November 6, 2013

This continues the discussion of nullification begun on October 29.

The first task in evaluating the theory of nullification is to determine exactly what that term means or, perhaps more to the point, which definition we should consider. In its weakest form, "nullification" is used to describe any declaration or act by a state which is inconsistent with federal law. Thus, state medical-marijuana laws are considered by some to be a form of nullification. That certainly is a loose application of the term. Such laws are inconsistent with federal law and are an implied disapproval, but the federal law remains in force and the state law does not affect its enforcement, a result illustrated by Gonzales v. Raich.[115] As noted in the preceding post, the Firearms Freedom Act has been labeled a nullification measure even though it does not declare any law void.

Here is an attempt at a definition by a proponent: "Nullification is the claim that the supposed law is not a law at all because it is unconstitutional."[116]  However, that's only part of the picture; anyone can make such a claim without engaging in "nullification." Another version is that "nullification is a concept of legal statutory construction that endows each state with the right to nullify, or invalidate, any federal measure that a state deems unconstitutional."[117]  That specifies that the state can decide constitutionality, but the issue is constitutional theory, not statutory construction. Here’s another try: "When a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective,' within the boundaries of that state; or, in other words, not a law as far as the state is concerned."[118]  That seems to be more or less the core definition.

However, there are others. "State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws."[119]  That adds non-cooperation to the formula. (The "must" is padding). "The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries."[120] That implies active opposition. However, Patrick Krey, the author of the last definition, despite asserting that nullification may mean refusing to permit the enforcement of a federal law, backed away from confrontation in another essay written on the same day: "The goal of nullification should simply be inaction when the feds want action . . . ." He disapproved of the versions of the Firearms Freedom Act which provide that federal officials could be criminally prosecuted for trying to enforce firearms laws. "The key to successfully using nullification is to expose the federal government as the aggressive, unconstitutional usurper, and states would be wise to not directly confront them."[121]

All of this floundering suggests that the advocates of nullification don’t have a firm grasp on the idea. For this discussion, I'll take "nullification" to mean a declaration by a state that a federal law is void and unenforceable within that state.

As strange the notion of nullification seems, it has infected the deliberations of many legislatures, so it requires rebuttal. It is not difficult to demonstrate that the theory is unsound but, because the arguments in favor depend in part on the misreading or misapplication of a number of documents, systematic refutation requires a tedious review of them. I've undertaken that in an Annex to this post; the following is a more general analysis.

Nullification is based on a belief in state sovereignty. Resort to states' rights or "sovereignty" is a common reaction by the party losing influence in the federal government and, accordingly, it is more a political ploy than a serious constitutional argument.[122]   Nullifiers rely heavily on documents drafted by Jefferson and by Madison in the 1790s; however, they illustrate the point. During the Washington and Adams administrations Madison resorted to a states-rights stance, and Jefferson sometimes went to extremes, because they were losing contests to, or opposed policies attributed to, Hamilton. The documents relied upon date to that period of political powerlessness and resentment.

Before considering the statements by the Founders, let's look at the theoretical basis of nullification. (Here I'm following the argument of a principal supporter of nullification, Thomas Woods).[123]  The claim is that, because the states entered into a "compact" which created the union, they retain the power to review and repudiate the central government’s actions.

In Dr. Woods’ formulation, there are three parts to the compact theory. First, the nature of the states: they "preceded the Union," were sovereign prior adoption of the Articles of Confederation, and remained so under the Articles. That, however leads nowhere. He simply assumes that the states, under the Constitution, remained sovereign in the same sense and to the same degree as they did under the Articles, which ignores the very different arrangement under the Constitution. Note, for example, that the Articles declared that

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled (emphasis added)

whereas the Tenth Amendment to the Constitution, the bastion of states' rights, provides:

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.

In addition, Woods' argument about state sovereignty conflicts with his second point, which is that the people of the states are sovereign. If the people are sovereign, it hardly matters whether the states preceded the union or retained some level of sovereignty. He argues that the people "apportion powers between themselves, their state governments, and the federal government." However, he has the tense wrong; as to the basic structure, the apportioning to the federal government was done in the Constitution.

His third point is that the federal government merely is the agent of the people of the states, and therefore the power to resolve disputes over authority must be in the latter, because an agent cannot be the judge of its own powers. However, although the federal government could be regarded as an agent of the people, in that it protects them and governs, more or less, in accordance with their wishes, it is not an agent in the usual sense of someone who acts under orders, certainly not one whose power and authority is subject to modification at the whim of the principal. It is a government and a sovereignty, so the principal-as-judge argument isn't valid. The people — of the nation — can direct in a general way what the government does, but must do so through the process which is set out in the Constitution: elections.

Woods never reconciled the two theories of sovereignty, but his reference to the people may not be intended seriously; the real argument is for states' rights. Later in the same article he alleged that "it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it." Or, as he said elsewhere, "The states, as sovereign parties to the constitutional compact, have the authority to interpose and to protect their citizens from unconstitutional acts of the central government." Or again, "The central government cannot have the final say because it is a creature of the constitutional compact between the states. The creature cannot tell the creator what the limits of its powers are."[124] The agency argument still fails if the states are substituted for the people; the federal government is a sovereignty.

However, we needn't argue agency theory; the Constitution resolved the issue of who decides whether a statute is constitutional. The Supremacy Clause, Article VI, provides:

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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

But, nullifiers still insist, the federal government — which includes the Supreme Court — cannot be the judge of its own laws; it can’t decide which are constitutional. "The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states."[125]  That claim, of course, ignores reality: the Supreme Court does have the final say, and for good reason: the Constitution decided the issue contrary to the nullifiers’ claim. Article III provides:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . .
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . to Controversies to which the United States shall be a Party; . . .

A claim that a statute or an executive action is unconstitutional is a case arising under the Constitution, and a case in which the United States is a party. This is not a new interpretation; Madison set it out in Federalist 39:

It is true that in controversies relating to the boundary between the two jurisdictions [state and federal], the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

Alas, the position has been "combated," but the fact remains.

The "compact" does not contemplate nullification, and it would be absurd if it did. If such a notion had prevailed, if a federal law could be valid in one state and not another, Madison said in Federalist 44,

the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.

Arguing that states are sovereign, or are the principals of the agent federal government, or that they retained some power to "nullify" — overrule — federal law, also requires that one ignore numerous provisions of the Constitution which define federal power and limit that of the states. In the original Constitution, the latter are set out in Article I, Section 10; Article IV, Section 1; and Article IV, Section 2, Clause 1.  Adding the provisions of the Thirteenth, Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments demonstrates that state "sovereignty," i.e., the area left to state jurisdiction, has been limited so often and so substantially that talk of an inherent, reserved power of nullification is ludicrous.

The state-compact argument really doesn't make much sense on its face. Why rely on the states' having preceded the Union? That applies only to the first thirteen. All other states are "creatures" of the federal government.[126]  True, there is a doctrine of treating all states equally, but that does not magically make Alaska a pre-existing state. If it has the power of nullification, the source must be in the Constitution or in the nature of the federal system. However, the Constitution and the federal union were designed to overcome the sovereignty problems inherent in the Articles of Confederation. Federalist Nos. 18 through 20 were devoted to demonstrating that confederations, throughout history, had failed, that they represented "the political monster of an imperium in imperio."[127] Federalist 20 summed it up as follows: "The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity . . . ." The purpose of the Constitution was to escape such a situation, but neo-nullifiers think that somehow it was perpetuated or created.

The nullification argument is buttressed by quotations from these documents: The Kentucky Resolutions of 1798 and 1799 (the former drafted by Jefferson, the latter containing a clause proposed by him); the Virginia Resolutions of 1798, a follow-up known as the Virginia Report of 1800, and a passage from Federalist No. 46 (the last three by Madison). Apart from The Federalist, the documents relied upon have no status as interpretations of the Constitution, and were repudiated or ignored by other states at the time. They are relied upon because of their authorship. As noted, I've added an Annex which discusses the references in (tiresome) detail, but here I'll limit the discussion to a general principle: the legitimate use of excerpts requires attention to context. In this case, context comes in three forms.

Situation. The Resolutions and the Report were the product of political opposition, based on a belief that the federal government was heading toward tyranny. Overstatement is not surprising in such circumstances.

The Federalist was written in support of the proposed Constitution, immediately following its drafting, by two advocates of stronger central government. (Madison had proposed that the Constitution allow the federal government to veto state laws). They were not likely to advocate state nullification.

Purpose. The Resolutions and Report were drafted to protest against the Alien and Sedition Acts. Those laws were unwise and unjustified applications of government power, enacted by political enemies, so again rhetorical excess might be expected, reenforcing any tendency under the first point.

The purpose of The Federalist was to persuade the New York ratifying convention, which was expected to be hostile, to accept the Constitution. Accordingly, as a sales tool, it sometimes slanted its argument toward preservation of states' rights. Although such comments should not be taken at face value, they have been treated as statements of constitutional principle. "Many have dwelt on Madison's sweet talk and disregarded his basic argument for more power to the central government." Again, "It is this kind of sweet talk to the states that has led modern readers of the Federalist to think that the book argues for decentralization rather than centralization. But decentralization existed at the time; that is what Publius was fighting."[128]

Documentary integrity. Any quotation must be measured against the totality of the document or source. In the Resolutions and Report, one must consider whether the inflammatory passages are contradicted or qualified by other statements in the text. As to excerpts from the Federalist, the entire series, or at least all of Madison's share, must be considered which, as noted, makes suspect any interpretation friendly to nullification.

None of the quotations offered in support of the theory passes these tests. Also, although the Resolutions and other documents cited by neo-nullifiers contain comments supportive of states' rights, they do not propose nullification. The Kentucky Resolutions of 1799 did indeed claim that "a nullification, by [states], of all unauthorized acts done under color of that instrument [the Constitution] is the rightful remedy." However, all that the Kentucky Resolutions did was to protest against the Alien and Sedition Acts and recommend their repeal. The Virginia Resolutions and Report do not claim a right of nullification; they speak of "interposition" between the federal government and the people, but limit any such action to a protest. Argumentative padding cannot be taken seriously as precedent, let alone as constitutional analysis.

Each of the authors elsewhere recognized the danger of an extreme states' rights position. Nullifiers dismiss such inconvenient statements; for example, it is asserted that "Madison was notoriously inconsistent in what he espoused and what he later claimed to mean." [129]  Yet they offer up his convenient comments as though they were holy writ.

In attempting to dramatize his theory, Woods sets up a straw man: "We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction?"[130]  There isn't, never was, and never will be one giant jurisdiction, nor is anyone proposing that.

Finally, we must return to the original question: what does "nullification" really mean? Assuming that a state has "nullified" a federal law, i.e., declared it void and unenforceable, so what? Nullification theorists seem to think that the debate is over, and that the federal law is void simply because a state legislature has said so. "With the exception of a constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), these actions to nullify an unconstitutional federal law without resorting to extra-legal measures or violence." [131]  Nonsense: the feds can ignore the purported nullification and enforce the law. Unless nullifiers are prepared to offer armed resistance, in which case they have passed over into rebellion and have abandoned the compact they claim to uphold, nullification is just so much talk or, to lend it more elegance and a semblance of substance, the forceful expression of an opinion.

Nullification isn't supported by any plausible constitutional theory; it simply is declared to be a right because its advocates think that it ought to be. It is a refuge for those who have been unable to prevail politically at the national level, and is motivated by a dislike of government. The notion that each state should be able to decide which federal laws to obey not is only unfounded and an invitation to chaos, it is just silly.

Those who oppose questionable uses of power by the federal government, such as surveillance, excessive secrecy, drone assassinations or indefinite detention would make more of a contribution if they worked to change those policies and practices through political means, rather retreating into fantasy land.

_________________________

115. 545 US 1 (2005)

116. Thomas Woods, "State Nullification and the Supremacy Clause," apparently quoting a statement by Professor Donald Livingston:
http://tenthamendmentcenter.com/20i3/03/ii/state-nullification-and-the-supremacy-clause/#.Uhwy KynVw
117. Joe Wolverton, II, 'The Case for Nullification,"
http://tenthamendmentcenter.com/2012/06/03/the-case-for-nullification/#.UkB-Do_n9T0
118. http://tenthamendmentcenter.com/2009/io/2i/nullification-firearms-freedom-act-introduced-in-ohio/#.UjUsbI_n9To

119. Woods, "State Nullification: What Is It?" http://www.libertyclassroom.com/nullification/
120. Patrick Krey, "Nullification in a Nutshell," 18 February 2010: http://www.thenewamerican.com/culture/history/item/4772-nullification-in-a-nutshell

121. Patrick Krey, "State vs. Federal: The Nullification Movement,"18 February 2010:http://www.thenewamerican.com/usnews/constitution/item/7701-state-vs-federal-the-nullification-movement

122. Similarly, Jamie Raskin, law professor and Maryland State Senator, described the secession movement by some counties in that state as "a protest movement, not a serious campaign to change political geography."

123.All quotes or references to Woods' views are, unless otherwise noted, to "Is Nullification Unconstitutional?" http://tenthamendmentcenter.com/20 I^/02/07/is-nullification-unconstitutional/

124. The last two quotes are from Woods, "State Nullification and the Supremacy Clause," http://tenthamendmentcenter.com/2013/03/11/state-nullification-and-the-supremacy-clause/#.UhwyKY_n_Vw

125. Ibid.

126. "New States may be admitted by the Congress into this Union;..." Constitution, Article IV, Section 3

127. A sovereignty within a sovereignty. The quotation is from Federalist 15.

128. Garry Wills, Explaining America: The Federalist, pp. 174, 172.

129. Patrick Krey, "Madison's Flip-Flop," http://blog.tenthamendmentcenter.com/20io/02/madisons-flip-flop/#.Ugxfho_n_Vx

130. Woods, "Nullification: Answering the Objections" http://www.libertyclassroom.com/objections/
131. Derek Sheriff, "Nullification in One Lesson, "http://tenthamendmentcenter.com/2012/11/14/nullification-in-one-lesson/#.UkCJRY_n9T0