Understanding Nullification

cross-posted from the Maine Tenth Amendment Center

When nullification is discussed, there is a misconception that never seems to go away: why the anarchy? Nullification and the Tenth Amendment is not a topic discussed often. States’ Rights has been discussed by Mitt Romney and his supporters when defending the Massachusetts healthcare law, a controversial program often compared to Democratic President Barack Obama’s law. Newt Gingrich has begun using the message, along with the libertarian topic “End The Fed” often associated with Congressman Ron Paul. Congressman Paul is one of only two candidates for the Republican Presidential Nomination (the other being former New Mexico Governor Gary Johnson) who have actually voiced their support for nullification. That is it.

Conservatives and liberals have both often refuted the idea of nullification, claiming it would lead to lawlessness and anarchy. Some libertarians have even dismissed the idea as a fascinating political theory, but something with no actual grounding in reality.

Now odds are, if you’ve been following the Tenth Amendment Center or authors such as Thomas Woods or Kevin Gutzman, you’ve heard about the idea and know the history lesson associated with it. If you haven’t, then some links at the end of this article will provide you with some background on the topic. This will not be repeated; the aim of the article is to understand nullification, not justify it.

Anarchy is often defined as the absence of government and law, where individuals enjoy complete freedom. The image often associated with it is chaos and disorder, with crime at out-of-control levels. Anarchists often reject this image and offer a more positive, utopian world. Both are extremes in the debate and are probably wrong. But the topic here is not anarchy, that is a debate for another day or time.

Nullification is the rejection of unconstitutional Federal laws by the States (it has since come to include towns, as a few Maine towns have passed Food Sovereignty Ordinances nullifying laws that interfere with local commerce). What is and what isn’t constitutional is very straight-forward.

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The powers “delegated to the United States by the Constitution” can be found in Article 1, Section 8, while the powers “prohibited by it to the States” are found in Article 1, Section 10. Beyond this, all else is “reserved to the States respectively, or to the people.”

Article 6, Clause 2, better known as the Supremacy Clause, states “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” The Constitution affirms itself as the supreme law of the land, as well as all constitutionally-compliant laws.

Thus, when you hear a “Tenther” voice their support for nullification, they are not advocating usurping legal authority of the U.S. Government, as delegated to it. They are instead reaffirming the rights of the States to exercise their legal authority under the Tenth Amendment. Whereas it is often suggested States’ Rights supporters are advancing lawlessness, they are actually expressing the highest respect for the law by restoring its proper constitutional balance.

NULLIFICATION RESOURCES:
“Reclaiming the Jeffersonian Tradition of Nullification” by Kevin R.C. Gutzman. Gutzman, Associate Professor of History at Western Connecticut State University, is the author of “Virginia’s American Revolution: From Dominion to Republic, 1176-1840” and “The Politically Incorrect Guide To The Constitution.” He also wrote “Who Killed The Constitution? The Fate of American Liberty from World War 1 to Barack Obama.” His new book, “James Madison and the Making Of America“, will be released in February 2012.

“State Nullification” by Thomas E. Woods, Jr. Woods, a Senior Fellow at the Ludwig von Mises Institute, is the author of eleven books, including “Rollback: Repealing Big Government Before the Coming Fiscal Collapse” and “Nullification: How to Resist Federal Tyranny in the 21st Century.”

“It’s Not About Political Parties. It’s About Liberty” by Michael Boldin. Boldin is the founder of the Tenth Amendment Center.

“METAC Testimony on LD 1172 (Intrastate Commerce Act)” by Chris Dixon. Dixon is the State Coordinator of the Maine Tenth Amendment Center.