Green Room

Nullification is Unconstitutional

posted at 9:44 pm on June 12, 2012 by

A few weeks ago, we had a lengthy conversation in Show-Me Daily’s comments about whether it would be constitutional for Missouri to nullify the Affordable Care Act (ObamaCare). Then last week, the Heartlander published a story on the “nullification” issue wherein I was quoted reiterating my concerns with such proposals. (For context, my Heartlander remarks were drawn from an interview I gave the publication in early May, before Missouri’s legislative session ended.)

Generally, I would let my prior remarks speak for themselves, but given the continuing interest in the topic, I think it is worthwhile to revisit the issue at least one more time.

Is there a constitutional right for states to nullify federal laws? The answer is “No.” As the Heritage Foundation notes, the nullification question was decided far more conclusively than some have suggested, and was decided in substance by the founding generation and its immediate successors. The right did not exist then, and it does not exist now.

Although James Madison’s work is frequently cited to support nullification arguments, the fact is he did not advocate for nullification in 1798. To the contrary, Madison — often recognized as the “father of the Constitution” — vehemently asserted that no nullification right existed for the states, “with a surprise hereafter, that any other [interpretation] should ever have been contended for.” Even President Andrew Jackson, a staunch and boisterous defender of states’ rights, rejected nullification as a right reserved for the states.

There is no “secret” or “forgotten” history here. Whether things “should have” turned out this way and whether they did are very different questions, and they should not be confused as being the same. While I love a good philosophical discussion about how the best or ideal government would be structured, I would be in error if I expressed my philosophy as a history in spite of the history. There is no provision in the Constitution for states to “nullify” a federal law, and I hope the liberty-minded will decline to try and breathe life into such an interpretation.

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I think the SCOTUS should just disband, but not before they leave some mysterious prophecy detailing signs that need to be fulfilled before they return.

That way, they could stop mucking up the constitution, while letting us appreciate them more in their absence.

StubbleSpark on June 12, 2012 at 9:51 PM

Patrick, you are 100% WRONG.

There are two components to the question of whether Obamacare is Constitutional…

1) Does Congress have the authority to raise the money for it?
2) Does Congress have the authority to spend the money or regulate it?

Congress has the power to tax, thus some elements of Obamacare (ignoring the severability issue) could be considered Constitutional. But Congress does NOT have the authority to spend that money regulating healthcare choices.

The “Commerce” argument doesn’t hold water since it was designed to regulate commerce AMONG the states… like if a state were to levy tariffs against products imported from another state.

Thus, the 10th Amendment comes into play…

Amendment 10: 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.

Thus, regulating healthcare is a power OF THE STATES. Since it is being illegally imposed by the Federal government, it is considered NULL… and states can ignore that illegal law.

If you think I am wrong, please cite the Article, Section and Clause that authorizes Congress to regulate healthcare. You might start by reviewing the clauses in Article 1 Section 8.

dominigan on June 13, 2012 at 12:41 AM

Patrick, under your logic, a federal law legalizing rape and subsequently upheld by the Federal Courts would be valid, irrefutable and unassailable other than by Constitutional Amendment. I do not believe such a system of Government was intended. Nor would such a view be consistent with the explicit provisions of the Bill of Rights Article 9 or 10. No American has any duty whatsoever to obey an Unconstitutional act of congress.

I do not believe the Heritage Foundation is the last word on nullification, let’s recall this is the same group who tried to sell us on the individual mandate…which is by the way….Un-Constitutional.

I believe the the Constitution is a contract between the States and the People and the Federal Government…and that when the Federal Government exceeds its Constitutional Authority, both the States and the People have the “Right” to ignore or nullify any such legislation…in fact for those sworn to defend the Constitution have a duty to oppose, ignore, nullify, inhibit and destroy any and all Federal overreach.

Now would be the time where you might argue….’but if the Supreme Court says so, it’s the law of the land’. There is a lot of debate on that specific point. It even came up repeatedly in the GOP Debates, where Gingrich made the most cogent arguments that each of the 3 branches has the duty to interpret the Constitution and that Marbury v Madison was an unconstitutional power grab. Also, Marbury discounts the the possibility of a role for States and Citizens in interpreting the Constitution…an omission which is not supported anywhere in the Constitution.

Before you leap to the “Co-equal” branches argument, understand the 3 branches are not “Co-equal” and were never intended to be. Hence the reason that the power to Tax, Spend, Declare War, Coin Money etc are all issues for the Congress. The Supreme Court was intended to be the weakest of the three branches. Most “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution” But if the law in question is outside the boundaries of the Constitution, or does not arise “under this Constitution” arguably SCOTUS has no jurisdiction whatsoever. Thus, any extra-Constitutional act by congress would not be subject to SCOTUS review.

Whatever the case, we all know what the generally accepted view of nullification is in the modern court system…but I would suggest we are all watching the pendulum swing back to a more balanced view of a Constitutional Republic. The movement towards Constitutionalism has not originated in the Courts on a wave of Conservative Justices; the movement has come through popular outrage in public and in Statehouses across America. No law, whether Constitutional or otherwise can survive without popular support, and that’s the bottom line. So I would say, that Statehouses and Citizens can in fact nullify laws via formal declaration or otherwise and be completely within the bounds of the Constitution. The law is whatever you so boldly assert….it has always been that way….it will always be that way.

Afterseven on June 13, 2012 at 1:37 AM

And if states simply don’t comply..or, like the fed, decide a given law is low priority and don’t enforce it?? What happens then? Withhold funding for some programs?
Please…give it a try.

Mimzey on June 13, 2012 at 7:16 AM

Three words for all your State’s Rights/Nullifiers out there:

Appomattox Court House

JFKY on June 13, 2012 at 8:52 AM

Three words for all your State’s Rights/Nullifiers out there:

Appomattox Court House

JFKY on June 13, 2012 at 8:52 AM

But see, that’s not quite true. Although Lee surrendered the forces with him, the remnant of the “Army of Northern Virginia”, the Army of Tennessee, and others were still in the field, and operations would continue for awhile longer.

After the Battle of Bentonville, in North carolina, Joe Johnston met with Sherman to discuss surrender terms, and eventually those were worked out, surrendering the Army of Tennessee, and other attached CS forces.

Kirby Smith’s forces continued to wage war until, I believe, late May, and the last CS force, a CS Navy Cruiser, did not surrender until November of 1865.

The problem with ACW history is that our schools don’t teach it. They give a highlight reel version, and then move on to something else, which is a real shame.

TKindred on June 13, 2012 at 9:35 AM

TKindred on June 13, 2012 at 9:35 AM

Pick at nits, if you care to, Appomattox Court House settled this debate ande anyone who thinks otherwise is living in Cloud Cuckoo Land.

JFKY on June 13, 2012 at 10:10 AM

If you think I am wrong, please cite the Article, Section and Clause that authorizes Congress to regulate healthcare. You might start by reviewing the clauses in Article 1 Section 8.

dominigan on June 13, 2012 at 12:41 AM

I would argue that if the HHS mandate violated the Constitution, a state would have a legal leg to stand on while presenting its arguments to the Supreme Court. For the state to outright nullify a federal law without appeal would be forbidden, as states would only apply those federal laws as they saw fit.

While I’ve always argued that the founding fathers were careful framing the Constitution against tyranny, they also understood the majority of laws were to be controlled at the state level, with the select few, as defined by the Constitution, to be controlled at the federal level.

I have to agree that the HHS mandate is unconstitutional, but while this rediculous law is on the federal books, states must abide by it. Let’s hope the SCOTUS doesn’t make a mockery of the Constitution and uphold this foolishness.

Turtle317 on June 13, 2012 at 10:19 AM

Let’s straighten out one misconception. A single fellow at the Heritage Foundation, Dr Stuart M. Butler, wrote a paper in 1989 that included a proposed individual mandate. The paper was his own work and the title page had a line at the bottom which said it did not represent the views of the Heritage Foundation.

Again, Butler’s views were not and are not the views of Heritage, or of the Republican Party, or of any significant percentage of the American people.

J Baustian on June 13, 2012 at 10:51 AM

Again, Butler’s views were not and are not the views of Heritage, or of the Republican Party, or of any significant percentage of the American people.

J Baustian on June 13, 2012 at 10:51 AM

No single person is the authority on what an ideal government looks like or even what’s “constitutional,” but for as often as James Madison crops up in Nullifier arguments, you’d think Madison was a Nullifier himself. He was not, and that’s not Butler’s spin.

Patrick Ishmael on June 13, 2012 at 10:54 AM

Is there a constitutional right for states to nullify federal laws? The answer is “No.”

Do you believe Jefferson and Madison are in agreement upon this?

Bizarro No. 1 on June 13, 2012 at 11:17 AM

Do you believe Jefferson and Madison are in agreement upon this?

Bizarro No. 1 on June 13, 2012 at 11:17 AM

No, which is why Nullifier arguments about “Jefferson and Madison” leading the nullification charge are incorrect.

Patrick Ishmael on June 13, 2012 at 11:29 AM

Do you believe Jefferson and Madison are in agreement upon this

No, but Grant, Meade, Sherman, Longstreet, Lee and Jeff Davis sure are….

JFKY on June 13, 2012 at 11:36 AM

“Nullification” sure sounds good when you are seeing your side nullifying, but I can hardly wait until Massachusetts or California start nullifying Romney, Boehner and McConnell’s plans, then we’ll see how HotAir likes Nullification…IF a constituent entity can “Nullify” the whole’s actions, to what extent do we have a “Union?” When accounting can “nullify” the CEO’s business decision, do you still have a company or just a group of people “working” in the same place?

JFKY on June 13, 2012 at 11:39 AM

JFKY on June 13, 2012 at 11:39 AM

And there you have the crux of the matter.

Sore-loser BS aside, the Civil War actually came down to this issue. If a handful of racist thugs had been allowed to ‘nullify’ the right to “life, liberty, and the pursuit of happiness”…it would’ve meant the Constitution was a cruel joke. If we couldn’t stop them, what was to stop states with valid gripes? The “United” States would be little more than a shared delusion.

“Nullification” only sounds good to a foolish idealist or someone who stands to benefit from it at the moment. Right-wingers who think it’s such a grand idea should pause and think about what would happen if a hard-liberal state (like Californication) suddenly up and did it.

MelonCollie on June 13, 2012 at 12:01 PM

No, which is why Nullifier arguments about “Jefferson and Madison” leading the nullification charge are incorrect.

Patrick Ishmael on June 13, 2012 at 11:29 AM

It sure looks silly to me to say that the answer is inarguably “No” to the question, then (I say that only partially because I find Jefferson to be a more persuasive debater than Madison.)

Bizarro No. 1 on June 13, 2012 at 12:22 PM

No, but Grant, Meade, Sherman, Longstreet, Lee and Jeff Davis sure are….

JFKY on June 13, 2012 at 11:36 AM

I don’t believe I’m following your point – do you believe that Jefferson, or anyone who agrees with him about nullification, can make no reasonable argument whatsoever in defense of that position?

What exactly do you believe the purpose of/principle behind the 2nd Amendment is?

Bizarro No. 1 on June 13, 2012 at 12:34 PM

Nullification is Unconstitutional

… but another Constitutional Convention is not.

gravityman on June 13, 2012 at 12:42 PM

I don’t believe I’m following your point – do you believe that Jefferson, or anyone who agrees with him about nullification, can make no reasonable argument whatsoever in defense of that position

My point is that the American Civil War ended this debate, CONCLUSIVELY….”Nullification” is UNCONSTITUTIONAL, and you can ‘debate” it all you want, drag out all the arcane arguments you care, cite whomsoever you c are, bring in any number of ‘wizened old men” but at the end of the day the fact that Lee was forced to surrender Grant, settled this debate. Just like who won the debate between Trotsky and Stalin…Stalin, Trotsky got an ice pick in the head…..

JFKY on June 13, 2012 at 12:44 PM

Patrick, you are dead wrong. Nullification is most definitely Constitutional. Nullification has been used in the past – against the Runaway Slave Act, and it is every sovereign state’s right to enact it.

Please do not continue peddling something you clearly know nothing about. Educate yourself.

I would urge you to read Tom Woods’ book and visit his website, which would correct many of your erroneous beliefs.

Tom Woods site

Nullification

And JFKY, you continue to show your ignorance. The War Between the States settled no such matter.

Dante on June 13, 2012 at 2:10 PM

Sore-loser BS aside, the Civil War actually came down to this issue. If a handful of racist thugs had been allowed to ‘nullify’ the right to “life, liberty, and the pursuit of happiness”…it would’ve meant the Constitution was a cruel joke. If we couldn’t stop them, what was to stop states with valid gripes? The “United” States would be little more than a shared delusion.

“Nullification” only sounds good to a foolish idealist or someone who stands to benefit from it at the moment. Right-wingers who think it’s such a grand idea should pause and think about what would happen if a hard-liberal state (like Californication) suddenly up and did it.

MelonCollie on June 13, 2012 at 12:01 PM

You have a gross misunderstanding of what nullification is. Additionally, you seem unaware that nullification HAS been used in the past. Check out your Supremacy Clause as a jump start to correcting your ignorance.

And the Civil War did not come down on this issue. Not at all.

Dante on June 13, 2012 at 2:14 PM

There is no provision in the Constitution for states to “nullify” a federal law, and I hope the liberty-minded will decline to try and breathe life into such an interpretation.

It is ironic that Patrick is making an appeal to the “liberty-minded” when he is clearly advocating an anti-liberty position. We are a confederated, not consolidated, Republic of sovereign states that existed before the creation of the Union. 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.

Here’s what the people were told it meant at the state ratifying conventions, which is what matters. (I’ll be a sport and not even mention the proto-nullification arguments made at the Virginia Ratifying Convention, which settle the argument, though you can get the story in my Nullification or in Kevin Gutzman’s James Madison and the Making of America.)

Alexander Hamilton, at New York’s convention: “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding” (emphasis added).

In Federalist #33, Hamilton added: “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….”

Dante on June 13, 2012 at 2:22 PM

If a handful of racist thugs had been allowed to ‘nullify’ the right to “life, liberty, and the pursuit of happiness”…it would’ve meant the Constitution was a cruel joke.

MelonCollie on June 13, 2012 at 12:01 PM

Well, they nullified two tariffs. They didn’t need to nullify the “life, liberty and pursuit of happiness” clause in the Declaration of Independence because 1) it isn’t law and 2) slavery was enshrined in the Constitution.

EddieC on June 13, 2012 at 3:38 PM

Perhaps it is not.

But the Founders did recognize the Natural Law, and as articulated in the DOI, there is a right to resist tyranny.

Perhaps we might look at nullification not so much Constitutional as a peaceful form of such resistance.

avgjo on June 13, 2012 at 4:42 PM

Sore-loser BS aside, the Civil War actually came down to this issue. If a handful of racist thugs had been allowed to ‘nullify’ the right to “life, liberty, and the pursuit of happiness”…it would’ve meant the Constitution was a cruel joke. If we couldn’t stop them, what was to stop states with valid gripes? The “United” States would be little more than a shared delusion.

“Nullification” only sounds good to a foolish idealist or someone who stands to benefit from it at the moment. Right-wingers who think it’s such a grand idea should pause and think about what would happen if a hard-liberal state (like Californication) suddenly up and did it.

MelonCollie on June 13, 2012 at 12:01 PM

Umm…….. perhaps you ought to reread the history of the civil war. Just for starters, the Emancipation proclamation didn’t free all the slaves. It only freed slaves in those states still in active rebellion and did NOT free any slaves in states, territories, or other areas under federal government control.

Slavery continued to exist in some northern areas for several years following the war, and it wasn’t until Congress acted that slavery throughout these United States was fully abolished.

Of course, it could be argued that slavery, as in dependency upon the government still exists to this very day, particularly in those areas (ironic, I know) controlled by Democrat state and local governments. The rise of the welfare programs such as food stamps, section-8 housing, etc, brought a new and perhaps more insidious form of slavery back into our country where it flourishes today.

TKindred on June 13, 2012 at 5:17 PM

I would also strongly urge each one of you to click on my name and follow its link to The Liberty Classroom, where you can begin to undo all of the propaganda you’ve been subjected to throughout your educational years.

Dante on June 13, 2012 at 7:35 PM

My point is that the American Civil War ended this debate, CONCLUSIVELY….”Nullification” is UNCONSTITUTIONAL, and you can ‘debate” it all you want, drag out all the arcane arguments you care, cite whomsoever you c are, bring in any number of ‘wizened old men” but at the end of the day the fact that Lee was forced to surrender Grant, settled this debate. Just like who won the debate between Trotsky and Stalin…Stalin, Trotsky got an ice pick in the head…..

JFKY on June 13, 2012 at 12:44 PM

So, IOW, you’re on the ‘might makes right’ side. Not that your stance wasn’t already obvious, but, it’s nice to see it laid out even more explicitly! :)

Bizarro No. 1 on June 13, 2012 at 10:59 PM

Seems like all the word games catch up to people. Here is how the game is being played. The federal government taxes all the people. Then, the federal government writes laws to return the money to the states, and the people that live in those states. As a condition of receiving that money, the federal government then writes various new laws for the states to implement.

So, IF a state wanted to ‘not implement’ various federal laws, the penalty would be that the people in that state will not get their share of the collected taxes.

This is why you sometimes see a state ‘nullify’ a particular law if they simply do not mind losing whatever ‘goodie’ is associared with accepting that money.

Look no farther than the 4th part of the supreme court case against obamacare. Some states were sueing the federal government for trying to ‘piggyback’ the new obamacare state level extensions onto the entire medicare program. Which is in fact administered in different ways in various states today.

Freddy on June 14, 2012 at 5:02 AM

So, IF a state wanted to ‘not implement’ various federal laws, the penalty would be that the people in that state will not get their share of the collected taxes.

This is why you sometimes see a state ‘nullify’ a particular law if they simply do not mind losing whatever ‘goodie’ is associared with accepting that money.

Freddy on June 14, 2012 at 5:02 AM

That’s not what nullification is. Nullification is for those laws that are unconstitutional, and therefore not binding, not just any law.

Dante on June 14, 2012 at 7:35 AM

Obama nullifying standing immigration law = good.

This post is a complete joke.

tetriskid on June 15, 2012 at 12:06 PM

So, IOW, you’re on the ‘might makes right’ side. Not that your stance wasn’t already obvious, but, it’s nice to see it laid out even more explicitly! :)

Bizarro No. 1 on June 13, 2012 at 10:59 PM

As if the South wouldn’t have done exactly the same thing if they’d won, you racist hypocrite…

MelonCollie on June 15, 2012 at 7:20 PM

If I can cut to the chase here. Patrick (and all anti-nullifiers using this argument) are saying this:

Everyone in the country must obey every law passed by Congress no matter how obnoxious, illegal, vile, criminal, hateful, wicked, immoral or unconstitutional — or be in violation of the Constitution.

That once having been given the power to make national laws, the Congress has total, plenary power to do whatever it wants. Period.

Please note that while the argument is made here that The People have a right to protest, that right will only exist until the same Congress passes a law that makes such protest illegal. To disobey that law, and continue to protest, according to the logic of this author would make that protest illegal and unconstitutional.

And the same would be true of a Constitutional Convention, which this article states is the remedy for unconstitutional acts by the central government.

Wouldn’t it be true that the people will only have the right to call a convention until Congress passes a law that makes such conventions illegal?

I’m not sure how this differs from an absolute monarchy.

the-gunslinger on November 10, 2013 at 5:28 PM

“As if the South wouldn’t have done exactly the same thing if they’d won, you racist hypocrite…” – MelonCollie

Wow, way to argue civilly. Very mature.

the-gunslinger on November 10, 2013 at 5:32 PM