Writing for the Tenth Amendment Center, a person finds oneself spending a lot of time and pixels defending the concept of nullification. These defenses generally take the form of answers to two questions. Is nullification a legally valid concept? Is nullification a good idea? The arguments about whether or not nullification is a good idea can often be split into whether it’s a good idea from a practical sense, and whether it’s a good idea from the philosophical sense.
In this essay, I will address all of those questions. First, using a single argument, which I believe is conclusive, I will demonstrate that nullification is, indisputably, a valid legal concept under our political system. Having accomplished that, I will next show that under our foundational principles, nullification is a philosophical necessity. Finally, I will advance an argument that the use of nullification will lead to an overall healthier society.
Question 1: Is Nullification a Legally Valid Concept?
We have addressed the arguments against nullification over and over and over again — so often that it sometimes becomes tiresome. In a rational world, this argument would have ended, in favor of nullification, years ago. Here in our world, it continues. Today’s argument, then, boils down to the fact that the antinullifiers simply cannot identify the exact moment in history when the states surrendered their ability to resist laws that originate outside of their borders. Since the power was not surrendered, it was retained.
First, before the Constitution, could the states “nullify” laws that were issued by other governments, located outside their borders? Indisputably, they could. Virginia and Maryland and New Jersey and the other states could not have passed a law and enforced it in Pennsylvania. Before the revolution, James Otis’ argued in 1761 that, “An act against the (British) Constitution is void.”* As far back as the 13th Century, Thomas Aquinas wrote that human law which, “is at variance with natural law it will not be a law, but spoilt law.” Our founding generation fought a war in support of that principle. To deny the principle, you must assert that the American Revolution was fought in error. Clearly, before the Constitution, the question was not whether, but when.
For someone to argue that nullification is now legally invalid, that person must be able to show the exact moment when the power was lost or surrendered. Nullification’s detractors typically point to several places when the power may have been lost. The Civil War, The Supreme Court’s Marbury vs. Madison decision, or the ratification of the Constitution are commonly claimed. I’m sure there are others, but this argument will reject those, too.
As Thomas Paine noted, in The Rights of Man, a government can acquire its power in only two ways. The power can be voluntarily delegated or it can be involuntarily seized. To argue that Marbury vs. Madison or the Civil War prohibited nullification is to argue in favor of seizure of power. This contemptible claim flies in the face of our fundamental principles on government (not to mention, the nullifiers won the Civil War!). These, and any other arguments relying on facts after the ratification of the Constitution can be instantly rejected. If a power has been seized by one government, it can be seized back by the rightful holder of the power. As soon as you see words like “John Calhoun”, “Supreme Court”, or “Civil War” in an argument against nullification, you know that you’re looking at an argument based on seizure, and you can reject it. No matter how many flowery words the author uses, there is no logic that can rescue an illicit power grab.
Those who argue in favor of the ratification of the Constitution are on better ground, philosophically, but they have another requirement. They must show us the exact text surrendering the power. And they cannot do it. They try to use the Supremacy Clause, but omit the fact that only laws in pursuance of the Constitution are Supreme. The only other place where they might find support is Article I, Section X, Powers Prohibited of States.
Nope. Sorry. Not there either.
So, the Tenth Amendment applies:
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.
There it is. The power to legislate on topics which have not been delegated to the federal government was reserved by the states on December 15, 1791, and there it remains. Like it or not, this logic is indisputable. The Supreme Court cannot change it. The Civil War cannot change it. John Calhoun cannot change it. Only a constitutional amendment to surrender that power could change it, but none has been passed.
Question 2: Philosophically, is Nullification a good idea?
Declaration of Independence: “…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
What is nullification? I don’t mean, “what does it mean”, but rather, “what does it represent”? Nullification represents an absence of consent. The state is saying, “I don’t consent to this federal usurpation.” Consent and dissent are two sides of a coin. You cannot have one without the other. If you take away a state’s ability to withhold its consent to unconstitutional laws, then consent is no longer implied for constitutional ones. If you believe the words in the Declaration of Independence, then taking away the ability to express consent delegitimizes the government, even those powers which are exercised in compliance with the Constitution.
Back to Paine, and The Rights of Man, speaking of English laws which attempted to shackle future parliaments from repealing them, Paine wrote:
They become null, by attempting to become immortal. The nature of them precludes consent.
He also wrote that,
It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living.
These principles apply to state-level nullification, too. As parties to the Constitution, our system of government requires consent from the states, as well as from the people. By attempting to prevent states from withholding consent, nullification’s detractors also prevent states from expressing consent. This replaces government by delegation with government by seizure.
If we wish to live under government by consent, then we must be willing and able to withhold consent. Consent derives its meaning from the ability, and willingness, to dissent. Without these, we live under government by force, not by consent. Put simply, the presence or absence of nullification fundamentally transforms our government in a way that is vital to the health of the republic.
Question 3: In a practical sense, is Nullification a good idea?
“Anything that can go wrong, will go wrong”, Murphy’s Law
I have recently been reading the thought-provoking book, “Antifragile: Things that Gain from Disorder“, by Nassim Nicholas Taleb. In this book, Taleb discusses the concept of fragility, from a systems perspective. In his viewpoint, the fragile is something which is harmed by the unexpected, robust is something which is impervious to it, and antifragile is something that grows stronger from chaos and disorder. He points out that many natural systems are antifragile. Some examples: Evolution uses random mutations to build better organisms; Our bodies grow stronger when we exercise daily; Competition among restaurant owners leads to the eradication of poorly run restaurants and the growth of better ones.
Bad things are going to happen. That’s life. What matters most is how our systems respond to bad things. Some systems, the fragile, are harmed by the unexpected. Other systems, the antifragile, thrive from it. At the risk of oversimplifying for a blog article, one main difference between fragility and antifragility is redundancy. Another difference is in the types of errors. A fragile system (think, “too big to fail”) is vulnerable to small numbers of catastrophic errors. It is lulled into complacency by the usual absence of errors and therefore, fails to prepare for the eventual, inevitable large error. An antifragile system is exposed to large numbers of smaller errors. The frequent exposure to small errors leads to adaptive behavior which increases the system’s viability.
Applying this concept to our government, the recent theatrics in Washington give us an insight into just how fragile our system is. When one faction of one party of one house of one branch of government can work with the President to cause a government shutdown that harms a nation of 319 million people or to threaten a financial collapse, that is fragile.
Taleb’s chief ethical rule, in this context is that,
Thou shalt not have antifragility at the expense of the fragility of others.
Yet, this is exactly what 536 elected officials in Washington do, every single time they move a power from the fifty states to a central location, they are eliminating redundancy and increasing fragility. If our elected officials in Harrisburg make a mistake, that effects 12 million Pennsylvanians. From the perspective of 49 other states, that mistake is either harmless, or even helpful as it may lead to a shift in resources from Pennsylvania to the other states. That system is either robust, or anti-fragile. A mistake in Washington harms 319 million Americans. That is fragile.
So what has all this got to do with nullification? Nullification is how the states can increase anti-fragility in our political and economic systems. Washington wants to increase its own ability to thrive from the unexpected by diminishing ours. The states can, and should, use nullification to resist that tendency, force decentralization, and decrease our political system’s exposure to catastrophic harm. Eventually, this country will be exposed to an existential crisis, a black swan – as Taleb terms it. Maybe in our lifetimes, maybe in our children’s or grandchildren’s. Exactly when it will happen, no one knows, but it will happen. When it happens, antifragility will determine the survivors. If we do nothing to decrease fragility in our political and economic systems, we are in grave danger. Nullification is the most effective tool to decentralize powers which have been usurped by a recalcitrant federal government.
This essay made three main points. First, nullification is a legally valid power for the states to exercise. If it were not, the antinullifiers would be able to point to the exact moment in history when the power was surrendered. Since that moment doesn’t exist, they cannot point to it. Second, the use of nullification is philosophically consistent with the principle of consent that was expressed in the Declaration of Independence and Thomas Paine’s Rights of Man. A refusal to nullify unconstitutional federal actions creates a corresponding lack of consent for constitutional ones. This, in turn, transforms our government from a government by consent to a government by compulsion. Finally, the use of nullification leads to antifragile political or economic systems, which makes our society healthier by reducing our exposure to “black swans”, catastrophic events which can destroy fragile systems.
*Update – November 6, 2013: This article previously quoted James Otis as saying, “A law against the constitution is void”. This was incorrect and has now been fixed.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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