J. Robert Smith writes A Curious Dalliance with Nullification at American Thinker today. By using three citations from a single page in a single book, he determines that the idea of nullification is mistaken and that those of us who support nullification as a remedy to federal overreach are misguided. Here are the the article and the comments. Personally, I found many of the comments to be more enlightening than the article itself.
Mr. Smith’s main points against nullification seem to be:
2.) According to one author, Madison said that the Virginia Resolution of 1798 was misinterpreted by people who claimed that it supports nullification.
3.) Nullification is potentially dangerous, as states may also try to use it to nullify “good” laws.
Mr. Smith also says,
The primary argument used by nullification advocates is that the American nation is an association of states, not a union of the people. This argument for an association of states is also used by some to justify secession. In essence, the argument is that the states entered into a contract agreement with one another. In so doing, states surrendered some of their powers to a national government while retaining others for themselves. Where the contract is breached — specifically, where the national government acts beyond its perceived constitutional scope — then a state has recourse to nullify national laws in a declination to submit.
I don’t necessarily agree about primacy, but that argument strikes me as sound. Since Mr. Smith makes no effort to counter it, I think he has effectively undermined his own premise. But let’s look at his other points anyway.
With regards to the first point, in his own article Mr. Smith cites the Declaration of Independence, where it says
“That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. [emphasis his]“
By thinking carefully about those words, we might realize that nullification is exactly a way to alter a government which has become destructive to those stated ends. Thus, we find the support for nullification which Smith overlooked in the Declaration of Independence. Further, although he did provide a link to the Tenth Amendment Center, Mr. Smith managed to make his entire argument against nullification without actually mentioning the Tenth Amendment even once. Either he is unaware that the Tenth Amendment is the corner stone which has already upheld nullification efforts or he chooses to ignore it because he knows that he doesn’t have a counter-argument.
Either way, the Tenth Amendment is the constitutional support that Mr. Smith was unable to find. Also, as several of his commenters point out, even if support were absent as Mr. Smith claimed, the Constitution defines the role of the federal government. It does not give permission to the states. Anything which is not explicitly prohibited to the states is allowed. We can consider the first point nullified ;-).
With regards to the second point, I will simply paste a comment from American Thinker commenter, “Johnny Appleseed”
The Kentucky Legislature nullified the un-Constitutional Alien and Sedition Federal Laws within its own borders. Who has it right: J. Robert Smith or Thomas Jefferson?
Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes – delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force… Resolved, That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798… also the act passed by them on the – day of June, 1798… are altogether void, and of no force… that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits” Thomas Jefferson – 1798 Kentucky Resolution
“where powers are assumed which have not been delegated, a nullification of the act is a rightful remedy“. So if we are to believe Thomas Jefferson, Mr. Smith’s second point is also found to be lacking merit.
On his final point, that nullification has the potential to be dangerous, I find agreement with Mr. Smith. Any tool can be used or abused. Nullification is no different. It is odd, though, that after recognizing the potential “double edged sword” from nullification, Mr. Smith proceeds to state that as a last resort, we may alter or abolish the national (not federal?) government. Is abolishing the national government less dangerous than recognizing that the sovereign states have the right to nullify unjust or unconstitutional laws? Not in my opinion. In my opinion, nullification seems a far safer course of action than Mr. Smith’s preference. Regardless, the fact that nullification can be misused says nothing about whether it is an option which is available for use by the states.
Let us now move from the theoretical realm to the practical realm. Johnny Appleseed pointed out that Virginia and Kentucky used nullification against the Alien and Sedition Acts. This blog has shown how 18th Century Pennsylvania used nullification to counter the Federal Fugitive Slave Acts. More recently, Real ID and Federal Marijuana Laws have been successfully nullified by numerous states.
In both a theoretical and a practical sense, nullification has been firmly established as a proper course for a state pursuing a just cause. For all of these reasons, although I have enjoyed several of Mr. Smith’s past articles, I profoundly disagree with this one.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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