by Jeff Matthews
Is nullification authorized? The answer is “Yes,” but not based on any argument I’ve seen so far from its proponents or opponents.
From what I have seen of both sides of the argument, both sides suffer a flagrant flaw in logic.  My purpose is to clear it up.
Before I do, I want to express my personal point of view on the nullification issue. I think it is an imperfect concept, but that it can and should be used to further our efforts to clean up a system of government on the national level that has become utterly irresponsible, corrupt and inept at serving the needs of our respective societies as reflected in the diverse populations among our nation’s 50 states. Nonetheless, I am going to take some shots at the logic of both its proponents and opponents.  Proponents may not like my points, but I nevertheless think they are useful in putting our hands around the issues that are at stake and in avoiding the pitfalls of getting caught hostage in the trappings of the “other guy’s” logic.
What is nullification?  While people can cite to different acts which seem to fit the process, isn’t it obvious that nullification is really a process of engaging in civil disobedience?
People use rational processes to support their disobedience, and those processes can include a claimed reliance on God, Natural Law, fairness, reason….. basically, anything which seems to speak to the hearts and reason of their audience.
In our case, we Tenthers support the nullification principle by pointing to language in the Constitution and pointing to writings of those considered to be authorities on the meaning of the Constitution. But let’s engage in an exercise to see how important those authorities really are.
What if the Constitution was written differently?  What if all the founders were in unison and there was no doubt that, as written, the Constitution authorizes the federal government to do whatever it wants?
What would we do if that was the case?  Obviously, we’d all say, “Well, I guess the feds are right.” And then, we’d smile, sing “Kumbaya” and go home. I mean, really?
No.  I don’t think so.  So, my point is proven.  It doesn’t matter what words we find (or don’t find) on old paper.  Disobedience is something we do when we think or feel that a certain authority is unjust.
And so, here we are, today, going back to the Constitution, an admittedly yellowed parchment, as well as writings of Jefferson, Madison, and on and on….. looking…. looking….. scouring for proof.  Proof of what?
My guess (and I know it’s just a hunch) is that if you’re looking for writings from authors over 200 years ago to show proof that our government is in a mess today, you most definitely concluded our government was in a mess before you began your search. So, why do you need Jefferson to tell you the government is in a mess? Certainly, you figured that out on your own.
Oh, that’s right.  You don’t need Jefferson or Madison for that.  You need them to tell you it’s right to disobey an unjust federal government.  After all, they did say that.  So, you want to mimic their logic to support your argument, and with those words in your arsenal, you can lead the world to the inescapable conclusion that nullification is the rightful remedy.
Jefferson might provide some good support.  Same with Madison.  But what you will not find in their reasoning is anything particularly transcendental or revealing.  They simply did what they did, articulated their reasons for it, and that was that.  Their reasoning is absolutely arbitrary and cannot be properly considered outside of the context in which they stated it.
In their cases, it had to do with the Alien and Sedition Acts.  As heinous as these Acts were, it is easy to conclude that nullification is, indeed, the proper remedy. After all, who among us thinks it just and right to criminalize speech which criticizes the government?  I’d say that’s a pretty easy call. However, it is an exercise in futility to take from this any conclusion that nullification is always proper.  Madison addressed it when he stated in the Virginia Resolution:
…in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose…
In the Virginia Report of 1799, discussing its resolution, the same type of language made clear that it was not the intent of the legislators to declare that the states had unfettered rights to engage in nullification.  There, it was written:
It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence.
Notice the adjectives which are italicized? Some of these were italicized in the original (dangerous, palpable and deliberate), while I italicized the others to make a point.
What is a “light” case of usurpation?  What is a “transient” case?  Apparently, such “light” and “transient” cases do not justify nullification according to Madison.  But why?  Why shouldn’t every case call for it?  If every case does not justify nullification, and if the Virginia legislature was right to say this, then, who is supposed to be the arbiter on what is a “light” or “transient” excess? Hmmm….. Would that be the states?  Certainly, it must be, because we know for a fact the federal government is unlikely to admit it engaged in a usurpation in the first place.
So, okay. It’s the states.  So, if a state engages in nullification, here’s what we expect it to say in its defense: “It was really no big deal.  We could have lived with the light and transient excess, but what the heck….. we just simply felt like we had to go find something to nullify.” Of course, that would never happen.  If a state nullifies, it is going to justify its action because the transgression was “simply not bearable.” So, by definition, no act of nullification will ever be wrong because no state, acting as its own arbiter, would ever do so wrongly (“You’ll just have to trust us here.”)
To highlight further the flaw in the reasoning, how do these fine folks reach their “final” consideration on the basis of a “partial” or “hasty” consideration?  How many times have we seen legislators proclaim they came to the right conclusion in a “partial” or “hasty” manner? I can just see them: “We decided to nullify after a 5-minute debate.  There was a lot to do on the agenda, including a resolution to wish Mabel Sinclair’s aunt a happy birthday. She’s such a nice lady, you know.”
We also see some similar language in the Kentucky Resolution of 1799 (which revisited and re-commented on its 1798 Resolution):
That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal
He we go with the adjectives again.  More assurance that, “We don’t care to protest minor usurpations, but this one was a biggie!  We know we’re our own judge on this matter because after all, our state must be the final arbiter. What’s that you say?  Oh?  You’d like to have a little input.  No thanks.  You’ll just have to trust us. After all, our state’s judges are really, really good. But your judges?   Myehhhh…”
I don’t mean to be overly critical of one side of the argument here.  This same flawed approach comes from the other side.  Those who think the United States Supreme Court is properly vested with authority to decide whether the federal government has exceeded the scope of its authority are equally wrong.  Simply put, you can’t vest one party to a contract with the sole authority to determine whether a breach occurred, who breached, and what the rightful remedy should be.
So, basically, what we have is a theory of civil government that just does not seem to work from a purely logical perspective. Neither side can be trusted, and both are subject to error.
For those of you who are enamored by the concept of Natural Law, here’s a natural law for you:
Natural Law, Article 1, Section 1:Â To the victors go the spoils.
In all the debate over nullification, the real question is, “Is the process of nullification, itself, null?” Well, it so happens this question was addressed in the 1868 Supreme Court opinion of Texas v. White, 74 U.S. 700 (U.S. 1868). In that case, the Court addressed the validity of Texas’ secession from the Union.  Relying on Natural Law, Article 1, Section 1, the Court wrote:
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law.
(emphasis added).
The Court essentially held that an act of a state that contravenes the Constitution is null and void.  This same principle would hold that an improper act of nullification is, itself, null and void.  This makes perfect sense. After all, if a person thinks something is Constitutional, then, in his mind it must be Constitutional.  That’s how arbitrating and judging works.
More importantly, the Court held that Texas’ act of secession could have been sustained only if Texas won the Civil War.  This is simple and undeniable.  Again, Natural Law, Article 1, Section 1 states, “To the victors go the spoils.” War has an uncanny way of providing answers.  There is nothing more powerful than subjugation when it comes to prevailing in a dispute.
So, this is why we have this Heritage Foundation guy, Spalding, who says nullification is not authorized. In trying to support his conclusion, Spalding says:
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.
(emphasis added).
Whoa!  Hold on a minute there, Mr. Spalding.  Let me see if I can get this straight.  There is this natural right to revolution.  Okay.  Got it.  And in the course of these revolutions, we can blow up things, kill people and subjugate the survivors among our enemy. Got it. But there couldn’t possibly be…. no way….. not under any form of logic….. not in a million years, a right to put a sentence together which says, “Your laws are not enforceable and will not be enforced here.”  Instead, we have to skip that step and go straight for our guns. Errrr……  Got it! “Plus one” for Spalding.
Spalding’s error, which coincidentally seems to be a similar error made by nullification proponents, is in looking at the problem through a microscope.  How does a person possibly look at life through two sets of laws?  One set, the Natural Law series, says that people have a right to rebel and engage in revolution to fix injustice.  The other set, Constitutional and statutory law, does not authorize people to do that when its own procedures prove futile.  At least, that’s the way they look at it.
The fact is that people, in the end, do not really care what words are written on paper and what reasoning process was used to derive them.  What they care about is their general feeling of “Is this right?”  On that basis, they will do as everyone else does – Madison and Jefferson included.  They will decide how important the issue is to them, and they will choose their response based on how strong their feelings are that a change needs to be made or that they should at least not suffer the consequence of an injustice. I can assure you that Spalding most certainly must have, at some point somewhere, decided he was going to refuse to obey a particular law or rule because he thought it to be unjust.  But now that he’s all happy again, nobody else can have the same privilege.
People who are relatively comfortable with the status quo will tend to rely much more often on the current statutory and case law. People who are less comfortable will look for other sources – be it Natural Law, religious law, Original Intent, etc. These are thought of as distinct principles, but they are not.  They are nothing more but concepts which are readily available for the plucking when a point needs to be made.  However, when you carefully listen to both sides and you watch the debate techniques they use, it is easy to see what is happening.  It is all art of persuasion.  There is no “truth” in either approach.  And most importantly, none of it really matters all that much.  No matter how much you might try, you can’t make me like broccoli.  But if you’re strong enough, you can make me eat it. That’s the moral.
In summary, it ought to be obvious that neither side can really “prove” or “disprove” the propriety of nullification theory.  The essence of the debate is invariably based on the argument that “my side gets to decide.”  But clearly, we can see that no party to a compact can be the sole judge as to its own authority.  A state no more ought to be the judge of its conduct under the Constitutional paradigm than the federal government ought to be the judge of its own. The whole idea that either side of the argument thinks it can win on this issue is, for lack of a better word, not exactly deep.
It is what it is. It is a no-man’s land.  Nothing the Constitution says, and nothing any founder or anyone else says or has said, will change that.  I think the U. S. Supreme Court got it right in Texas vs. White. Might makes right.  To the victors go the spoils. Nullification gets its authority from winning. The loser can just take a hike.
Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.
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