Everything you think you know about nullification is wrongFeaturedInternationalPolicyPoliticsVirginia

In an attempt to register their objections to whatever Washington dreams up about gun restrictions, the Chesapeake Republican Party is considering a resolution explicitly calling for the state to “to nullify any federal legislation or executive order that infringes on our inalienable right as individual Virginians to keep and bear arms.”

Surprisingly, it has yet to spark the usual and historically ignorant debate on “nullification.” So this post is more a rhetorical pre-emptive strike. No matter, the critical point is this: the history of the nullification concept is one that hardly anyone actually knows…because if they did, they’d realize how silly they sound. I’ll be debunking the myths about nullification in chronological order.

1798: Virginia and Kentucky’s Isolation

Nearly every American knows about the Virginia and Kentucky legislatures (influenced by Jefferson and Madison) responding to the Alien and Sedition Acts by essentially granting themselves the power to prevent its enforcement within their borders. What is not as well known is the reaction of the other 14 states in the Union. While Jefferson and Madison did not openly acknowledge their roles in the debate, just about everyone knew nullification was a Jeffersonian idea. As such, ten Federalist-controlled states censured Virginia and Kentucky for what they (the other ten) considered an unconstitutional power grab. Even Jeffersonians in other states kept their heads down. It was the Federalists’ attempt to enforce the Acts themselves that made them unpopular – something that none other than Virginia’s Governor (James Monroe) understood, which was why he gladly let the central government enforce the law in his state (nullification be damned) and made sure those martyred to the Acts were known across the nation.

Nullification itself – divorced from one of the states that spawned it – quickly sunk as a political issue. The Acts in question became the Federalists’ millstone, and the Jeffersonians swept to power in the 1800 elections.

Antebellum era: South Carolina’s exception to the Yankee rule

Again, most Americans were taught all about South Carolina’s attempt to nullify the federal tariffs in 1832, and how President Andrew Jackson stared them down. Far fewer are aware that South Carolina was rare in that it was a southern state unhappy with Washington. As it happened, South Carolina did manage to convince Congress to lower some of the tariffs it considered egregious. More to the point, less than four years later, when states across the South rebelled against the (already reluctant) Postmaster General for enforcing delivery of abolitionist mail in Dixie, Washington folded like a cheap suit (Postmaster General included).

In fact, most of the attempts to invalidate federal law involved the Fugitive Slave Acts of 1793 and 1850 – and they came from the North. Among the most famous efforts regarding the former were Pennsylvania (which defended its personal liberty law all the way to the Supreme Court), and New York, where Governor William H. Seward pointedly refused to extradite sailors who had helped a slave escape from Virginia, on the claim that helping a slave escape was not a crime in New York.

Meanwhile, the Supreme Court ruled on Pennsylvania’s attempt to block the 1793 FSA in 1842. Prigg v. Pennsylvania declared that, yes, the FSA was the law of the land everywhere – including Pennsylvania – but, no, the Keystone Commonwealth had no obligation to enforce the law. Needless to say, southerners were not happy. By 1850, as part of the Compromise of that year, a new FSA was passed – one which explicitly compelled northerners to assist in the recapture of escaped slaves whenever asked.

To say the north responded with outrage is a dramatic understatement. In the ten years following, seven states passed new personal liberty laws – in some cases going beyond anything Madison or Jefferson proposed. Massachusetts actually made compliance with the FSA a criminal offense – punishable by fine and imprisonment.

In fact, by 1858, Senator Stephen A. Douglas, desperate to fend off a challenge to his re-election by Abraham Lincoln, even found a way to grant territories the right to block the Dred Scott decision (which made slavery legal in all non-state territories) via “unfriendly legislation.” Thus did nullification spread beyond anything of Jefferson or Madison’s speculations.

Post-bellum: the idea that dare not speak its name

Finally, it is generally a consensus in America that the Civil War ended the debate on nullification once and for all.

Not exactly. Ten years after the War, a lame-duck Republican Congress passed the Civil Rights Act of 1875, with provisions similar to the CRA of 1964. Only southern states had no interest in complying with the Act. Neither the Grant, Hayes, Garfield, nor Arthur Administrations made a serious effort to combat this nullification. The Supreme Court declared the Act unconstitutional in 1883, and it would be nearly three-quarters of a century before Washington even tried to combat nullification in this realm.

By then, however, our neighbors to the north had turned several separate British colonies into the Dominion of Canada, a federation with decidedly strong provincial governments. By the early 1980s, Canada decided to “repatriate” its constitution (i.e., create a new founding structural document not tied to the British Parliament). The result was the Charter of Rights and Freedoms, but many provinces were leery at what they saw as a dangerous concentration of power in Ottawa.

As a result, decades after it supposedly died in the United States, nullification was enshrined in the Canadian Charter – known as the “notwithstanding clause.” The province of Quebec uses the clause to this very day.

This is not to say that nullification is a wise policy. Like most supposedly abstract principles of government, its value depends largely on what it is being used to defend (in the aforementioned Quebec, it is a cover for odious and arguably tyrannical language laws). History shows us that when nullification comes from genuine popular outrage (the north in the 1850s), it has surprising staying power. By contrast, when a small elite grabs hold of it to protect themselves (South Carolina was led by a badly mal-apportioned state legislature in 1832), it is more likely to injure the underlying cause than aid it (see Monroe’s reaction in Virginia, cited above). Where gun rights fall in that spectrum likely depends more on the reader’s view of guns than anything else.

With luck, Washington will be smart enough to recognize that restricting gun rights will do little to nothing to enhance safety in America.

Wait, did I just say “Washington will be smart enough…”? Maybe we should dust off the history books after all…

@deejaymcguire | facebook.com/people/Dj-McGuire | DJ’s posts

  • http://www.brianschoeneman.org/ Brian W. Schoeneman

    Nullification is still unconstitutional and should have no place in modern political discussions. The issue has been decisively decided.

    • http://twitter.com/icanhasbailout Alexis Rose Bank

      It’s been unilaterally decided, at least.

      Can you not see the weakness of a system where the federal government gets to decide unilaterally what powers it has, and does not feel particularly bound by the straightforward English in the Constitution that limits those powers?

      Can the federal government – of which the Supreme Court is a part – really have the lawful authority to decide the limits (or to discard any limits) on its own power? If so, how is that different in substance from a totalitarian regime and absolute dictatorship?

      • http://www.brianschoeneman.org/ Brian W. Schoeneman

        That’s the system we developed, Alexis. The limits on federal power are based on checks and balances and the power of voters to limit its power. The federal government is not an unaccountable monstrosity – we, the voters, have the ability to rein it in when we choose to do so. That’s the difference between it and a dictatorship.

        • http://twitter.com/icanhasbailout Alexis Rose Bank

          What you’re describing is not a Republic, it’s a democracy (aka mob rule). The US is by law a Republic.

          Do you know the difference?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            No, I’m describing a Republic – where we elect our representatives and throw them out when they no longer are representative of our interests. Voters can rein in the government by electing representatives who will appoint conservative judges and actively take steps to limit federal power while in office. That’s the point.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            There’s more to it than that. Representative democracy is still democracy in its essence. While it is true that in practice the US is behaving like a representative democracy, a representative democracy is still not a Republic. There is another, very essential difference between them. Do you know what distinguishes one from the other?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            I have no idea what you’re going for – the lack of a monarchy? The fact that minority rights are protected? That our federal republic protects the rights of states and they can’t be abolished by the national government? There are a lot of definitions of “republic,” so I’m not sure which one you’re quizzing me on.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            The distinguishing feature of a Republic is that it follows the Rule of Law (which is distinct from a government merely issuing laws). A democracy follows the rule of men – anything 50.1% of people agree on (in a direct democracy) or anything the government decides to do (in a representative one) is fair game in a democracy.

            For example, assassinations of citizens without charge or trial, were the US to behave like a Republic, would be unambiguously unlawful. Under the current system, if the three branches decide that assassinating citizens without charge or trial is OK (even if conditions are attached), then that’s considered, in a democracy, to be a legitimate exercise of power.

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            You’ve got a fundamental misunderstanding of the rule of law – laws are not immutable things. Who decides what the law actually means? We do follow the rule of law, but when laws can be changed and interpreted legally, you can’t just say something is violation of the law when those charged with its creation, enforcement and interpretation say it isn’t.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            The issue is not whether laws are mutable but how a law is mutable. If, for example, the substance of the law changes because someone decides to redefine the meaning of the words used therein, that is not the Rule of Law. Only in the case where the substance of the law changes because a lawful process is followed with informed public consent, is the Rule of Law maintained.

            For example, if “No person shall be held to answer for a capital, or otherwise infamous
            crime, unless on a presentment or indictment of a Grand Jury, except in
            cases arising in the land or naval forces, or in the Militia, when in
            actual service in time of War or public danger” – the first half of the Fifth Amendment – doesn’t mean that US citizens can’t be assassinated by the government without at least obtaining the indictment of a Grand Jury (service on which is a peoples’ check on government power, something so important yet so casually discarded), then there would be no point to writing these words at all, would there?

            Yet it seems that, while the text of that Amendment has not changed, and no lawful process has been followed to alter or delete it, the protection it once conferred from political murder is gone. Poof. Now they can kill anyone they please, say it’s “national security”, and that’s it. Could you assert with a straight face that this process is the actual respectable concept of the Rule of Law?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            This isn’t a situation where someone decides to redefine the meaning of words outside of a lawful process. The judicial interpretation of ambiguous words or concepts is a lawful process.

            There’s been a lot of ink spilled about droning, and if things were truly as simple and cut and dried as you present them, this wouldn’t be an issue. I agree with you that I think the argument is weak that we can kill US citizens without trial, but the other side would take issue with the idea that anyone the US has targeted has been guilty of a crime – they were, according to the government, combatants in a lawfully sanctioned conflict, fighting for the other side and thus a legal target.

            Yes, I can say with a straight face that there is still the rule of law here, because the legal processes we have put in place to govern these issues have been followed.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            > The judicial interpretation of ambiguous words or concepts is a lawful process.
            The manufacture of ambiguity for the purposes of initiating an opportunity for reinterpretation may be a legal process, but it is not a lawful process.

            It’s amazing how things which were previously completely unambiguous all of a sudden become so when they become inconvenient to the increasing exercise of power.

            Are you willing to address the key point, which is the removal of fundamental legal protections not by changing the actual law, but by assigning new meanings to words?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            “The manufacture of ambiguity for the purposes of initiating an opportunity for reinterpretation may be a legal process, but it is not a lawful process.”

            Of course it is. This was exactly the process the framers used when they wrote the Constitution. There are inherent ambiguities that were included for just that purpose, the largest of them being the question of who is the supreme sovereign. The ambiguities are apparent on the face of the text.

            I don’t know what meanings of words you’re claiming are being reassigned specifically. But I can point out some pretty obvious examples of where a phrase that was unambiguous has changed its meanings of the years – just look at the 8th Amendment. Punishments that were “cruel or unusual” at the framing are far different than those we find considered that way now – the 8th amendment itself has been used to ban the death penalty, something almost no one in the founding generation would have considered either cruel or unusual. The change happened through lawful and legal processes – case law and Supreme Court interpretation of the law. That’s a fundamental part of the legal process and has been since the founding and before.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            Brian, do yourself (and me) a favor and tune into the ongoing filibuster on C-SPAN, listen closely, and get yourself an education on what the Rule of Law means. Rand Paul is discussing that very topic as I type.

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            I was watching it earlier, but it bored me.

            I don’t need an education in what the rule of law means. We clearly have competing definitions, and neither is superior to the other. And one of the great things about freedom is we are free to disagree.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            The attitude that you have nothing to learn on the Rule of Law from the likes of Senator Mike Lee and Senator Rand Paul is why your understanding of the concept is stunted.

            Our tradition of the Rule of Law does NOT say that anything the rulers decide goes. You do need an education in the subject because your understanding of it is flat-out wrong.

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            No, it isn’t and your misrepresenting my understanding. While I respect Mike Lee’s credentials in the legal department, Rand Paul is a doctor, not a lawyer, and not a constitutional scholar. His opinion is no more informed or authoritative than mine. I spent years studying this stuff in depth. If we were talking about fixing somebody’s eyes then I’d defer to Senator Paul.

            I’m actually surprised at you – you’ve never cared a whit before about someone’s political office. Why do you think Lee and Paul suddenly know more about the rule of law than anybody else because they’re Senators?

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            It’s not because they are Senators that I respect their opinions, but because they are well-informed on the topic, demonstrate actual understanding of the key concepts involved, and have skill in explaining it to others.

            While you were dismissing the event as something you had nothing to learn from, it appears that Senator Paul made history last night. When was the last time that a political act got such broad support from groups and figures as unlike each other as the Heritage Foundation and Code Pink, Michelle Malkin and Van Jones? When was the last time a Republican earned praise from across the political spectrum, not for capitulating yet again to the Democrats, but for taking a principled stand on an issue of real importance?

            Sit up and pay attention because class is in session and Paul is schooling you on how you actually build that broad-based majority Republican coalition.

          • MD Russ

            Alexis,

            You are in combat as a member of a uniformed US military unit. Someone in civilian clothes opens fire on your unit and you. The hostile combatant looks western and yells threats to you in perfect American English. Does the Constitution prevent you from zapping his ass until you have determined that he is an American citizen? If you do determine that he is an American citizen, must you allow him to withdraw until you can secure an arrest warrant and a grand jury indictment?

          • Manny

            Red Herring. If you are under an imminent threat of serious bodily harm you are allowed to defend yourself with deadly force. This had nothing to do with citizenship. Where citizenhip does come into play is if you can be summarily executed on the whim of a politician for ‘supporting the enemy’ by posting mean things online.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            Russ, why do you post such things when you know full well the scenario you described is so far from the reality of what is happening as to be entirely non-germane to the topic?

          • MD Russ

            Manny and Alexis,

            Not a red herring at all. There is an old story they tell in ethics courses: a man is sitting at a bar and a very attractive woman sits down next to him. After they chat for a while, he asks her a question. “Would you spend the night with me for one million dollars?” She thinks about and replies, “yes, I would.” Fine, says the business traveler, lets go to my room and I will pay you $500 to have sex with me.” “What kind of girl do you think I am?” she relies in shock. He says, “I think that we have already established that. Now we are just haggling over the price.”

            You see, an unlawful enemy combatant who poses an imminent threat to Americans is an enemy combatant who has placed himself outside the rules of due process, even if he is an American citizen. Were OBL and KSM any less of an imminent threat to Americans in the summer of 2001 when finalizing the plans for 9-11 than a terrorist fighter pointing an AK-47 at American soldiers. Not under the law. And if OBL had been an American citizen, we still would have been legally justified under the US Constitution and under international law to go in and kill him. Whether we used a drone or Navy SEALS is immaterial. The exact same scenario applies to Anwar al-Awlaki and any other American who places himself outside of the rules of due process by making war on the United States.

            Now, I’m sorry if you don’t like that, but it is the law and it has been upheld in the courts.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            By staggering coincidence, Rand Paul is on C-SPAN right now explaining why your canard is erroneous. Tune in, you need the education.

          • MD Russ

            I have nothing to learn from Rand Paul anymore than I did from Hugo Chavez. Both are/were demagogues who pander with fear, misrepresentation of facts, and resentment to rabble rouse.

    • Manny

      The issue has been decisively decided.

      You mean the Civil War right? So what’s the basis for your argument then, might makes right?

      • http://www.brianschoeneman.org/ Brian W. Schoeneman

        Actually, I meant the Supreme Court precedents since 1809 which have held, in every single case, that nullification is an extra-constitutional doctrine, and since Aaron v. Cooper held in the 50s that nullification was unconstitutional.

        • http://twitter.com/icanhasbailout Alexis Rose Bank

          The Supreme Court, being part of the federal government, will of course vote to expand its own power at every opportunity. The Constitution is supposed to limit this, but if they get the sole say-so over the limits to their own power, why would they agree to any limits at all?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            Because, as part of a tripartite federal government where each branch is striving for supremacy and power with the other two, if they go too far, they will get slapped down by the legislature or the executive. The same goes for the other three. The states have a role to play here too, as a counter to the federal government, but not through nullification.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            That concerns only with divvying federal power between them – the federal government is not just the legislative and executive, it also includes the judicial branch. Why would they not be uniformly unanimous in wanting more federal power, to have more power amongst themselves?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            That’s my point. If the courts go too far, they can have their jurisdiction altered by the executive and the legislature, their budgets cut, or their numbers increased. That’s why Republicans have tried to ensure that our appointees to the court are those who aren’t looking to expand federal power. We haven’t always been successful, but the court has been on a steady path of restricting governmental power for the last twenty years.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            But why would the executive and legislative branch want to prevent the Supreme Court from giving all three branches together, as a single federal government, additional powers above and beyond the ones the Constitution assigns to them? Doesn’t it make sense that the other branches would encourage, rather than discourage, the Supreme Court from tilting the federal/state/people power balance to the federal side?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            Sure, they’d encourage it. And they have encouraged it. That’s why we saw the rapid expansion of the government after the New Deal. But at the same time, we’ve also seen a contaction as the conservative justices have recognized that having an all encompassing federal govenrment is a bad idea.

            At the end of the day, the only protection we have against the nanny state is electing people who don’t want a nanny state. I think, at the very least, that’s something we can both agree on.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            We can 100% agree that we have to elect people who don’t want a nanny state.
            But I do not agree there has been any contraction of federal power at all. On the contrary, over the past dozen years, there has been an expansion of power on the federal level to proportions no one would have imagined possible only a decade earlier (DHS with 2700 tanks and 1.6 billion hollow point rounds? Why exactly? And how did these purchases get past the oh-so-terrible ‘sequester’?)

            The federal government has gotten intimately involved in nearly every aspect of human life, and naturally screwed it up as central planners always do. They now, control your health, your money, the education of your children, your food supply, all the enormous important things – but they don’t stop there. They even tell us what lightbulbs you can use. Could you have imagine that having being done, only 20 years ago?

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            I don’t know about you, but the government doesn’t control my health, my money, the education of my children, or my food supply. I have control over every one of those aspects of my life. Yes, there are government regulations, but no one is telling me when to go to the doctor, what to spend my money on, what to teach my kids or where they should go to school, or what I can eat. This kind of hyperbole gets us nowhere. A majority of Americans read that and dismiss it because they recognize that government regulation, unless you live in New York, hasn’t gotten that bad.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            Brian, you only get to make the choices in those affairs which the government has not chosen to pre-empt. If you think the government is not telling you what to do in some or all of the topics under discussion, you’re in outright denial – you have only the choices the government permits you to have, and those choices get fewer all the time.

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            Again, you’re missing the point. The government telling me I have to have health insurance doesn’t impact my ability to choose which insurance I want. The government telling me I have to send my kids to school doesn’t impact my ability to choose between public, private or homeschooling. The fact that government inspects meat, or bans certain kinds of substances doesn’t mean they are telling me what I can or must eat. Limiting my choices is not the equivalent of telling me what to do, unless they so limit my choices that I have no choice but to accept the only thing out there. That hasn’t happened yet and I don’t expect it to. Regulation is okay – the issue is where to draw the line. And that’s where you and I again probably see eye to eye, which is government should err on the side of as few regulations as possible commensurate with public safety.

          • http://twitter.com/icanhasbailout Alexis Rose Bank

            ” The government telling me I have to have health insurance doesn’t impact my ability to choose which insurance I want.”

            Of course it does. We’ve gotten to the point where we are no longer talking the same language again, if you really believe that. The insurance policy you want is forbidden to exist – you can choose only among insurance policies that fit the government’s demands first, before your requirements and desires ever come into play.

          • MD Russ

            Alexis,

            You are such a goof, LOL. The DHS has not bought any tanks, much less 2,700. What they did do was to solicit a contractor to refurbish 2,700 repurposed military Mine Resistant Ambush Patrol (MRAP) vehicles that were excessed by the Army and Marines when coming out of Afghanistan. An MRAP is not a tank by any stretch of the imagination. It is a blast-resistant cargo truck with a steel boat hull bottom that allows it to climb over rocks and debris with bottoming-out. It is unarmed and is defensive in nature; it has no offensive capability.

            When the military has excess equipment that is not destructive weapons, their regulations require them to offer it free to Federal agencies and then to state and local governments before it can be sold as excess. DHS accepted the vehicles from the DOD to preposition them for use in the case of a domestic catastrophe, such as a terrorist nuclear explosion or a severe earthquake. If we had such an event, would you want the first responders trying to get into the affected area with Ford F-150 4×4′s?

            In this case, the MRAP refurbishment contract was awarded to Navistar Defense in Lisle, IL, the OEM producers of the MRAP. Look them up. They don’t manufacture tanks or any other offensive combat vehicles.

            As for the small arms ammunition, you are clearly ignorant of government procurement practices. That large ammo buy by DHS was for both training and basic load requirements for a broad number of Federal law enforcement agencies, ranging from the Coast Guard, ICE, Treasury and IRS, and even for 300 Special Agents in the Social Security Administration. Federal agencies as a matter of routine bundle such procurements to obtain an economy of scale, thereby saving taxpayer dollars. The lead agency is usually, but not always, the one with the single largest requirement. What do you have against saving taxpayer dollars?

            Alexis, people would take you and other liberty platform advocates much more seriously if you would check your facts instead of reacting blindly to some nonsense posted on places like StormFront and various Paulistinain web sites, which were most of the sources of this conspiracy theory rumor. That is the problem with the Internet: anyone can publish anything no matter how ridiculous and false it is and supposedly intelligent people like you accept it at face value without verification.

        • Manny

          Thanks for the clarification, shouldn’t have assumed.

        • http://www.facebook.com/josephwknowles Joseph Knowles

          “What has been said, in the light of the facts developed, is enough to dispose of the case.”

          In other words, SCOTUS itself said that its pronouncements about nullification were obiter dicta. In any event, as Tom Woods puts it: “Madison’s point above holds – the very structure of the system, and the
          very nature of the federal Union, logically require that the principals
          to the compact possess a power to examine the constitutionality of
          federal laws. Given that the whole argument involves who must decide
          such questions in the last resort, citing the Supreme Court against it
          begs the whole question – indeed, it should make us wonder if those who
          answer this way even understand the question.”

          • http://www.brianschoeneman.org/ Brian W. Schoeneman

            No, what SCOTUS said was that on the merits, Cooper v. Aaron could be disposed of based on the facts they listed before that quote. Instead of stopping there, you should read the next couple of paragraph, where the unanimous court quoted extensively a half dozen other cases and precedents, all of which make it clear that nullification is not a constitutionally acceptable legal doctrine. It’s even clearer in Frankfurter’s concurrence.

            Tom Woods is right and wrong. Sure, the system logically requires a power to examine the constitutionality of federal laws – that’s why state Supreme Courts have the authority to construe the Constitution, and that’s why we have Senators. That doesn’t mean that states, as states, have the ability to nullify federal law. They don’t, and they were never intended to. Even though Madison changed his opinions over time as to the structure of the system, a system that was written to be inherently ambiguous, his original intent was for federal supremacy. Madison wanted it made clear in his original proposals for the Constitution that the Federal government was the only real sovereign, and that the states were not sovereign powers. The system that was actually created through compromise, however, has dueling sovereigns – the states and the national government – and that relationship was not set in concrete or made explicitly clear. That relationship has changed and evolved over time, especially with the passage of the 17th amendment. Joseph Ellis’ book “American Creation” has some interesting discussions of this issue.

  • Scout

    The Chesapeake Republican Committee (or whoever the group is referred to in the link) should be immediately prorogued by the National Committee (people can save their breath telling me all the reasons why mechanically that can’t be done – I’m talking gestures and big principles here) and everyone who voted for the resolution branded with big “CD”s. (Calhounist Democrats). With the possible exception of slavery, it’s difficult to imagine a doctrine more completely antithetical to founding Republican Party purposes and ideals than Nullification. It is a pernicious doctrine that cost this country vast sums of blood and treasure. It is dead and these ghoulish sightings of its moldy remnants should be dealt with by all good Republicans donning garlic necklaces, holding crucifixes in front of them and swift application of wooden stakes through the heart of these walking corpses.

    If Dixiecrat reenactors want to play around with this corrosive doctrine (it’s like little kids playing with ancient unearthed munitions – they have no idea how perilous their situation is), let them put on antebellum costumes (or at least dress like rabid segregationists of the late 1940s, 1950s) and do it somewhere far from the precincts of the Party of Lincoln.

    • http://www.facebook.com/people/Dj-McGuire/1040496090 D.j. McGuire

      Then why did so many Republicans in the 1850s use it to block the Slave Power’s intrusion into their states?

      • scout

        In which of the free states between 1856 and the start of the War (1856 being the date at which one can identify the emergence of the Republican Party as a national political party) did the Republican Party invoke Calhoun and his disciples and their doctrines to prevent the federal government from making them slave states? Opposition to the Fugitive Slave Laws (if that’s your reference) was very much on lines of modern civil rights thinking – civil disobedience as a matter of conscience even with the understanding that it could lead to imprisonment. It cannot be seriously contended that Nullification (or Rescission) have a home anywhere in the Republican Party. This is an absolute. If I am wrong about this, Gresham’s Law has found a startling new corollary.

        • http://www.facebook.com/people/Dj-McGuire/1040496090 D.j. McGuire

          No, Scout, civil disobedience is not what the states did. They *specifically* declared the FSA to be illegal and/or unenforceable in their states.

          • Scout

            The Constitution has few friends when feeble minded people who care little for their country get spun up. But FSA was controlling federal law. The correct approach was to attack it constitutionally in federal courts. There is a strong Whig DNA strain in the Republican Party. Webster rules. Lincoln rules. The Fugitive Slave Act was a despicable compromise with slave interests. But, unless struck down by the courts, it was controlling law. I like to think I would have had the moral courage to go to jail to defy it. I like to think I would have had the constitutional sense to say that simply declaring it to be empty writ within the boundaries of a state or locality would be a direct assault on federalism created by the 1787 Constitution.

            Nullification has no home in the Republican Party. John Calhoun’s body lies mouldering in its grave (which I visited not long ago), and no doubt his soul has better things to do than to hang out in Republican circles.

          • Scout

            By the way, McGuire, I got a bit distracted in the previous response, but I also challenge the underlying factual basis of your assertion that “so many Republicans” used Nullification to invalidate the FSA. There was a lot of moral opposition in the North, but the only legal challenge I am aware of was in a state court in the upper Midwest, a decision that the U.S.Supreme Court overturned. The Vermont legislature did something to express its opposition to FSA, but that was in the early 1850s and wasn’t particularly a Republican effort.

          • D.J. McGuire

            Michigan, Maine, New Hampshire, Ohio, Wisconsin, and Vermont all enacted personal liberty laws in the 1850s under Republican governors.

    • http://twitter.com/icanhasbailout Alexis Rose Bank

      The only reason nullification is even being discussed is because all other avenues for redress of grievances have been tried and failed. But the grievances haven’t gone away.

      The peril is here, whether we would choose it or not. The question is whether one should resist, or bend over.

  • Manny

    I would also point out jury nullification as a complementary idea. Even if federal law is supreme, it’s mighty hard to enforce it if juries refuse to convict. I would suggest reading the first chapter of Lysander Spooner’s “Essay on the Trial By Jury”, freely available online.

  • Kellen

    See – this is the problem. The tea party (the originator of this bill in Chesapeake) doesn’t come up with these things on their own. Someone comes up with ideas for them and says “take this to your local unit and get it passed if you really support gun rights”. Nobody in Chesapeake wrote this bill. Someone taking advantage of ignorant tea party people, who mean well. They sent it down to them and they blindly followed – right off of the ignorant cliff.

  • http://www.facebook.com/josephwknowles Joseph Knowles

    Glad to see that D.J. doesn’t resort to some of the usual objections lodged against the doctrine of nullification, but there are still some errors here.

    “Nullification itself – divorced from one of the states that spawned it – quickly sunk as a political issue.”

    I think that’s a selective reading of history. First, let’s look at what happened in response to the Embargo Act of 1807. Massachusetts and Connecticut both passed resolutions declaring the Embargo Act unconstitutional. Connecticut even went so far as to say that state officials would not “assist, or concur in giving effect to the aforesaid unconstitutional act.” Even if they didn’t use the word “nullify” the concept was clearly there.

    Second, remember the Hartford Convention of 1814-15 at which the New England states asserted that “acts of Congress in violation of the Constitution are absolutely void” and asserted the right of a state “to interpose its authority” to protect against unconstitutional government action. Again, the only thing lacking is the word “nullification” itself.

    Third, recall that Northern states made a concerted effort to nullify the Fugitive Slave Act (which this essay points out). Wisconsin went so far as to quote the ’98 Resolutions in asserting that the US Supreme Court’s decision to uphold the Fugitive Slave Act was void.

    I think to say that nullification died off altogether as an issue after 1800 is not a complete historical picture.

    As a counterpoint, I’ll leave a link to this page where Tom Woods (who has written a well-researched book on the topic) addresses some of the issues raised: http://www.libertyclassroom.com/objections/

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