Once upon a time, National Review brimmed with intellectually relevant conservative ideas. It stood athwart history and yelled stop, or so it was introduced. Post-William F. Buckley, Jr., it has become a dull sounding-board of the Republican Establishment. Take intern Nathaniel Botwinick’s fact deficient treatment of nullification (“The ACLU’s Double Standard,” National Review, May 10, 2012).

Botwinick serves up an easy indictment of the ACLU for supporting pet issues over a consistent constitutional theory. In the law we call this a “positional conflict”. Rallying for nullification against the National Defense Authorization Act but decrying it in defense of Obamacare does indeed raise the eyebrows of credibility. Fair enough.

But Botwinick digs one deep in the shins of James Madison and Thomas Jefferson with his ignorance of American constitutional history. Botwinick observes: “If nullification is allowed in any case, it creates a precedent that threatens to rob the federal government of its ability to enforce the basic rights that the Constitution provides.” That, in a nutshell, is the progressive revisionist story of our constitutional compact, and a viewpoint that Nancy Pelosi and Barack Obama would readily embrace.

But it turns American history on its head.

Our Founding Fathers envisioned a tightly leashed federal polity, circumscribed by enumerated powers with its ankles further tied by the Bill of Rights. Communist-era constitutions were in the business of providing so-called positive rights to its citizens: free healthcare, education and jobs. Ours is a republican charter among co-equal sovereigns which placed strict limits on the power of government to trample our natural rights. The U.S. Constitution no more provides these rights than it gives us the right to be born. That interns for putatively conservative opinion magazines get this confused is more than a little bit distressing.

Botwinick approvingly notes that the U.S. Supreme Court decided against nullification in 1809. That’s akin to allowing your son to judge whether his behavior merited a time out. The bias in both cases, we would expect, favors exoneration. As crisply noted in the Kentucky Resolutions of 1798, the National Government “was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.” From REAL ID to NDAA to marijuana laws, states are pushing back on unconstitutional overreach. A 5-4 vote overturning the Patient Protection and Affordable Care Act would be welcome break from Commerce Clause intemperance, but according to Madison and Jefferson, is constitutionally unnecessary. Nullification of extra-constitutional acts is the last recourse for states to avoid becoming mere municipalities of the National Government.

In 1955 Buckley launched National Review boldly proclaiming that middle-of-the-road politics were “politically, intellectually, and morally repugnant.” After endorsing the most moderate Republican on the ballot, and all but smearing the Tenther movement, the National Review sat its hiney plumb on the double yellow lines.

Benjamin Gross
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