The legality of nullification

A frequent commenter to the Ohio Republic blog, Robert Barga, brings up an interesting objection to nullification in his comment on “Health Care Ruling, Victory or Trojan Horse?” (Feb. 1). Mr. Barga, who is an Ohio resident studying law in Connecticut, writes:

Here’s the thing, I think that the court will find that this is an allowed action on Congress. If growing your own wheat for your own use is interstate commerce, then healthcare clearly is (right or wrong, this is how i see the court ruling)

Furthermore, I don’t really see how nulification could work. While an argument over the right of it is interesting, the court has made it clear that the state’s dont have the right to do that (see several cases prior to the 1860s, most after are clear cause of that war thingy).

Here is my response:

You are looking at nullification from the perspective of the American legal system and normal legal procedure. From that perspective, you are correct; and there are many reasons why a court, especially a federal court, would not want to uphold the right of nullification.

Nullification respects the rule of law, but is an extraordinary legal procedure. The Constitutional Convention itself is an example of a situation which respected the rule of law, but which was outside the legal system as it was understood at the time. You will recall from history that the legal process in 1787 would only admit of amendments to the Articles of Confederation.

I suggest that there is a continuum: Normal legal process on one end, followed by nullification and secession, with the right of revolution on the other end. Nullification is a state’s recourse when the court system has persistently failed to consider the state’s Constitutional rights. If nullification persistently fails, then the state may proceed to declare its independence. And God help us all if we have to resort to the right of revolution (as witnessed by recent events in Tunisia and Egypt). Nullification and secession respect the rule of law, by following accepted legislative and electoral procedures. Revolution is completely outside the law, and should only be resorted to in the most desperate circumstances.

To completely reject nullification and secession as acceptable options is to say that the states, as states, have no rights not granted to them by the federal government. This is completely contrary to what the Founding Fathers intended.

I wish we could turn this thing around by electing a more libertarian Congress and President, who would appoint more libertarian judges. But the experience of the last 80 years has shown that our political system is so corrupted that we cannot depend on the normal legal process to make the necessary changes.

Nullification and secession are safety valves that in this country should ensure that revolution will not be necessary.

I might add, in response to his comment about “the war thingy,” that war itself is outside the rule of law, so I cannot understand why anyone would use it as a legal precedent; even though many writers do exactly that with the War of 1861.