“The more I think about language the less possible it seems to me that we ever understand one another.”, Kurt Godel
If you’ve been paying attention to web coverage of nullification in recent months, you may have noticed the ongoing dialog among the Heritage Foundation‘s Matt Spalding and several Tenth Amendment Center writers. Specifically, Dr. Spalding wrote Rejecting Nullification: Idaho Draws the Constitutional Line and Nullification Fails, Again (This Time in North Dakota), stating his opposition to nullification in both articles. His Idaho article was among the reasons that led to my article, Proposing a Nullification and Interposition Framework. Dr. Spalding’s North Dakota article was addressed in Nonsense – analyzing the Heritage position on nullification, by the Tenth Amendment Center’s Michael Maharrey. Tom Woods also responded to the North Dakota article, here.
In both the Idaho and the North Dakota articles, Dr. Spalding rejects nullification by name, but endorses ideas which fit my idea of nullification, so part of our disagreement is clearly definitional. One puzzle, then, is to figure out what Dr. Spalding means when he uses the word nullification. In his Idaho article, Dr. Spalding writes,
Nullification is the argument that individual states have a constitutional authority to void federal laws. John C. Calhoun made this claim back in 1832 and James Madison vehemently opposed it during the Nullification Crisis leading up to the Civil War.
So how do we enforce the Constitution over unconstitutional laws? The document itself lays out the best options: change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution. But there is no state nullification clause.
Jefferson did use the term “nullification” in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution—admittedly and of necessity outside the constitutional structure. Even so, as a practical matter, after declaring the offensive laws “void and of no force,” Kentucky only called on other states to “unite with this commonwealth in requesting their repeal” by Congress.
In his North Dakota article, Dr. Spalding writes,
Loose talk claiming a state’s independent authority to declare federal law null and void at will not only confuses the situation but also undermines our constitutional credibility. States have the right–indeed, the responsibility–to push their own constitutional opinions about federal laws. They can go so far as to challenge those laws and “interpose” themselves (as James Madison advocated) between the federal government and their citizens.
I have to admit that after reading both of his essays a number of times, I remain confused about what Dr. Spalding means by his use of the word nullification. I do find it ironic that he can object to nullification saying, “there is no state nullification clause”, but simultaneously support interposition. Perhaps it would help to clarify things if he points us to the “state interposition clause” in the Constitution?
According to the online etymology dictionary, the word nullification has its origins in the Kentucky Resolutions, so Dr. Spalding appears to be on the right track when he references that document. Let’s see what Jefferson had to say,
…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:…
So when the general government abuses its delegated powers, Jefferson believed that the constitutional remedy would be a change by the people. However, when the general government assumes an undelegated power, nullification is the proper response. But what did he mean by nullification? Apparently, this was the word’s first use. He goes on to say,
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:
So unsurprisingly, nullification seems to have been derived from to nullify – “to esteem lightly, despise, to make nothing”. Keep that definition in mind and notice the fancy footwork when Dr. Spalding writes, “Even so, as a practical matter, after declaring the offensive laws ‘void and of no force,’ Kentucky only called on other states to…” – So as a practical matter, Kentucky just nullified the law – that’s all – Nothing to see here.
“A ‘No’ uttered from the deepest conviction is better than a ‘Yes’ merely uttered to please, or worse, to avoid trouble.”, Mohandas Gandhi
If Dr. Spalding is saying that the Constitution doesn’t give the states the right to nullify Unconstitutional federal laws, I agree with that, but to me, that’s not relevant. The question is, does the Constitution prohibit it? Article I, Section X of the Constitution lists the powers which are prohibited to the states. Nullification is not in there. To reason about this, we need to think about black lists and white lists in the Constitution. For the most part, the Constitution provides a white list of powers for the federal government and a black list for the states. This means that if a power is not prohibited to the states, then it is allowed. If nullification is not prohibited, then it is allowed…. and nullification is nowhere prohibited by the Constitution. We already saw Jefferson’s view on nullification. Out of curiosity, with a Jefferson type definition of nullification in mind, what does the Heritage Foundation say about this question? According to the Heritage Foundation, does a state have the right to say, “no” to the federal government?
“if a state legislator sincerely believes that the health care law is unconstitutional, he is under no obligation to vote one red cent of state taxpayers’ money to enforce it. For those who take their oath seriously, it is not even an option.”
Kathryn Nix and Margot Crouch, at the Heritage Foundation, write,
State legislatures and governors can be especially effective in taking the lead against the bad policies enacted under Obamacare.
Matt Spalding, at the Heritage Foundation (remember him?) says (at around 2:25),
the key lever of that living Constitution are the courts and judges. Whatever the judges say is in the Constitution. They’ve got the final say, they (progressives) claim, to what this living Constitution means. That really undermines the whole idea of limited Constitutionalism; ignores the idea of principles behind that sense of Constitutionalism and really turns over our whole self-governing system to judges… and that’s one of the key problems we have today.
The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius). A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act.
So we’re back to the definitional thing. Spalding supports Health Care Freedom, Firearm Freedom, Incandescent Light Bulb Freedom and REAL ID resistance, but claims they are not nullification (without really explaining what he means by his use of the word). So let me quote from the text of Pennsylvania’s proposed Firearm Freedom Act (HB752),
Prohibiting certain firearms, firearm accessories or ammunition from being subject to Federal law or Federal regulation.
A personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Pennsylvania and that remains within the borders of Pennsylvania shall not be subject to Federal law or Federal regulation, including registration, under the authority of Congress to regulate interstate commerce.
Does this sound like what Jefferson might have meant when he crafted the word nullification? Does this “make nothing” of federal regulatory power inside the state’s border? I invite you to explore Pennsylvania’s Health Care Freedom and Real ID legislation to see if those bills propose to “make nothing” of Unconstitutional federal powers or not.
Lastly, let me quote from the North Dakota law, about which Dr. Spalding assures us, “Call it what you will, but it’s not nullification.”,
No provision of the Patient Protection and Affordable Care Act or the Health Care and Education Reconciliation Act of 2010 may interfere with an individual’s choice o f a medica l or insurance provider except as otherwise provided by the laws of this state .
You tell me? Does this purport to “make nothing” of an Unconstitutional federal action? After reviewing all of these articles, the best guess that I can come up with is that the Heritage Foundation position on nullification boils down to, “Do it, but don’t call it nullification”.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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