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Nullification is Not a Principle for the Serious Tea Partier

Recent Ashbrook Scholar graduate, Michael Sabo, writes one of the most clear and concise explanations I have seen of why the doctrine of nullification has no part to play in any clear-eyed understanding of the principles that animate America.  Moreover, Sabo argues, it ought to be rejected by those who, in supporting the work of the Tea Party, understand themselves to be arguing for a restoration of America's founding principles. 

Nullification, far from being fundamental to the American Founding, is a principle at war with our Declaration of Independence and with the natural rights of individuals.  It holds individual states, rather than individual citizens, to be sovereign and it thereby diminishes the principle of consent that--in so many instances--has been violated by the workings of the modern administrative state and is the basis of Tea Party dissatisfaction with the administrative state.  If the Tea Party wants to hold the separate states to be sovereign, the problem is that they will be sovereign over (and, often, against) individuals.  This principle does not protect individual rights but it does empower factions.  In combating the evil of the modern administrative state, this seems a thin and uninspiring argument.  To suggest that the states are more sovereign than THE state begs the question:  Why?  Upon what principle of justice?  What makes the various states and their interests more important than the general welfare?  In addition to simply being wrong, this argument is unpersuasive in the modern context.   The problem of centralized power in "the state" is not that it violates the rights of the various states so much as that, in pulling away authority and the management of local affairs from smaller communities, the temptation to violate individual rights is much less effectively countered. 
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Discussions - 14 Comments

Thank you Julie for your kind words!

The argument for nullification has been gaining ground recently--especially with books such as Thomas Woods' Nullification being popular with Tea Partiers and conservatives at large.

I kind of doubt Rick Santelli was the genesis of the tea party.

What is this argument for Nullification Mike?

I have heard of Jury Nullification in regards the 6th ammendment.

In terms of the 10th ammendment, you basically have anti-commandering, but congress uses its spending powers, and cash strapped states rarely say no.

To complicate matters states have constitutionalized portions of the bill of rights, in Ohio for example 1.14 is the 4th ammendment.

In addition the courts have ruled the due process clause of the 14th ammendment incorporates say the 4th ammendment against the states, see Mapp v. Ohio (1961).

The Ohio Supreme Court cannot nullify the 4th ammendment, but it could "nullify" the 4th ammendment (from the perspective of the prosecutor) by deciding the question solely on state constitutional grounds under 1.14. I don't think Ohio has actually done this, but there are circumstances were you can have more due process rights under state law. You can never have less so the lack of reciprocity in this regard does not favor the State/prosecutor.

The key grounds for Nullification, come out of jury nulification, and the guarantee of a fair trial.
Regardless of what the legistlature, the supreme court of either Ohio or the US says, the people(jury) must consent to the reasonableness of the laws. If they do not consent they can acquit. So it is at least arguable that nullification is part of the 6th ammendment and our constitution.

I am not so sure the modern adminstrative state is really as evil as it is cracked up to be, and I would also suggest that something like administrative law and jury nullification was at play in the decision that led to to the abolition of slavery.

There was this General named Butler, there were three run away slaves, the law was clear, the articulated policy of president Lincoln was clear "“I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists,” +“I believe I have no lawful right to do so, and I have no inclination to do so.” But if General Butler sent the slaves back they would be put to work fighting him. Also General Butler's men were all idealistic New England recruits of an abolitionist bent who no doubt believed slavery to be a violation of natural law, and the principles of the declaration.

I could go on, but I am more or less sumarizing this article:

Whether nullification is consistent with the constituion depends upon what the meanin of ratification was. My argument is that it was done by special conventions, rather than state governments, in order to make the U.S. Constitution a compact among the American people as a whole.
But the conventions were state-by-state. And in Federalist 39 Madison plays that up. If the constitution is a compact among states, there's more play in the system, regarding nullification. I don't think that argumnt is correct, but it's not absurd.

Does the U.S. have the right to ignore U.N. resolutions if we have not agreed to them? TI know we have the legal right to ignore international treaties we have not signed. The nullifiers claim that the U.S. is not a nation, and it is not clear that the we created a nation in 1776.

Exit question: What was the constitutional status if nullification under the Articles?

Julie has it right on nullification, which is incompatible with the rule of law and the rights of individual citizens. It is authorized neither by the Articles of Confederation nor the Constitution. The trouble with the Articles was lack of efficient enforcement and weak federal authority, which was no barrier to nullification. The ratification of the US Constitution by state conventions was denounced (rightly) by critics of the plan as bypassing state legislatures. It was intended to be authorized by the American people, not their state governments. There is, of course, no provision for nullification or secession in the Constitution, for it was meant to be as perpetual as the Articles explicitly were. As Madison argued in opposition to nullification in the 1830s, it takes the decision of all the states to nullify the Constitution, not one that in effect makes itself superior to the Constitution and all the states adhering to it.

According to the Declaration, the United States had full power to wage war, conclude peace, establish commerce and do any other acts which independent states may of right do. That the structure between 1776 and 1789 was not consistent with that authority does not disprove that the authority existed. Lincoln pointed to the Continental Congress of 1774 as the first instance of federal authority. In his Inaugural Address, he called secession (the extreme form of nullification) anarchy. Isn't that enought for sensible conservatives to reject nullification, particularly since have gained electoral victories, and more are likely?

Nullification is absolutely compatible with the confederated republican government created by the Constitution. The compact theory of the union, which is the only theory compatible with the Declaration of Independence, holds that the sovereign States created a voluntary union via the Constitution. As such the States, as the real parties to the Constitution, are the true arbiters of the powers of the federal government, which is an entity that does not exist independently of State approval. When the subservient federal government abrogates its authority and breaches its constitutional boundaries, what recourse is there? A lawsuit in a court created by the same Constitution being violated? The conflict of interest in such a scenario should be perfectly obvious.

No, the States retain the authority to determine the constitutionality of the actions of the federal government independent of the entity it created (including its judiciary). The purpose of nullification, THE rightful remedy (according to the author of the Declaration of Independence) when the federal government violates the Constitution, is to secure the liberties of the people. Just as the only legitimate function of the federal government is to secure the unalienable rights of the people, so too it is with the States.

The Supremacy Clause confers supremacy to the federal government only with respect to laws written "in pursuance of" the Constitution. It naturally flows that according to the Tenth Amendment the States retain the power to nullify any action of the federal government that is not in pursuance of the Constitution. It is their obligation to do so according to the Declaration of Independence. And they do not need permission by a federal court to do so.

Richard. It depends upon whether "The United States in General Congress Assembled" was a government or a Congress of equals, retaining their sovereignty. The Declaration says, "they have full power . . ." not "it has full power."

At the end, the Declaration called the U.S. "free and independent states," which could imply that full sovereignty belonged to the states, except for that bit which they had surrendered to the Union--which had to do with foreign affairs and affairs crossing state lines.

How did the people give authority to the Union before they ratified the U.S. Constitution?

In short, in we need to ask what was the constitutional status of the state governments on July 2, 1776, when Congress voted for independence? What was the constitutional status of the Union then? Why?

What makes a nation a nation? Saying Lincoln said so, is an appeal to authority, not an argument.

If you're suggestion that the creation of the U.S. was a mystical act, beyond reason, then we're back in the gloomy age of superstition.

The Articles claim "each state retains its sovereignty . . .which is not expressly delegated," and it states, "the said states hereby severally enter into a firm league of friendship with each other for their common defence . . "

The need to each state to consent to any treaty implies that it was a union of states, and no more, until that was changed by the federal constitution.

Under the Articles, it seems fairly clear that an individual state could judge whether Congress had gone beyond its legitimate authority.

I'll stick with ratification by the people as the strongest argument that states surrendered their sovereignty.

P.S. It does not naturally follow that states have the right to judge when the U.S. government has gone beyond the powers delegated to it by the people.

Correction. 9 states were required for issues of peace and war. The larger point stands. The states agreed to that as a rule for the Confederacy.
Until ratification, there's a good argument that the U.S. was more like NATO or the UN than a nation.

Of course, the Articles were an attempt to reconcile contraditions, which was impossible. Hence, the nation faced the choice of dismemberment by internal weaknesses or supercession by a national government. If the goal was union, the Articles were nothing more than a good faith attempt to achieve it; but they were an attempt to achieve a goal that became the basis for their replacement by the Constitution. No one doubts that the Articles made a confederacy; the only issue was whether that system made a firm union possible, which it did not.

The whole argument for the Constitution was that it corrected the defects of the Articles, which is another way of saying that confederacy was a failed form. When Madison in Federalist 39 looks at the national and federal features of the Constitution, he places the greatest weight on the operation of the government, which is national for the most part. He is aware that the work is incomplete but bets on its everyday workings to put the issue to rest. It did not, of course, and Madison and his friend Jefferson delayed the process with their state resolutions callling for interposition (Madison) and nullification (Jefferson). It took the Civil War to bury secessionist (the final stage of states' rights) anarchy. Lincoln was right to call it that, as he was right to stress the Union over the states, just as the authors of the Constitution did. That's not an argument from authority, but one on the merits.

Richard, is it correct then to say that the ideas of nullification Jefferson wrote of in the Kentucky Resolution are the same as nullification proposed by paleoconservatives like Thomas Woods? Is Woods correct in a very limited sense when he tries to tie nullification back to the Founding or, more appropriately, to Jefferson? I sometimes wonder if Jefferson or Madison were consistent on these questions concerning the nature of the Union.

Madison was restrained, Jefferson was not; but both were defending liberty rather than slavery, which makes all the difference. The election of 1800 should have put the nullification doctrine to rest, but it didn't. Jefferson, remember, had no part in framing the Constitution and had serious objections to it: too much executive power, too little concern for political and legal rights. Madison later distinguished his views from Calhoun's in the 1830s, but Jefferson never recanted. In any case, the Constitution, which includes its supporters, remains the supreme law of the land and an object of reverence. That's possible only if it is not deprived of its authority, a consequence of its foundations in natural rights. State sovereignty subordinates individual rights to the power of the government.

This is always were the libertarians go wrong -- any central government powerful enough to guarantee a panoply of individual rights will typically breach the levees of localism (our essential protection against tyranny). Nullification should be hard to accomplish, but it should always be a legal option. I think it is consistent with the Constitution as originally written.

Why is this so important? Well, right now we have half the country (the productive half) paying all the bills, but EVERYONE gets to vote (often for their own "cut" of the pie), This parasitism is a recipe for disaster (study the late Roman period), and nullification would be a good way for productive people to protect themselves.

Unfortunately, the Republic is nearly finished. What's left is necessary reconstitution, and nullification is one thing that might sober up some of these people.

The current nullification argument is about this sense of the moment and having made the choice of which side of history and political philosophy you want to be on, trying to figure out how to get there.

State sovereignty may subordinate individual rights to government. It depends on how the state and its "statesmen" handle the matter, doesn't it? Madison's observation was that they handled it badly under the Articles of Confederation and needed a strong curb. Certainly some states, California, for example, would handle it badly today. However, does the federal government as currently constituted do a better job of protecting individual rights? I don't think so.

Hence people call for nullification if they happen to have a state government that would do a better job of that sort of protection. (Or they think it would.) But whether that is true or not is up to the voters of any individual state and there I suggest we hit a practical problem. As an Ohioan, I cannot help but notice that state government changes its governing principles election by election and not even party allegiances bring consistency. I would love to blame the politicians, but the blame probably falls on a fickle electorate whose ideas of what life, liberty and the pursuit of happiness seems to change over all sorts of variables ncluding time.

But for the Tea Party, they are figuring out how to get back to America's first principles. I see hope in that, though a faint hope given the obstacles of popular culture and an education system that (by and large) either doesn't know or refuses to teach those first principles.

I find it ironic that your first paragraph mentions how Libertarians get it wrong, and your second paragraph calls for the formation of Galt's Gulch, somewhere out in Colorado no doubt.

The productive and the parasitic half? It seems to me that Ayn Rand and Atlas Shrugged was all about this sort of strike or "nullification".

I am not here to bash Ayn Rand, Article I section 8, clause 8, clearly protects copyright:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

I might suggest that our copyright laws have gone a bit far in protecting the "useful arts", and that not enough energy or legistlation has gone into protecting the work of Inventors(Patent).

It makes a bit of a difference for me that Ayn Rand produced a copyrighted work. Predictably also the release of Atlas Shrugged Part 1 was precipitated by the looming expiration of the liscense to make the movie.

Legally all of this is non-material. Except that perhaps belief that the federal government or the laws make no sense could contribute to "nullification" at the level of enforcement. So you have de facto nullification, that goes on all the time. Justice Holme's bad man of the law. These are 4th, 5th or 6th ammendment type questions.

If you want to bring the 10th ammendment in and a sort of libertarian fringe you bring up the right to grow pot in california, and the right to the DEA to enforce federal law under the commerce clause. Then you have Gonzales v. Raich. The Anti-Commandering of the 10th ammendment allows officers of California to ignore(nullify) federal law, by only enforceing state law/prop 215. If the federal government wants to enforce the law it will have to do it itself. So the DEA did, and the supreme court found that following Wickard v. Filburn the federal government had this authority under the commerce clause.

What if you are a california law enforcement official and you have a problem with prop 215? Is it nullification of california law to call the DEA and inform them of pot farm locations?

In terms of the above discussion on nullification and states rights, it seems to me that no individual actor, is granted standing, authority or capacity to decide the question.

"Nullification should be hard to accomplish, but it should always be a legal option. I think it is consistent with the Constitution as originally written."

Hum... On the scale here proposed Nullification is way above my pay grade.

But Nullification does exist as a micro phenomenon, and that is what I would discuss.

So I would say that Nullification is amazingly easy to accomplish, but never a legal option de jure. It is in tension with the Constitution as interpreted, but has something to do with the "Constitution" of the people, perhaps in the Aristotelian sense. Not to say that the founders were unaware of de jure vs. de facto. I would actually suggest that the living constitution is the de facto constitution, or the body of case law that is both de jure and de facto.

So within the realm of de facto, you have the operation of the micro phenomenon of Nullification of the de jure.

In de facto this means you can grow pot in Ohio as long as you are not caught, or forced to face de jure(both Ohio Law and Federal Law).

Nullification in terms of jury nullification, per the 6th amendment is simply the operation of the de facto(veto of the will of the people) upon the de jure(will of the courts, legistlature, founders).

You also have the de facto working against the de jure at all levels of the law.

Nullification as the operation, activity and imposition of de facto upon the de jure is a serious principle carte blanche, so it is certainly also a serious principle for a tea partier.

Once again, Lewis, your blathering is off-point. I am not advocating extreme localism, but rather two very simple principles. One, the more local the government, the more responsive it is to the electorate. Two, while localism is important, it is also the case that there are "economies of scale" that make centralization valuable and sometimes essential (e.g., military protection, very basic human liberties). Given these points, I think the Founders had it right when they invested so heavily in the States, making the Federal government a creature of those States (something that we've lost track of). If one State disrespects rights you think you should have, there are 49 others to choose from. If none of those States offer what you are looking for, there is always the deep blue of Canada or the deeper blue of western Europe. Bon voyage, mon ami!

The fact is, the Federal Government has become parasitical. It is time to try something new.

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