According to Graham, level DH4 – Counterargument – is, “the first form of convincing disagreement.” Graham also says that, “Forms up to this point can usually be ignored as proving nothing.”
I thought it might be fun to evaluate an old Heritage Foundation article about nullification in the context of this hierarchy. In this article, Dr. Matthew Spalding, from Heritage, tells us why he believes that the Idaho legislature was correct in 2011 when it rejected legislation which would have nullified Obamacare. If you haven’t read it, please go read Rejecting Nullification: Idaho Draws the Constitutional Line for context.
I have now gone through Dr. Spalding’s essay, paragraph by paragraph and sentence by sentence, removing the portions which were not arguments against nullification and evaluating the rest in the context of Graham’s heirarchy. Here is an evaluation of each of Spalding’s arguments.
Spalding, quoting the Idaho Senate President Pro Tempore: “I find no constitutional justification for the things that we are talking about here today,” said Senate President Pro Tempore Brent Hill.
My evaluation: By quoting Hill, Spalding is demonstrating Graham’s DH5 level of argument, Refutation. As to the substance of the quote, however, it is irrelevant whether Hill can find constitutional justification, because the states do not derive their powers or existence from the federal constitution. The purpose of the US Constitution was to define the powers of the central government. The states exercise numerous powers that are not described in the US Constitution. The police force and highway maintenance being obvious examples.
Spalding, quoting Andrew Jackson: President Andrew Jackson (himself a strong advocate of “states’ rights”) settled the matter: nullification is “incompatible with the existence of the Union, contradicted expressly be the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”
My evaluation: As above, Spalding’s argument is level DH5, refutation. His basis for refutation is a quote from President Andrew Jackson. Jackson’s quote, however, is a mere contradiction, level DH3. Jackson’s weak argument is not strengthened by being repeated. As a DH3 level argument, Jackson’s vacuous assertion can be ignored because it proves nothing.
Spalding: At the center of our system of government is the Constitution and 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, or the federal government, or the states for that matter. This principle of the rule of law dates back at least to the Magna Carta, and was the centerpiece of American constitutional thinking.
My evaluation: This is not actually an argument against nullification. In fact, I agree with every word. I would just point out that the Tenth Amendment is part of the Constitution, which Spalding acknowledges here is the supreme law of the land.
Spalding: But there is no state nullification clause.
My evaluation: Another assertion at level DH3, Contradiction. This argument can be ignored, but it’s also easily refuted. First, the Constitution delegates powers to the federal government. It is entirely irrelevant whether or not there is a “state nullification clause”. States preexisted the Constitution and they don’t get their powers from it. Second, the Tenth Amendment is, in fact, a state nullification clause. It 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.
Spalding: The constitutional case against Obamacare can be made in detail and in general, but it does not trigger the nascent constitutional power of a state to unilaterally make it null and void.
My evaluation: Again, this is DH3, Contradiction, and can be ignored, but I would like to comment briefly: What, exactly, is the “nascent constitutional power of a state to unilaterally make it (Obamacare) null and void?” It almost seems like Spalding is saying that the state has a nascent constitutional power to make a federal arrogation null and void. It is not clear from his essay what would trigger that power.
Spalding: Jefferson did use the term “nullification” in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution—admittedly and of necessity outside the constitutional structure. Even so, as a practical matter, after declaring the offensive laws “void and of no force,” Kentucky only called on other states to “unite with this commonwealth in requesting their repeal” by Congress.
My evaluation: This is Spalding’s first claim that actually appears to be fairly strong — at first glance. This form of argument is DH4, or Counterargument – using the Kentucky Resolutions, an authoritative document, as his basis for argument. Spalding makes two claims here: 1.) nullification is an assertion of a natural right to revolution; 2.) The Kentucky Resolutions were really just asking for repeal of the Alien and Sedition Acts. Are they convincing?
As to claim 1:
Here’s what Jefferson actually proposed. In the nullification section, here are the actual claims that were made: a.) It stated the state’s commitment to preserve the union “it (Kentucky) is sincerely anxious for its (the union’s) preservation:”; b.) It stated Kentucky’s unwillingness to submit to undelegated powers; c.) It stated that abuse of delegated powers should be resolved by voting.; -and- d.) It stated that in the case of seizure of undelegated powers, nullification is the proper response: “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 Spalding is right that Jefferson sees nullification as a natural right, but Jefferson’s assertions [a.] and [c.] in the Kentucky Resolutions clearly indicate that Jefferson did not invoke nullification as part of some right to revolution. Jefferson was proposing nullification, but he was explicitly rejecting a revolution.
With regards to claim 2:
Again, this is hardly an argument, but note Spalding’s language here: “after declaring the offensive laws ‘void and of no force,’ Kentucky only…”.
What is it to declare a law “void and of no force”, if not nullification?
Spalding: Madison was much more tempered in the Virginia Resolution. His language does not speak of nullification or voiding laws, but the right of the states to “to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” By interposition, as he explained in his Report of 1800, Madison meant “expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.” That is, state actions meant to arouse public opposition, challenge federal actions and ultimately change the objectionable action.
My evaluation: This argument is level DH5, Refutation. As with the previous argument, by citing an authoritative document, it appears to be strong in form and substance. Unfortunately, however, Spalding’s quote is from an entirely different section of the Madison Report than the section where Madison discusses interposition. Here’s what that report actually says about interposition:
The resolution, having taken this view of the federal compact, proceeds to infer, “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
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.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
In short, while Spalding’s argument here is syntactically strong, it is weak in substance. Madison quite clearly did not mean what Spalding says he meant. The Madison quote in Spalding’s argument is entirely irrelevant to the interposition portion of the Virginia Resolution. The interposition portion of the report actually lends support to the idea of nullification.
Spalding: The important distinction between Madison’s idea of interposition and Calhoun’s theory of nullification should be kept clear and bright, and has practical application in today’s debates.
My evaluation: Now we’re back to the DH3 form of argument, another contradiction which can be ignored. Incidentally, it is also a “straw man”. No one is promoting Calhoun’s theory of nullification.
Spalding: Many of the options states are pursuing seem to fall within Madison’s categories of legitimate state action. The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius). A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act.
My evaluation: This is is another contradiction at level DH3, which we can ignore. Further, whether or not these things are nullification is entirely irrelevant as to whether nullification is a legitimate course of action. Also, when a state refuses to participate in a federal mandate, it’s not nullification?
The Tenth Amendment Center’s definition for nullification is:
Any act or set of acts which has as its end result a particular law being rendered null, void, or unenforceable in a specific area.
Refusing a federal mandate, quite clearly, fits into that definition.
That is it – the end of Spalding’s arguments against nullification. In form, he gives us four unfounded contradictory assertions, at Graham’s level DH3, one counterargument at level DH4 – founded on Jefferson’s draft of the Kentucky Resolution, and three refutations at level DH5 – one based on Madison’s report of 1800 and two based on quotes of verbal arguments.
Logically, the DH3 arguments can be immediately ignored, because they prove nothing. However, several of those were also easily discredited. When we look at the actual text of what Jefferson proposed to the Kentucky Legislature, the level DH4 argument falls apart, and when we look carefully at the citations used for the DH5 arguments, those fall apart as inaccurate (Madison), unfounded (Jackson), or irrelevant (Hill).
Not surprisingly, then, Dr. Spalding’s arguments against nullification in his essay are entirely unpersuasive.
This article first appeared at the Pennsylvania Tenth Amendment Center.
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