The Shorter Refutation of the Doctrine of Nullification

Nullification is the doctrine that the individual States of the United States may reject Federal laws such as “ObamaCare” if their legislatures decide that those laws contradict the Constitution.

Nullification is a lie.

Here is a short refutation.

Recently the “Virginia and Kentucky Resolutions” have been used in support of Nullification in the moronosphere, excuse me, the bloggosphere, excuse me the blog-o-sphere-o-rama.

Jefferson and Madison participated in the drafting of these documents because the Federalists (Washington and Adams) had passed the Alien and Sedition acts which appeared to “nullify” the First Amendment…in reaction to the fear of Jacobin far-left terror as had appeared in France. Jefferson had also seen the French government “nullify” the Declaration of the Rights of Man using threats to France by the royalists as an excuse, and he’d seen them “nullify” it in Haiti. He wanted to nullify similar nullifiers.

His “rightful remedy” at the time was not a retail, one by one nullification by individual states of Federal laws they did not like. It was a new Constitutional Convention. The Nullifiers today point to the Virginia and Kentucky Resolutions of Jefferson and Madison for support from two Founding Fathers.

But in 1801, the anti-Federalists Jefferson and Madison found the rightful remedy, Marbury v Madison, in which based on Article 3 of the Constitution, the Supreme Court declared that it had the power to decide if a law was unconstitutional.

Marbury has never been reversed or challenged because it’s logically impossible to do so. Based on a trivial matter of certifying appointees of the outgoing Adams administration, Chief Justice John Marshall and the majority declared that based on Article III of the Constitution, they were the final “nullifiers”: they alone, based on Article III, had the power to decide whether a Federal law was Constitutional.

Based also on the Supremacy clause of the Constitution, the “full faith and credit” interstate clause, and the Fourteenth Amendment, the Supreme Court can also find State laws unconstitutional.

You cannot challenge Marbury without amending the Constitution radically to effectively cancel Article III.

Harry Truman said of the office of the Presidency “the buck stops here”. He meant not that he had supreme power: he knew he did not: he meant that as the Executive he had final responsibility at the cutting edge of American power. But the “buck” of sovereignty stops nowhere in America. People who cry for absolute state supremacy have clearly not read James Madison’s Federalist #15 in which he calls for “checks and balances” and for “no man to be a judge in his own cause”.

“No man should be a judge in his own cause” had driven the Revolution because the American colonists, without representation in Parliament, felt that Parliament, by taxing Americans without giving them representation in Parliament, was being a self-interested judge in its own cause, since MPs could always avoid taxation by increasing taxes on the Americans.

It would obviously be in the interest of what Hamilton and Madison, in the Federalist Papers, called “factions” in charge of the states to Nullify any measure they did not choose to accept, and it would make state legislatures judges in their own cause.

Read this please. It is the penultimate paragraph of the Virginia resolution and as such an action recommendation:

“That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.”

The General Assembly of Virginia is here appealing to “the like dispositions of the other states, in confidence that they will concur with this commonwealth [Virginia]” in this form of nullification. They are calling not for Nullification as did South Carolina and the Confederacy many years on, they are calling for a new Constitutional Convention to check Washington and Adam’s march toward tyranny.

The Kentucky resolution is similar. While it more strongly calls for illegal defiance within one state it also calls for other states to join it in a “general strike” against Alien and Sedition. This was an expression of willingness to step outside the law and as such is sanctioned philosophically and not legally.

Any man, and any state, has the right “naturally” to defy authority like Rambo if he’s got the heart in the sense that nature won’t prevent him; this for Locke and Hobbes was the reason we create government, for they knew that men like Rambo have what were called in the 18th century “passions”, and that independent of the justice of their passions they would be sure to conflict.

Now, the Tea Party, being mostly post-Sixties Baby Boomers sick with disappointment at the fact that there’s no more sugar tit, no more fat economy, apparently never learned that we have passions, that they are hard but not impossible to control, and that they differ: the world is not Woodstock. They instinctively reflect Hamilton’s claim, in the Federalist, that government was instituted to control (yes control) the passions!

Whereas the Nullification resolution of South Carolina, passed by its legislature in 1832, is very different:

“We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled ‘An act in alteration of the several acts imposing duties on imports,’ approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled ‘An act to alter and amend the several acts imposing duties on imports,’ approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.”

This is a completely unilateral act. Nowhere does South Carolina call for a new Constitutional Convention nor invite other states to join it. Instead, it asserts that a state may decide not to obey a law if the legislators of that state don’t like it.

But this is absurd. If a state may legally defy a law, than anyone can do anything and claim that it’s legal according to their inner light. I went to court to pay a traffic ticket once, and the guy before me claimed that the speed limit law was null and void, in his opinion, since nobody drives at 55 mph. The judge, from the bench, said that even if it was true that the 55 mph limit is nullified by the fact that in most real traffic, people to drive safely try to drive around 65 mph to keep up with the average speed, it was not for that clown to decide. It would make him a judge in his own cause.

As a result of Marbury, Nullification ceased to be an issue in the era of effective one-party rule from 1801 to 1820. This era is known as “the era of good feelings” in American history because Jefferson and Madison and the anti-Federalists had an effective monopoly of power through exclusively democratic means, and the Federalists, once Washington died in 1799, could not get elected…and shot themselves in the foot by opposing the war of 1812, popular everywhere except in Federalist New England.

The Nullification which emerged in 1830 as an individual stand by South Carolina was a defiance of tariffs which benefited Northern states because the slave states didn’t want improvements such as canals and railroads since they didn’t want labor to be free or mobile. Basically, they wanted a freight-centric infrastructure such as, later in the 19th century, the Belgians created to extract the riches of the Congo; even today, the railroads, or what’s left of them in that region run to the mines not where people want to go. Whereas to attract free and immigrant labor, the Northern states needed to construct canals and railroads. For many of de ole Massahs down in the South, these were just escape routes for their slaves.

In his old age, James Madison rejected this new form of Nullification. It was based not only on economics, but also on Southern fears that eventually, enough free states would be added to Congress so as to create an anti-slavery majority. Slavery had actually grown since Eli Whitney’s invention of the “cotton gin” a device which removed the seeds from short staple cotton that could be grown in the lowlands of the Appalachians, opening up new land to slaveowners, and while Southerners were genuine enough in their opposition to taxes their real fear was an end to slavery.

You have only to look at Internet postings to see a frightening level of sub literate ignorance and it is doubtful that many Tea Partiers understand the Augustan prose of the Constitution. Only law students know Marbury, but the elite do the populace dirt because it has fostered, through tax starvation of the school system, widespread levels of illiteracy.

Neo Nullification is, I believe, being driven by rich cheese balls who can more readily buy state legislators than Congresspersons, although big money does control the votes of many Congresspeople. This will cantonize and Balkanize the United States into fiefdoms and could lead to civil war.

On a personal note, I sat next to right wing rocker Ted Nugent in high school. He was expelled in 1966; my favorite teacher threw his ass bodily across a cafeteria table calling him an “instigator”.

The Nuge believes that each one of his own passions are God given and that his very shit doesn’t stink. He didn’t want to serve in Vietnam so apparently he showed up at the physical stinking of piss, vomit and urine. He didn’t want to be a father so his Mom got the girls he knocked up paid off.

But his liberation means that he legislates for the Other. Apparently, today, he doesn’t do drugs or chewing tobacco (any more?) so he fulminates against “wastos”. He calls for the President to be assassinated.

He calls upon the Founding Fathers but they would find him a thing of darkness. And from a time when any one of them, at any time, could contract smallpox or milk sickness or TB and die in agony without any painkillers, the Founding Fathers would laugh to scorn the very idea that it’s a right not to buy health insurance so as to save our medical system, which is cracking under the strain.

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