A recent article on The Center for Media and Democracy’s PR Watch website, describes current nullification efforts, and provides a brief history of the principle of nullification.  The article, by Brendan Fischer, titled, Will GOP Governors Really try ‘Nullifying’ Obamacare? blames current nullification efforts on states with  Republican governors.  The article also provides the typical “nullification was used to protect slavery” argument.

Both claims are false.

States with Democratic governors are nullifying as well, and nullification was never used to protect slavery.

There are several nullification efforts happening in the United States.  Despite the article’s claims, states with Democratic governors are leading the nullification charge as well. Here’s a few:

  • Montana’s referendum 122 nullifies Obamacare by prohibiting “the state or federal government from mandating the purchase of health insurance.”
  • Colorado’s Amendment 64 nullifies federal marijuana possession laws by allowing” the personal use and regulation of marijuana.”
  • Washington State’s Initiative 502 nullifies federal marijuana possession laws by ending marijuana prohibition.
  • Massachusetts Question 3 nullifies federal marijuana possession laws by “eliminating state criminal and civil penalties related to the medical use of marijuana, allowing patients meeting certain conditions to obtain marijuana produced and distributed by new state-regulated centers or, in specific hardship cases, to grow marijuana for their own use.”
  • Missouri’s Healthcare Exchange Question requires state exchanges to be set up only by a vote of citizens or the state legislature.  Governor Jay Nixon (D-MO) had this to say, “Let me be clear that a federally facilitated exchange is not the ideal approach. Regulating the insurance market is a power best left in the hands of the states.”

Additionally, Governor Jerry Brown (D-CA), agrees the federal government must respect the right’s of the states, when he said, “It’s time for the Justice Department to recognize the sovereignty of the states.”

Fischer’s article continues to make false claims of the history of nullification.  It makes the very predictable assertion that nullification was used to protect slavery in the South.  Although the article briefly mentions nullification as a tool by the North to end federal fugitive slave laws, it fails to provide an explanation of how nullification was used by Southerners to protect slavery.  That’s because it wasn’t.  Before the Civil War, there were zero federal laws prohibiting slavery, so what exactly was the South trying to nullify?

Nullification was first termed by Thomas Jefferson, in his Kentucky Resolution of 1798.  The resolution was created in response to the unconstitutional federal Alien and Sedition Acts.  These acts were a clear violation of the First Amendment.  Nullification allows the states to protect the rights of citizens from federal encroachment.

“But, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that 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.”

Although the Supreme Court has declared nullification unconstitutional, it is a moot point.  With the issue being who should decide the constitutionality of laws, it’s hard to see the logic behind the federal government making the final judgment on the topic.  If the federal government is allowed to decide the extent of their powers, the sky is the limit.

Matthew Renquist

The 10th Amendment

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