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January 22, 2011

Nullification Rises Again

I had this story in my twitter news brief on Friday, but maybe it bears some more discussion. It seems some state legislatures are mulling "nullification" bills targeted at ObamaCare.

Nullification is a long-discredited, but persistent idea that keeps popping up from disgruntled state legislatures. Proponents claim that state legislatures can invalidate federal laws that they deem unconstitutional. The idea is that states, as sovereigns in their own right who joined together to make the United States, are the ultimate arbiters of the meaning of the U.S. Constitution and not the Supreme Court.

The theory was first championed by then-Vice President Thomas Jefferson against the Federalists, led by President John Adams. Jefferson and James Madison attempted to nullify the Alien and Sedition Acts in Kentucky and Virginia. Their attempt was sharply condemned by several other states. Keep in mind that this was before Marbury v. Madison, so the idea that the Supreme Court would review the constitutionality of acts of Congress hadn't been established yet.

The doctrine came up again in 1832 when South Carolina declared unconstitutional and unenforceable in the state a series of federal tariffs signed into law four years earlier by President John Quincy Adams . The state legislature began military preparations to resist federal enforcement and the federal government responded by passing the United States Force Bill, which was essentially a declaration of war. The Force Bill authorized the seizure of persons and property to enforce the tariff and specifically authorized capture of ports and harbors.

It was a different time back then. Here was President Andrew Jackson's message on South Carolina's nullification ordinance: "[P]lease give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach." Before it could come to military action, South Carolina and Congress worked out a compromise tariff and South Carolina repealed its nullification law.

Of course nullification featured prominently in the national dispute over slavery leading up to the Civil War. The free states would frequently purport to nullify pro-slavery federal laws. The Supreme Court held that these attempts (which were made by state legislatures as well as state courts) did not nullify federal law.

The shoe was on the other foot in the 1950s, when nullification rose again, this time among southern states seeking to ignore Brown v. Board of Education. Of course the Supreme Court shot that down too and, ultimately, the states were forced to comply.

Now some legislators are proposing it again in relation to the healthcare reform law. I understand the urge to overturn ObamaCare and have written many times why I believe it is unconstitutional. But that does not mean that nullification is constitutional. Two wrongs do not make a right. A process already exists, within the letter and spirit of the Constitution, to do away with unconstitutional laws of Congress. President Jackson had it right:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed

The U.S. Constitution is quite explicit that federal law and the U.S. Constitution shall be the supreme law of the land, and binding on the states. It neither authorizes nor implies state power to simply disregard federal laws with which they disagree.

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posted by Gabriel Malor at 06:59 PM

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