Some of the so-called “experts” who want you to believe that nullification is invalid because James Madison wrote what seems to be a vehement opposition to it in the 1830s are just uninformed. Others, are just plain liars.

Either way, they’re wrong.

Here’s the deal.

John Calhoun and South Carolina proposed a specific kind of nullification in response to the “Tariff of Abominations,” as it was called. Madison denounced that. He used some serious language to write against it. And he was correct. He repeatedly referred to what he was opposing as “Her” doctrine of Nullification, or South Carolina’s “peculiar doctrine” of nullification.

In other words, he was addressing – specifically – what people were asking him about, and that was the South Carolina proposal that they could invalidate a federal act and the rest of the country would have to assume they were correct unless they held a convention to override the single state.

I’m not going to spend more time on this – because that’s obviously not a federalism ideal. And I agree with Madison’s opposition to that style of nullification – primarily the idea that every other state has to auto-agree with the one nullifying.  That’s just not the case.

But, what’s most important about Madison’s “Notes on nullification” is the fact that he did indeed consider nullification, as Jefferson did, a proper remedy.

“The right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.”

Madison felt, in 1830 (when he was a bit more pragmatic very late in life), that nullification was only a remedy to “insupportable oppression.”

In 1798, Jefferson wrote that Nullification was “the rightful remedy” (not just A remedy):

every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits

So while Thomas Jefferson and James Madison didn’t agree with the exact point when nullification was to be used as a remedy, they both were quite clear that nullification is in fact a legitimate remedy.

Jefferson was also quite adamant that nullification wasn’t akin to waging a war of revolution, as some would say, but in fact nullification would be the tool which actually prevented bloody civil war:

that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government

Back to Madison.

Let’s say you agree with his advice on nullification, that it is a tool to respond to “insupportable oppression” only, and think Jefferson’s strategy of using nullification against “all assumptions of power” that are outside the Constitution – is a bit too strong.  Well, that’s ok. As long as you don’t deny that both of these Founders considered nullification legitimate.

If you do take Madison’s more pragmatic approach, however, you’d have to take the position that what you experience today isn’t “insupportable oppression.”

If mandates, the federal reserve, unconstitutional foreign policy, gun control, and many of the other things these government-criminals do (like fast and furious, for example) don’t count as “insupportable oppression,” I’m not sure what does.

I’m curious what you feel qualifies, though.

Michael Boldin

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