Taking snark just a step too far

By Brian Schoeneman | Wednesday, January 26th, 2011 | Policy

There are three words that get thrown around too easily in Virginia politics: secession, nullification, and interposition.  It’s doubtful there are any words in our political lexicon that have produced more misery, death and suffering.  They aren’t to be used lightly.

Those words are all loaded with almost two century’s worth of racial discrimination, slavery, devastation and war.  Nullification, a doctrine devised by Thomas Jefferson and popularized by John C. Calhoun, argues that states have the inherent right to ignore federal laws they disagree with.  Secession, which we all are familiar with, is the doctrine that a state may leave the Union whenever it chooses.  Interposition, which went hand in hand with Jefferson’s nullification doctrine and was first used by James Madison, was most recently used in the Civil Rights battles of the 50s and 60s, where state legislatures passed state constitutional amendments designed to contradict federal law, like section 256 of Alabama’s Constitution, which is still on the books even though it is invalid under the Supreme Court’s Brown jurisprudence.

What all three of these doctrines have in common is they are all bad law – none of these doctrines has any legal basis anymore, and arguably never did.  They also have in common that they were used by generations of politicians as a way of cloaking racial animosity with a patina of legality.  The secession doctrine led directly to the Civil War, which took the lives of over 600,000 Americans, including at least 30,000 Virginians.  Nullification almost led to a Civil War in 1831, and the three doctrines raised their ugly heads again in the 60s as the Democratic Party tried to stamp out the rights of black Americans in the South.  None of these doctrines should be taken lightly, and charging that a political opponent is putting forth nullification or secession arguments is – at least to me – a pretty big deal.

That’s what I was very surprised to see State Senator Chap Petersen’s post on his blog Ox Road South today labeling the Repeal Amendment Speaker Howell and Delegate Jim LeMunyon have sponsored as “secession.”  He goes on to characterize the Repeal Amendment as “nullification” and says that “this process of states’ nullifying Federal laws was tested in 1831 and then re-tested in 1861 seems lost on my good friends in the House.”   Chap goes on to ask “an obvious question — if 2/3 of state legislatures disagree with a Federal law, why not use that clout to elect new members of Congress or a new President?”

I like Chap.  He and I have always gotten along, and I think he’s a good legislator, even if he’s a Democrat.  I don’t always agree with him on policy, but I respect him.  But I think he has gone way too far here.  Comparing the Repeal Amendment to secession and nullification is, at best, inappropriate, and – at worst – the equivalent of throwing a bucket of blood on the Speaker and Delegate LeMunyon.

As I have written elsewhere, I am not a fan of the repeal amendment.  I don’t think it’s workable, and I share Delegate Bob Marshall’s concerns with it.  But it’s not nullification and it certainly isn’t secession, and Chap knows better.  Characterizing the bill that way is just plain wrong and an insult to those who drafted, patroned and those who voted for it.  The bill does not suggest Virginia leave the union.  It does not suggest that any state has the right, unilaterally, to declare federal law null and void within it’s borders, which is what Jefferson and Calhoun’s doctrine does.  The bill provides for a federal constitutional amendment that would give the states – 2/3 voting together – the ability to veto a federal law.  The goal of those promoting it is to return some check by the state governments to federal power.  State power under the Constitution has been eroding steadily  since the passage of the 17th amendment and the Supreme Court’s expansion of federal commerce power.  I think it’s completely rational for state governments to want to restore their ability to check federal power.  I don’t think this amendment is a good idea, but calling it secession or nullification is both unfair and demeaning to those Republicans who voted for the bill in the House.

To answer Chap’s obvious question – the reason why the backers of the amendment want it is because they believe that waiting every two years or four years to throw out those who are passing laws they don’t like is too long to wait.  But it does happen, as the 2010 elections demonstrated.  I agree that I would prefer Congress and the President not pass unconstitutional laws to begin with, but even those with the best of intentions can make mistakes, especially when it comes to areas of the law that are unclear.

I understand what Chap is trying to do here by comparing what the Senate is doing with what the House is doing, but you can take snark too far.  Too many people have died because of political policies like secession and nullification to throw those words around lightly and Chap knows that – he knows American and Civil War history and he has Confederate ancestors.  He knows that the House repeal amendment isn’t secession or nullification, and I think he owes Speaker Howell, Delegate LeMunyon and the rest of Delegates who voted for that law an apology.

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