Nullification. Tenth Amendment.
Opponents react hysterically to these words with name calling – racist, secession, Civil War, slavery, confederacy.
Clever strategy – conjuring up such emotionally-charged words from a dark period in our history so that average Americans cringe when they hear nullification or tenth amendment – shutting down any healthy debate.
However, it is interesting that during these frenzied rants, opponents never seem to mention how nullification helped protect slaves against the federal government when it passed laws to hunt down and return those who were lucky enough to escape slavery in the South.
That’s right. Throughout the 1850s, nearly every northern state nullified a federal law known as the Fugitive Slave Act of 1850. Under this law, every state was required to return any fugitive slave found within its boundaries on the mere word of any white person, and any evidence to the contrary presented by the slave was prohibited. In other words, the slave received absolutely no due process of law.
Most northern states vehemently disagreed with this federal law, both morally and constitutionally. On moral grounds, they disagreed with sending people into bondage. On constitutional grounds, these northern states viewed the Act in direct violation of the Fifth Amendment which guarantees due process of law. Moreover, the northern states asserted it was the obligation of the states under the Tenth Amendment, not Congress, to create a process for fugitive slave rendition.
Rather than secede from the union, these states sought a more moderate approach. Nullification of the Fugitive Slave Act of 1850 was the answer. So, most northern states nullified the federal law in their respective state by passing personal liberty laws. They refused to help federal officials enforce the law.
Interestingly, opponents of nullification also never seem to mention that Jefferson Davis – President of the Confederacy – opposed nullification by the northern states. He also made it clear in his Farewell Address to the Senate that nullification and secession are completely contrary to one another.
“Nullification and secession, so often confounded, are indeed, antagonistic principles. Nullification is a remedy which it is sought to apply within the Union, and against the agent of the States…”
Another condemnation of nullification refers to southern state’s attempts to nullify desegregation of schools in the 1960s. The language of nullification was used by southern states to condemn the civil rights acts. But just because nullification was used poorly in this instance, should we condemn the process from now until eternity as a check against an overreaching federal government? Should we ignore all of the good things nullification has been used for – like nullifying the Fugitive Slave Law and protecting the freedom of speech (Alien and Sedition Acts)? Think of it this way. A well-known pain reliever has been used for years and years to help with headaches and general pain relief. But in the 1980s, someone tainted it with cyanide. Six people ended up dead. So, should we get rid of this medication (and all other over-the-counter medications) because someone misused the drug for evil means? No. We acknowledged it was someone who did this, not the makers of it, placed safety measures, and moved on – still using the medication today for all of its beneficial purposes.
So why do opponents of nullification get so hysterical? Why do they want to shut down any discussion of nullification? Possibly, they do not want the American people to realize that the federal government was never intended to be one big blob of a monarchy – having absolutely no check on its power. Think about it – why would people who just fought a war to get rid of a monarchy (with a rubber stamp Parliament) that determined the extent of its own power turn around and give that same power to a body called the federal government?
Instead, the federal government’s powers are limited to approximately 30 items (depending on how you count them) which have been delegated as set forth in the U.S. Constitution. Enumerated Powers And the tenth amendment was placed into the Bill of Rights to reiterate that the federal government’s powers are limited to these things and everything else belongs to the states or the people – the ones who set it up in the first place.
Many suggest that the U.S. Supreme Court has ruled on nullification. But to suggest that the U.S. Supreme Court – a branch of the federal government – is the sole and final arbiter of the federal government’s own powers demonstrates a lack of critical thinking skills – not to mention historical fact. Those who argue the U.S. Supreme Court has the sole power to determine constitutionality of federal law seem to ignore or misunderstand that when the federal law is outside of those 30 powers in the first place, it is unconstitutional. And it is the right and duty of each state to consider nullification of an unconstitutional federal law within its borders. Today, many states have already taken steps to do so. For example, several states are in the process of nullifying federal gun laws; other states are nullifying warrantless spying on American citizens; still others are proceeding to nullify federal marijuana laws. This is how our republic was intended to work.
So America, you have a choice: (1) continue to allow yourselves to be deceived by the hysteria (which will result in continued frustration with an ever-growing, overreaching federal government because it will not restrain itself); or (2) choose to educate yourselves on the tenth amendment and nullification to consider it as a viable alternative.