GOP legislators in Missouri are on the verge of passing, over their governor’s veto, a law claiming to nullify all federal gun laws in that state and even making it a crime for federal agents to enforce them in Missouri. This, the August 28 New York Times reported, is “the far edge of a growing movement known as ‘nullification’ in which a state defies federal power.” Other GOP state lawmakers are making similar attempts, and the GOP nullification movement has targeted Obamacare. In South Carolina, for instance, one house of its legislature passed a law nullifying parts of Obamacare.
But the nullification movement is not new; and it is not legal.
Regarding an apparent attempt by Virginia and Kentucky to nullify certain federal laws in 1798, Patrick Henry received an alarming letter, which warned that if these nullification efforts were “systematically and pertinaciously pursued,” they would “dissolve the union or produce coercion.” (Source: Alexander Hamilton by Ron Chernow)
The author of the letter was George Washington.
Missouri GOP Director of Communications Matt Wills told the Times last week that nullification is “probably one of the best states’ rights issues that the country’s got going right now.”
And so it once was before.
American students who pay attention in history class usually first learn of nullification in connection with the 1832-33 Nullification Crisis led by John C Calhoun. Calhoun got South Carolina to nullify a federal law on a tariff. President Andrew Jackson sternly denounced South Carolina’s nullification attempt. At a gathering where both men were present, Jackson, glowering at Calhoun, then his vice president, said, “Our Federal Union–it must be preserved!” (Source: John Marshall: Definer of a Nation by Jean Edward Smith) Around the same time, responding to a letter from a South Carolinian, Jackson said “please give my compliments to my friends in South Carolina and say to them, that if a single drop of blood be shed there in opposition to the laws of the United States, I will hang the first man engaged in such treasonable conduct upon the first tree I can reach.” (Source: Andrew Jackson and the Course of American Democracy by Robert V. Remini)
James Madison was still alive at the time of the Nullification Crisis. Though he had been involved in drafting one of the resolutions in 1798 about which George Washington spoke, his thinking by that time had evolved thoroughly against nullification. As to the doctrine, the Father of the Constitution said, “there is not a shadow of countenance in the Constitution… for this preposterous and anarchical pretension.”?(Source: John Marshall: Definer of a Nation by Jean Edward Smith)
Saturday’s New York Times editorial condemning the looming Missouri action stated that nullification had been illegal “at least since the Civil War.”
Actually, it has been unconstitutional since the very ratification of the Constitution. The great Chief Justice John Marshall, who also was still alive at the time of the Nullification Crisis, said at the time “the idea that a state may constitutionally nullify an Act of Congress is so extravagant in itself, and so repugnant to the existence of the Union…that I could with difficulty bring myself to believe that it was seriously entertained by any person.”?(Source: John Marshall: Definer of a Nation by Jean Edward Smith)
Calhoun’s attempted intellectual justification for nullification was based on the proposition that the Constitution was merely a “compact” between sovereign states and that, accordingly, these sovereign states were free to nullify laws repugnant to them. This compact theory also justified nullification’s even uglier cousin, secession.
Even before the Nullification Crisis, the idea of nullification had already been implicitly rejected by several major decisions of the U.S. Supreme Court (all of which are still very much the law of the land) under Chief Justice Marshall. These include, for instance, Fletcher v. Peck, 6 Cranch 87 (1810) (upholding the power of the Supreme Court to invalidate state laws) and Martin v. Hunter’s Lessee, 1 Wheaton 304 (1816) (upholding the right of the Supreme Court to overrule state courts and expressly rejecting the “compact” theory of the Constitution).
Even more fundamentally, as Missouri’s Democratic governor recently noted in his veto message, it violates the Supremacy Clause (Article VI of the Constitution), which makes federal law supreme over state law.
A compromise on the tariff issue brought the first Nullification Crisis to and end. Andrew Jackson, however, had no illusions concerning what the crisis had really been about: “The tariff was only a pretext, and disunion and southern confederacy the real object. The next pretext will be the negro, or slavery question.” (Source: American Lion: Andrew Jackson in the White House by Jon Meacham)
Jackson was right, of course. And in that connection it should be conceded, in fairness, that the doctrine of nullification is legal under one constitution: the constitution of the Confederacy. As already mentioned, nullification’s intellectual foundation was that the Constitution was a mere “compact” among sovereign states. The contrary argument is that authority the Constitution came from the people themselves, not the states. That the “compact” was blatantly fallacious is demonstrated by several facts. One of them is preamble to the Constitution, which famously begins with the words “WE THE PEOPLE…”–not “we the states.” Moreover, the Constitution provided that it was to be ratified not by the state governments themselves but rather by special conventions in each state organized only for the purpose of considering the ratification of the Constitution. Thus, the actual governing bodies of the thirteen states never weighed in on or were even consulted about the ratification of the Constitution.
The nullifiers, recognizing these problems, addressed them directly when drafting the constitution of the Confederacy. The preamble to that constitution states: “We the people of the Confederate states, each state acting in its own sovereign and independent character, in order to form a more permanent [not union but rather] federal government…” Thus, the Confederate constitution adopted the compact theory of itself and rejected the idea of a perpetual union. But in doing so their words put the lie to the alleged legitimacy of the doctrines of nullification and secession under the U.S. Constitution. Many of the seceding states–including Mississippi, Arkansas, North Carolina, Texas, Georgia, and Louisiana–in order to perpetuate the myth that the U.S. Constitution was a mere “compact,” expressly referred to it as a “compact” in their ordinances of secession.
So, these are the fellow travelers of today’s GOP: The Confederates–the rebels, the traitors.
Is it a mere coincidence that only upon the election of the first African American president that we are first presented with a new nullification crisis? Is it a coincidence that the election of President Obama was met almost immediately with two public suggestions by Texas Gov. Rick Perry that his fellow Texans were considering secession? Hardly. The racist underpinnings of the Tea Party, the “birther” movement, and the persistent internet-fed rumors that Obama is a Muslim–believed according to polls by a plurality of GOP voters–have been widely documented. Likewise documented are the efforts of most of the Republican-controlled states to take various actions to suppress the African American vote in their states and the action of their five allies on the present U.S. Supreme Court to facilitate that suppression by invalidating the most important provision of the Voting Rights Act, one of the key accomplishments of the Civil Rights movement.
The Party of Emancipation has, of course, come full circle. When the national Democratic Party, led by the Kennedy/Johnson administration, gave its strong support for the Civil Rights movement, the Republican Party reacted by going bottom fishing for racists with its famous “southern strategy” and were rewarded by winning seven of the ten presidential elections from 1968 through 2004. But now that the southern strategy is evidently no longer helpful in winning national elections, we again are confronted by the discredited doctrine of nullification and even talk of its illegal and odious cousin, secession.
Edited and published by CB.