John C. Calhoun is back with a vengeance, warming the hearts of Old South romantics while chilling the blood of modern liberals. He conjures up images both appealing and appalling: old-fashioned patriotism, partisan demagoguery, genuine fears, love of liberty. The modern Tea Party movement owes much of its inspiration to the Ron Paul campaign, the only national effort in recent years to mention the Tenth Amendment. Yet inevitably talk of nullification evokes memories of Calhoun and the Lost Cause—even though the roots of the idea run much deeper.
The re-emergence of nullification—the repudiation or ignoring of a federal law by a state government—poses an interesting challenge to the power of the federal government and its monopoly on constitutional interpretation.
In recent decades, the first organized attempt came from the Left and libertarian Right’s advocacy of medical marijuana. The movement achieved success in California in 1996 with passage of Proposition 215—a direct affront to federal anti-drug laws—and has since spread to 13 other states. But in 2005, the U.S. Supreme Court ruled in Gonzales v. Raich that the Constitution’s commerce clause gives the federal government the right to criminalize marijuana. This trumping of states’ rights was supported by George W. Bush, Dick Cheney, John Ashcroft, and Alberto Gonzales as plaintiffs, and was advanced by Justice Antonin Scalia. In addition to being joined by three of the court’s Republican justices, Scalia allied with two liberals in declaring that Angel Raich, a woman with a brain tumor, substantially affected interstate commerce when she grew a plant in her backyard and used it to alleviate her own suffering.
To his credit, Clarence Thomas dissented, writing, “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’” He was referencing Federalist 45. Thomas further invoked the principle of original intent by noting, “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”
Chief Justice William Rehnquist also dissented. Similarly, the attorneys general of Alabama, Mississippi, and Louisiana filed an amicus curiae brief supporting the defendant on states’ rights grounds. The Deep South is not a hotbed of NORML members, but it does have a longstanding suspicion of federal usurpation of state prerogatives.
Although the Controlled Substances Act was deemed superior to the Tenth Amendment, the Obama administration has backed away from strict enforcement in clear cases of medical use in legalized states. De facto nullification has won a partial victory. But it is likely that the Justice Department’s stance has more to do with politics than principle. Barack Obama is a former professor of constitutional law, but he is not known as a friend of states’ rights.
Nullification has been gaining popularity in states North, South, and West. One week before Obama assumed office, Joel Boniek introduced the Montana Firearms Freedom Act into the state legislature. The freshman Republican legislator previously affiliated with the Constitution Party was a veteran of Paul’s 2008 campaign. His legislation challenged ATF authority, declaring federal firearms laws within the state to be null and void on the basis of the Second, Ninth, and Tenth Amendments. It was written and advanced by two other Paul admirers between 2004 and 2007, while Bush was president, but was twice defeated by the state senate. It eventually passed both houses and was signed into law by Gov. Brian Schweitzer, a Democrat. Firearms Freedom Acts have since been adopted by Tennessee, Utah, Wyoming, Arizona, South Dakota, and Idaho, and are under consideration in 20 other states.
Another recent nullification effort concerns the Real ID Act of 2005, which sets national standards for state driver’s licenses. According to the law, Americans without federally sanctioned licenses would be denied access to commercial airlines and federal buildings. The regulations were to take effect in 2008, but resistance forced the deadline back—first to 2010 and then to 2011. Half of the states have approved resolutions or laws refusing to follow the federal requirements.
As with firearms law, opposition to Real ID is a bipartisan effort. Following the lead of their more consistent brethren in the Constitution and Libertarian Parties, Republicans have been most vocal in objecting, but many Democrats have come aboard. In 2007, a de facto nullification resolution in Maine was approved by the state house 137-4 and by the state senate 34-0. The Utah legislature and Missouri senate also unanimously refused to co-operate with Real ID.
Governor Schweitzer, a strong opponent of Real ID, is former chairman of the Democratic Governors Association. Calling the law a “harebrained scheme” when interviewed by NPR in 2008, he ended with this verbal blast: “There’s nothing in the Constitution that tells Homeland Security that they’re supposed to do this or they must do this. … This is another bluff by some bureaucrats in Washington, D.C., and thank God, we live a long ways from Washington, D.C.” Former Gov. Tim Kaine, who signed Virginia’s anti-Real ID bill into law last year, is today the chairman of the Democratic National Committee.
Now the recently enacted healthcare reform stands to become the subject of nullification efforts. There could be “mass noncompliance with the law without any consequences,” say Lisa Lambert and Karen Pierog of Reuters news service. Immediately after President Obama signed the legislation, 13 state attorneys general filed a lawsuit to block implementation on constitutional grounds. Five more have since joined in. (A collective suit represents Florida and 17 other states. Virginia has staked out a separate legal challenge.)
Unlike the medicinal marijuana, firearms freedom, and anti-Real ID endeavors, the anti-healthcare reform effort is lopsidedly partisan. Opposition is almost entirely Republican, which may explain why Fox News is promoting this cause while remaining silent on the others. Another difference is that resistance to Obamacare is being carried out through lawsuits in federal courts by a handful of top state-level politicians, rather than by declarations and defiance by the people and their legislators en masse.
Examples of direct nullification attempts are still rare. One is the recently adopted Virginia Health Care Freedom Act, which prevents the federal government from requiring mandatory insurance coverage. In 2009, a state sovereignty resolution overwhelmingly passed both chambers of the Tennessee legislature. Although relatively toothless, it did mark the first time a state sovereignty resolution had been signed by a governor. Alaska, North Dakota, South Dakota, Idaho, and Oklahoma have passed similar resolutions.
The author of the Tennessee resolution, state Rep. Susan Lynn, had healthcare reform in mind when she announced last December that she would introduce stronger legislation to declare null and void any federal law deemed unconstitutional by the state. Prospects of passage are not good—it’s one thing to pass a symbolic resolution, quite another to claim the power of nullification. Glen Casada, a leading conservative Republican in the state house, told a reporter, “Susan’s a sharp girl, but I don’t know. I didn’t realize states had that right to nullify specific laws passed by the federal government.”
Ignorance of nullification is not confined to the political class. With their focus on hot-button issues of immediate concern, few modern reformers are even aware of the historical context. But nullification has roots in an honorable tradition and a powerful legacy of curbing centralized power.
In 1798, the Kentucky and Virginia Resolutions were secretly written and advanced by Vice President Thomas Jefferson and his ally in the House of Representatives, James Madison, to encourage resistance to the Alien and Sedition Acts. Jefferson and Madison grounded their resolutions in the compact theory, which sees the Constitution as an agreement between the states. In the Kentucky Resolution, Jefferson asserted that state governments have a right to interpret the Constitution, arguing, “[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself.”
His original draft included an explicit mention of nullification: “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” The final version, enacted by the legislature, did not contain the word “nullification,” but ended with the same thought, calling on other states to join Kentucky in “declaring these acts void and of no force.”
The Virginia Resolution, written by Madison, was guided through the legislature by John Taylor of Caroline. When powers not granted by the compact between the states are dangerously exercised by the federal government, Madison argued, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.” Always more conservative than Jefferson, Madison had the language declaring the Alien and Sedition Acts “void, and of no force or effect” removed from the final version approved by the legislature—but declaring the federal laws to be “unconstitutional” clearly implied nullification.
While the New England states rejected nullification in 1799, viewing it as a harbinger of insurrection and civil war, this bastion of Federalists changed its tune when President Jefferson pursued policies not to its liking eight years later. The state governments of Massachusetts, Connecticut, and Rhode Island threatened to ignore the Embargo Act of 1807 because of its perceived unconstitutionality.
The War of 1812 was also unpopular in New England, and states officially resisted federal authority to mobilize their militias and enforce a new embargo act. The assembly of Connecticut urged noncompliance as “a FREE SOVEREIGN and INDEPENDENT state.” In 1814, the General Court of Massachusetts invoked “the sovereignty reserved to the states,” opining, “Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.”
Toward the end of the war, radical “blue light” Federalists were calling for secession from the Union. Gov. Caleb Strong of Massachusetts began secret negotiations with the British government to effect a peace treaty with the state. Delegates from five New England states met for the Hartford Convention, which in addition to proposing constitutional amendments declared that the region had a duty to resist unconstitutional violations of state sovereignty.
Federalist opposition to political centralization during the War of 1812 was not completely opportunistic. The Constitution was a dramatic strengthening of the central government compared to the Articles of Confederation, but it still promised a federal system—not a unitary or consolidated one. The Supremacy Clause of the Constitution refers to the founding document and to federal laws and treaties as “the supreme Law of the Land.” Yet the Tenth Amendment provides that 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 federal balance between the Supremacy Clause and the Tenth Amendment was maintained as long as each level of government stuck to its constitutional areas of concern. But that equilibrium has shifted as federal power has intruded into areas reserved to the states. Beginning with the Marshall court in the early 19th century, with its invention of the non-constitutional power of judicial review and its creative use of constitutional loopholes, the judiciary facilitated this imbalance. By the early 1820s, it was clear that states’ rights were being largely ignored by all three branches of the federal government.
Unlike Thomas Jefferson, John C. Calhoun was not a democrat, egalitarian, or libertarian. Jefferson was motivated by concern for civil liberties and popular control of government. The South Carolinian Calhoun was primarily interested in protecting slave-based plantation society. In some ways reprising the role of Jefferson with the Kentucky Resolution, Calhoun secretly advocated nullification 30 years later. When the Tariff of Abominations was enacted by Congress in 1828, it became the highest tariff in U.S. history. Outrage swept the South, and Calhoun published an anonymous booklet, South Carolina Exposition and Protest, that touted nullification.
Incoming President Andrew Jackson was a Jeffersonian who supported states’ rights, but he also supported the Union and did not see the high tariff as a violation of the Constitution. The conflict between President Jackson and Vice President Calhoun would continue for four years. In 1832, South Carolina adopted the Ordinance of Nullification against a new tariff. In reaction, Congress authorized the president to use force to ensure federal law was executed in the states. South Carolina then nullified the Force Bill, but a lower, compromise tariff passed the same day. This allowed the state to rescind its nullification, thus averting an armed crisis.
More representative of the Jeffersonian tradition was use of nullification by the abolitionist movement. The Fugitive Slave Act of 1850 required the return of escaped slaves, even when they were caught in free states. The law sparked anti-slavery defiance of the federal government and its pro-slavery policies. Four years after passage, the Wisconsin Supreme Court declared the fugitive law unconstitutional. In 1859, the Wisconsin legislature quoted from Jefferson’s Kentucky Resolution in its proclamation condemning the “Bloodhound Law.”
Massachusetts also embraced nullification, making it illegal for state officials to enforce the fugitive law. Other northern states joined in enacting personal liberty laws that prevented federal officials from using local jails and hindered enforcement in other ways. The Underground Railroad itself was a large-scale example of civil disobedience against the federal government, a type of “personal nullification.”
Unfortunately, mid-20th-century examples of nullification tended to center around the sectional and racial politics associated with Calhoun, not the freedom and equality causes of Jefferson and the abolitionists. Nullification resolutions were adopted by Virginia and Florida in the 1950s after the Supreme Court outlawed segregation in the public schools. Martin Luther King Jr. pointed to the subject in his famous speech of 1963: “I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification … little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.” By their loud but opportunistic use of states’ rights as a tool to advance their economic and racial interests, generations of slaveowners and segregationists tainted the concept in the public mind.
But now nullification is back—under a much broader banner. Bestselling author Thomas Woods’s latest book, Nullification, will be released by Regnery this summer and promises to bring Jefferson’s ideas to a wide modern audience. A recent Rasmussen survey revealed that 59 percent of likely voters say that states should have the right to opt out of federal programs. Only 25 percent disagreed.
Predictably, when the masses begin to raise noisy objection to the status quo, the power structure reacts. Princeton historian Sean Wilentz’s nullification article in The New Republic is accompanied by a picture of Calhoun, who makes a more convenient bogeyman than Jefferson, still a favorite of liberals. Wilentz writes, “The idea was broached most vociferously in defense of the slave South by John C. Calhoun in the 1820s and ’30s, extended by the Confederate secessionists in the 1850s and ’60s, then forcefully reclaimed by militant segregationists in the 1950s and ’60s.” Nothing about tariffs or abolitionists defending runaway slaves. Nary a trace of marijuana or chemotherapy. The media demands a soundbite, and respectable liberals provide one: nullification is all about race hatred.
In the current political climate, the distinct message and heritage of nullification has been overshadowed by radicals drunk on tea. But to be effective in changing the role of government in our lives, it’s not enough to fear Barack Hussein Obama and call Democrats ugly names. If Tea Partiers and state sovereigntists are informed and honest, they will recognize that there is no substantive difference between Romneycare and Obamacare, between Republican posers and Democratic phonies. It’s a bipartisan racket of federal overreach, deficit spending, ungodly values, and imperial arrogance. Obama is not going to confiscate our guns because he has other concerns: he has to keep his Wall Street patrons happy. They don’t care if you own a semiautomatic or a water pistol, as long as the Federal Reserve and Treasury Department continue to cater to their every desire. Same with the military contractors vis-à-vis the Pentagon and State Department.
I live in the Heart of Dixie—Calhoun County, Alabama—and I can attest that bread and circuses have taken their toll on even the most patriotic and traditional among us. There is more enthusiasm for Nick Saban than Tom Jefferson. More folks are watching ’Bama than reading the Bill of Rights. More are trying to protect electronic bingo than freedom of speech.
We the People are angry at Washington, but we don’t understand how the system works and are too easily fooled by self-serving politicians and media puppeteers. They keep us ignorant while they tell us how to feel. Perhaps the first step is to turn off the television. Read. Look beyond rhetoric. Follow the money. Organize locally. Talk to your neighbors—even those with whom you disagree. We might find some common ground and useful ideas that will bring not just heat but light.
Jeff Taylor teaches political science at Jacksonville State University. He is the author of Where Did the Party Go?: William Jennings Bryan, Hubert Humphrey, and the Jeffersonian Legacy.
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