by Steve Palmer, Pennsylvania Tenth Amendment Center
“The more I think about language the less possible it seems to me that we ever understand one another.”, Kurt Godel
If you’ve been paying attention to web coverage of nullification in recent months, you may have noticed the ongoing dialog among the Heritage Foundation‘s Matt Spalding and several Tenth Amendment Center writers. Specifically, Dr. Spalding wrote Rejecting Nullification: Idaho Draws the Constitutional Line and Nullification Fails, Again (This Time in North Dakota), stating his opposition to nullification in both articles. His Idaho article was among the reasons that led to my article, Proposing a Nullification and Interposition Framework.  Dr. Spalding’s North Dakota article was addressed in Nonsense – analyzing the Heritage position on nullification, by the Tenth Amendment Center’s Michael Maharrey. Tom Woods also responded to the North Dakota article, here.
In both the Idaho and the North Dakota articles, Dr. Spalding rejects nullification by name, but endorses ideas which fit my idea of nullification, so part of our disagreement is clearly definitional. One puzzle, then, is to figure out what Dr. Spalding means when he uses the word nullification. In his Idaho article, Dr. Spalding writes,
Nullification is the argument that individual states have a constitutional authority to void federal laws. John C. Calhoun made this claim back in 1832 and James Madison vehemently opposed it during the Nullification Crisis leading up to the Civil War.
And
So how do we enforce the Constitution over unconstitutional laws? The document itself lays out the best options: change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution. But there is no state nullification clause.
And
Jefferson did use the term “nullification†in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution—admittedly and of necessity outside the constitutional structure.  Even so, as a practical matter, after declaring the offensive laws “void and of no force,†Kentucky only called on other states to “unite with this commonwealth in requesting their repeal†by Congress.
In his North Dakota article, Dr. Spalding writes,
Loose talk claiming a state’s independent authority to declare federal law null and void at will not only confuses the situation but also undermines our constitutional credibility. States have the right–indeed, the responsibility–to push their own constitutional opinions about federal laws. They can go so far as to challenge those laws and “interpose†themselves (as James Madison advocated) between the federal government and their citizens.
I have to admit that after reading both of his essays a number of times, I remain confused about what Dr. Spalding means by his use of the word nullification. I do find it ironic that he can object to nullification saying, “there is no state nullification clause”, but simultaneously support interposition. Perhaps it would help to clarify things if he points us to the “state interposition clause” in the Constitution?
According to the online etymology dictionary, the word nullification has its origins in the Kentucky Resolutions, so Dr. Spalding appears to be on the right track when he references that document. Let’s see what Jefferson had to say,
…that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy:…
So when the general government abuses its delegated powers, Jefferson believed that the constitutional remedy would be a change by the people. However, when the general government assumes an undelegated power, nullification is the proper response. But what did he mean by nullification? Apparently, this was the word’s first use. He goes on to say,
that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits:
So unsurprisingly, nullification seems to have been derived from to nullify – “to esteem lightly, despise, to make nothing”. Keep that definition in mind and notice the fancy footwork when Dr. Spalding writes, “Even so, as a practical matter, after declaring the offensive laws ‘void and of no force,’ Kentucky only called on other states to…” – So as a practical matter, Kentucky just nullified the law – that’s all – Nothing to see here.
“A ‘No’ uttered from the deepest conviction is better than a ‘Yes’ merely uttered to please, or worse, to avoid trouble.”, Mohandas Gandhi
If Dr. Spalding is saying that the Constitution doesn’t give the states the right to nullify Unconstitutional federal laws, I agree with that, but to me, that’s not relevant. The question is, does the Constitution prohibit it? Article I, Section X of the Constitution lists the powers which are prohibited to the states. Nullification is not in there. To reason about this, we need to think about black lists and white lists in the Constitution. For the most part, the Constitution provides a white list of powers for the federal government and a black list for the states. This means that if a power is not prohibited to the states, then it is allowed. If nullification is not prohibited, then it is allowed…. and nullification is nowhere prohibited by the Constitution. We already saw Jefferson’s view on nullification. Out of curiosity, with a Jefferson type definition of nullification in mind, what does the Heritage Foundation say about this question? According to the Heritage Foundation, does a state have the right to say, “no” to the federal government?
Well, Robert Moffit, at the Heritage Foundation says,
“if a state legislator sincerely believes that the health care law is unconstitutional, he is under no obligation to vote one red cent of state taxpayers’ money to enforce it. For those who take their oath seriously, it is not even an option.â€
Kathryn Nix and Margot Crouch, at the Heritage Foundation, write,
State legislatures and governors can be especially effective in taking the lead against the bad policies enacted under Obamacare.
Matt Spalding, at the Heritage Foundation (remember him?) says (at around 2:25),
the key lever of that living Constitution are the courts and judges. Whatever the judges say is in the Constitution. They’ve got the final say, they (progressives) claim, to what this living Constitution means. That really undermines the whole idea of limited Constitutionalism; ignores the idea of principles behind that sense of Constitutionalism and really turns over our whole self-governing system to judges… and that’s one of the key problems we have today.
And
The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius).  A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act.
So we’re back to the definitional thing. Spalding supports Health Care Freedom, Firearm Freedom, Incandescent Light Bulb Freedom and REAL ID resistance, but claims they are not nullification (without really explaining what he means by his use of the word). So let me quote from the text of Pennsylvania’s proposed Firearm Freedom Act (HB752),
Prohibiting certain firearms, firearm accessories or ammunition from being subject to Federal law or Federal regulation.
And
A personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Pennsylvania and that remains within the borders of Pennsylvania shall not be subject to Federal law or Federal regulation, including registration, under the authority of Congress to regulate interstate commerce.
Does this sound like what Jefferson might have meant when he crafted the word nullification? Does this “make nothing” of federal regulatory power inside the state’s border? I invite you to explore Pennsylvania’s Health Care Freedom and Real ID legislation to see if those bills propose to “make nothing” of Unconstitutional federal powers or not.
Lastly, let me quote from the North Dakota law, about which Dr. Spalding assures us, “Call it what you will, but it’s not nullification.”,
No provision of the Patient Protection and Affordable Care Act or the Health Care and Education Reconciliation Act of 2010 may interfere with an individual’s choice o f a medica l or insurance provider except as otherwise provided by the laws of this state .
You tell me? Does this purport to “make nothing” of an Unconstitutional federal action? After reviewing all of these articles, the best guess that I can come up with is that the Heritage Foundation position on nullification boils down to, “Do it, but don’t call it nullification”.
Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
- http://www.constitution.org/cons/kent1798.htm (Kentucky Resolutions, 1798)
- http://www.tenthamendmentcenter.com/2011/05/07/nonsense-analyzing-the-heritage-position-on-nullification/ (Michael Maharrey, May 7, 2011)
- http://www.heritage.org/Research/Lecture/2011/03/Why-the-Health-Care-Law-Has-Sparked-a-National-Debate-Over-First-Principles (Robert Moffit, March 14, 2011)
- http://blog.heritage.org/2011/03/16/obamacare-and-the-fight-to-preserve-americas-founding-principles/ (Kathryn Nix & Margot Crouch, March 16, 2011)
- http://pennsylvania.tenthamendmentcenter.com/2011/02/securing-the-blessings-of-liberty/ (Steve Palmer, Feb 25, 2011)
- http://pennsylvania.tenthamendmentcenter.com/2011/04/proposing-a-nullification-and-interposition-framework/ (Steve Palmer, Apr 9, 2011)
- http://pennsylvania.tenthamendmentcenter.com/2011/05/pa-tenth-amendment-legislation-status-may-14/ (Steve Palmer, May 14, 2011)
- http://blog.heritage.org/?p=53531 (Matt Spalding, March 2, 2011)
- http://blog.heritage.org/2011/05/03/nullification-fails-again/ (Matt Spalding, May 3, 2011)
- http://www.tomwoods.com/blog/heritage-foundation-to-nullifiers-drop-dead/ (Tom Woods, May 4, 2011)
Here is one of the problems with nullification, not that it is unconstitutional, but that since states are considered obligated or unable to leave the union, nullification is not properly framed. If nullification is not used as a reminder that the federal government is supposed to be for the benefit of the states, and not the people of a nation, then it will not work. Frankly the whole thing of abstract and artificial creation such as the states being able to hold people within a framework of government made by dead people 200+ years ago is absurd. That a constitution can be written without a renewal clause forcing the agreement to be revisited and re-ratified and possibly rewritten at that time dooms it to tyranny from the beginning.
Jefferson agreed with the point you make and wrote on it. The thrust of his opinion is that Constitutions should not be intended to last a long time and that they should be reviewed and changed periodically, according to the desires of the people. While this does not transform the Constitution to a living document, it certainly underscores the process of how it dies.
"The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living." –Thomas Jefferson to William Plumer, 1816. ME 15:46 (via – http://www.democraticunderground.com/discuss/dubo…
As I recall, he applied the principle that the earth belongs to the living to the national debt, too. Showing why it is immoral for one generation to run up the debt and leave it for future generations to pay. For example, why should today's children be left holding the bag for the debts of the baby-boomers after they've gone?
I'm not sure I see how this is a problem with nullification, though…
Steve, as I said, it's not properly framed. It's not just that state governments have the right to resist unconstitutional encroachments, but that states have the right to say,"hey, keep it up and we're gone. So part of the education necessary for nullification to really be successful, is that we simply are not a nation, even though Lincoln and the reconstruction pretty destroyed that understanding. Myself, I see the US constitution as something done away with as a result of Lincoln's War. It's really absurd to say that an instrument designed for harmony and protection can be used to foster conflict and kill hundreds of thousands, and then force states to submit to changes in that instrument.
Surely the basic idea of nullification is for a state, within its own borders, to "nullify" — literally, "to make nothing out of" [nullus + facere] a particular unconstitutional federal act/law that's been unconstitutionally imposed on a particular state to the detriment of it and it's people. Is it not that simple? Am I missing something? Would Jefferson and Madison have disagreed?
[Sorry, I think this is clearer:]
Surely the basic idea of nullification is for a state, within its own borders — within its own jurisdiction –, to "nullify" — literally, "to make nothing out of" [nullus + facere] — a particular unconstitutional federal act/law that's been unconstitutionally imposed on it to the detriment of it and it's citizens. Is it not that simple? Am I missing something? Would Jefferson and Madison have disagreed?
It seems straight forward to me, too. Apparently, not everyone agrees.
Madison absolutely disagreed with nullification. His "Notes on Nullification" made it completely clear that he strongly denied that a state may nullify an act of Congress. He explained at length that his Virginia Resolution did not support nullification and that the Constitution does not provide for nullification. Nullification gets no support from Madison.
Jefferson was not a Framer of the Constitution. He wasn't at the Convention — he was in France. So he provides no insight on the intent of the Framers. His Kentucky Resolution draft mentioned nullification, but that was dropped from the final version, which did not purport to nullify federal law, but merely called on the other states to advocate repeal. The other states overwhelmingly rejected Jefferson's resolution, with no state supporting Kentucky, one state (Virginia) supporting a weaker version of Kentucky's position, and ten states opposing Kentucky's position. Kentucky's follow-up resolution a year later asserted the right to nullify, but didn't do it, instead saying that Kentucky would bow to the laws of the Union. So nullification was rejected from the start. It has never been accepted.
Right, No support at all from Madison, like in the Madison report of 1800, where Madison wrote,
(does "arresting the progress of the evil of usurpation" sound something like "to make nothing" of an unconstitutional federal action?)
You might also recall that Madison and Jefferson were collaborating by mail when they composed the Virginia & Kentucky resolutions, so it's clear that they were not in disagreement at the time.
Anyway, you're changing the topic. Your claims have already been adequately refuted in other Tenth Amendment Center articles and in Tom Woods' book, "Nullification". We don't need to rehash these in comments. If it's your claim that the Northern States should've complied with the Federal Fugitive Slave acts and forcibly returned escaped slaves to captivity instead of nullifying those barbaric laws as they did during the early / mid 1800s, we're not likely to make much progress anyway.
This article wasn't intended to justify nullification. That's already been done. The topic of this article was the puzzling position taken by the Heritage Foundation. The Heritage Foundation supports the Firearms Freedom Act, the Lightbulb Freedom Act, Real ID resistance, Health Care Freedom Acts… things I would consider to constitute nullification, yet they reject nullification by name. The intention of this article was merely to shed light on this curious contradiction.
In drafting the Virginia Resolution, Madison deleted a passage that would have said the Alien and Sedition Acts were "void, and of no force and effect." He took this out because he didn't think a state has the power to nullify an act of Congress.
Nothing in Madison's Report of 1800 says that a state may legally nullify an act of Congress. Rather, The Report of 1800 said that a state may judge whether an act is constitutional and may declare its conclusion, but this is just an expression of opinion without legal effect. Such a declaration is designed to stimulate debate and enlist the support of other states:
"But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.
"Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged."
So, Madison was talking about the states' declaring their opinions, not nullifying federal law. That's what the Virginia Resolution did – it expressed Virginia's opinion and called on the other states to agree. They didn't.
When Madison asserted the right of interposition, he was not claiming that a state may nullify an act of Congress. He was using that term to refer to joint action by the states to respond to unconstitutional action by seeking repeal, by introducing a constitutional amendment in Congress, by calling for a constitutional amendment, or in the last resort by revolution. He was not asserting that a state may nullify federal law. Madison's "Notes on Nullification" make this clear. The Notes on Nullification describe the Report of 1800 by saying that it provides "certainly not a shadow of countenance to the doctrine of nullification. Under every aspect, if enforces the arguments and authority agst such an apocryphal version of the text." The Notes also say:
"But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined."
The Notes on Nullification expand on this theme at length. The bottom line is that Madison decisively rejected the idea that a state may nullify federal law.
As I said, Madison's Notes on Nullification, written almost 40 years after the Virginia resolutions, have already been adequately discussed by Woods and others and it's not really the subject of this article.
Anyway, we can toss quotes around in comments all day long and change no one's opinion. Let's try a different test. Elementary logic dictates that if the states are required to comply with unconstitutional federal actions, then that requirement can only be imposed by the Constitution. If the requirement is not in the Constitution, then the requirement doesn't exist. So, please show us where the Constitution requires the states to follow all federal laws and directives, whether Constitutional or not.
(note… Please don't try to retreat to supreme court precedent. It is an obvious fact that the supreme court cannot claim a power for itself that was not first delegated in the Constitution.)
Steve, this is an important read to help understand the opposition…con law is just repeating a simple mantra.
http://www.tenthamendmentcenter.com/publications/from-interposition-to-nullification-peripheries-and-center-in-the-thought-of-james-madison/
I wonder why opponents like this rarely give their name? I know who they are, but when they make absurd commentary they hide….
Thanks Michael, but the link got cut off (at least in my browser). Possibly due to the length?
I'm guessing this is where you were pointing me – http://goo.gl/5oX41 –
"From Interposition to Nullification: Peripheries and Center in the Thought of James Madison, (# Recanting ’98), By Kevin Gutzman"?
Hopefully my edit worked! If not, posting in hotline for you…
The edit worked and I saw it in the hotline too. Thank you!
Spalding's two blog posts make a good point. There are major differences between legal nullification of a federal statute on the one hand, and efforts to resist, overturn, or limit enforcement of the statute on the other hand. Conflating those two concepts is analytically flawed.
Legal nullification, as advocated by Calhoun and others, is the theory that any state has the final, conclusive, unreviewable power to determine that an act of Congress is unconstitutional and to prevent enforcement of the act within its borders. The Framers never intended any such thing and it is not a valid principle under the Constitution. Spalding correctly distinguishes legal nullification from a variety of other measures designed to resist, limit, or test federal statutes. When a state declares that it will not assist in enforcing a federal statute, that is not the same as preventing the federal government from enforcing it. Sometimes a state takes a position that a federal law is unconstitutional and cannot be applied, with the knowledge that this position ultimately will be tested in court and with the understanding that the courts have the last word. That's not nullification, not as Calhoun advocated it. When a state legalizes medical marijuana, it does not attempt to nullify federal statutes and cannot prevent their enforcement.
I realize that the folks on this website like to expand the definition of nullification to include all those things. But I think those things are analytically different from legal nullification and it is not helpful to combine them and discuss them as a single concept.
Lawyers, widely despised by the general public, generally do place great concern in such trivialities…the pulic at large, though, is concerned about what happens in practice.
Whether the issue is weed or natioanl I’d card, or the tsa….when enough people say no to the Feds, and enough states back them up, theres not much that dc can do about it. And when they can barely enforce their unconstitutional acts, the public sees that as nullified.
Thanks for your input, though, lawyer…
Now that's progress! If you want to use nullification to mean, "legal nullification" elsewhere, please do (although I'd suggest that someone needs to do a better job defining that term 'cause as used by Spalding, it's very confusing), but here on this website, we can feel free to use the definition used by "the folks on this website" (and Jefferson). Under that definition, it now appears that we are in agreement that nullification is a valid recourse for the states when confronted with an unconstitutional federal action. Welcome to the resistance! So let's start talking about "when", not "whether" to use nullification. IMO, a much more useful topic of debate.
BTW, I note that you didn't respond to my earlier comment. If you still want to claim that "legal nullification" somehow violates the Constitution, you have to show us where it is prohibited. Since the Constitution uses black lists (as in article I, section X, for example) to restrict the states' powers, if a power is not explicitly prohibited, then it's not prohibited at all. So where in the Constitution did the states agree that they would not act to prevent the federal government from performing unconstitutional actions?
Much more positive than, me….I have to keep that perspective in mind! You\’re absolutely right, though…
lol. I'm amazed by the time stamps. Your comment wasn't there when I started typing. Looks like I was proof reading for 55 minutes!
Kurt Godel never made that quote. Your credibility is in complete tatters you disgusting frauds.
I think this was probably my source for that quote, "GÖDEL AND THE NATURE OF MATHEMATICAL TRUTH [6.8.05]", http://www.edge.org/3rd_culture/goldstein05/golds…. Perhaps he was paraphrased in that article, but Godel was reported to have made the statement during a conversation with "the mathematician Menger" (Karl Menger, I presume).
Isn't the remedy implicit in the words of the Tenth Amendment? Is there not, in the words of the Tenth Amendment, an implicit admonition to each state — in the face of unconstitutional federal acts/impositions/tyrannies (whether executive, legislative, judicial or some combination thereof) imposed on it and its constituents — to nullify those unconstitutional federal acts/impositions/tyrannies?
State legislators and governors: For the sake of your state, your constituents, and the Constitution and Bill of Rights, please nullify accordingly.
I touched on this question briefly in an article back in December. Basically, I think that it's a self-correcting system.
http://www.tenthamendmentcenter.com/2010/12/27/do… –
Yes, something like that. At least you see the flaw in the reasoning people use. Your answer is that the self-correcting mechanism is either at the ballot box or through some other undisclosed mechanism. This flaw does not negate the propriety of nullification, though. It just leads to a proper introspection that the matter does not square with the concepts of "dual" or "multiple" sovereignty.