??? I could fill pages with unconstitutional acts. Yes, Brilliant George! We’ll count on the Supreme Court (federal government) with justices appointed by the president (federal government) and approved by the Senate (federal government) to limit the power of Congress (federal government) and the president (federal government.) Let me know how that works out for you.
At this point – George is beat. He apparently knows it. He bows out – quite ungraciously.
George: Mike, the USA is working out very well for me, thank you. Of course, you could fill pages with what YOU think are unconstitutional laws, I could write a substantial list of federal (and state, and local) laws I don’t like, as well. At least the constitution guarantees your right to complain about it and to worry out loud about fanciful conspiracies between the three branches. My concern right now is that two of the branches don’t conspire enough. Peace and doughnuts.
So, there you have it. Trillions in debt, TSA groping and peeking, endless war, Patriot Act spying, government mandated health care, the prospect of indefinite detention without due process, thousands of minorities locked up in an unconstitutional “war on drugs,” mandates, rules, regulations – and did I mention trillions in debt? That’s working out well for old George?
Wow. I’d hate to see what it looks like if things started working out poorly.
But don’t worry – George has it all under control. Just make way for more federal collaboration!
Yeah! That’s the ticket!!
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.
If you enjoyed this post:
Click Here to Get the Free Tenth Amendment Center Newsletter,