You won’t get very far into a discussion about nullification before somebody invariably torpedoes the principle by associating it with racist segregationists in the south during the Civil Rights movement of the 1950s and 60s.
They make a valid point, at least from a historical perspective. Southerners did appeal to “states’ rights” generally, and nullification specifically, to support segregation. In 1956, 99 members of Congress signed on to the Southern Manifesto to counter the Supreme Court’s decision in Brown v. Board of Education.
The document decried school integration and insisted states retained the power to determine the makeup of their schools, regardless of the SCOTUS decision. The manifesto commended “the motives of those States which have declared the intention to resist forced integration by any lawful means.” Arkansas Governor Orval Faubus put the words into action, deploying National Guard troops to block nine black students from entering Little Rock Central High School in 1957.
Certainly not nullification’s finest hour.
Knowledgeable supporters of the principles of nullification will counter with some historical facts of their own. Northern abolitionists appealed to “states’ rights” and passed nullification legislation to block implementation of federal fugitive slave acts in the 1840s and 1850s. These federal laws deprived any accused fugitive slave of due process. Northern states insisted the fugitive slave acts were unconstitutional, and they passed personal liberty laws to thwart their implementation.
States refused to allow slave commissioners and federal marshals to use their jails to detain accused fugitive slaves. They imposed harsh penalties for kidnapping blacks– even under the “authority” of the fugitive slave acts. Massachusetts made it an impeachable offense for state judicial officers to cooperate with federal slave catchers. These personal liberty laws proved extremely effective in protecting blacks, and few were sent south after their implementation.
Perhaps nullification’s finest hour.
It appears we have a standoff pitting strong moral arguments for and against nullification.
Clearly, we can’t conclusively validate or invalidate the principles of nullification based on their application. In one case, they were used to perpetrate great evil against blacks. In the other, they were applied to protect the liberty and basic human dignity of these same people.
In fact, we should analyze any principle such as nullification within its political, legal and constitutional framework. We can easily defend nullification when we look at it from within the structure of the original constitution, the Tenth Amendment and the ratifying conventions. When you understand the intended relationship between the states and the federal government, nullification naturally follows.
Jefferson convincingly makes the case for nullification in the Kentucky Resolutions of 1798. He explains that “the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government.” He points out that the federal government was delegated specific limited powers and “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
So, what should we do when the federal government oversteps its bounds?
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.
Those opposed to nullification have a hard time refuting Jefferson’s logic. So instead, they resort to tarring the Principles of ’98 with a paintbrush dipped in segregationist rhetoric.
And nullification supporters counter with its application in the abolitionist cause.
Just for fun, let’s look a little deeper at this apparent standoff and see who really holds the moral high ground.
Nullification opponents hope to push supporters into a corner by forcing them to champion morally repugnant segregation along with nullification. But they create a false choice. One can easily embrace Jefferson’s principles, while condemning their application by those seeking to preserve the Jim Crow era. I do not condone every use of a tool when I assert that the tool has legitimacy and value. A murderer using a hammer to bludgeon somebody to death doesn’t negate the utility of the hammer for driving nails. In the same way, one can emphatically reject segregation and racism, while championing nullification as a legitimate process.
But opponents of nullification paint themselves into a corner when they condemn the principles simply because some nasty people used them toward a nasty end. To condemn segregationist application of nullification logically condemns abolitionist application of nullification. To remain logically consistent, those who oppose the Principles of ’98 must oppose them in ALL circumstances, because the principles themselves evidently contain some fatal flaw.
If the anti-nullifier admits it was properly used to thwart the draconian fugitive slave acts, he acknowledges the legitimacy of nullification, at least in some circumstances, and his argument falls apart. In order for the opponent of nullification to hold her ground, she must concede that defying centralized federal power stands as the unforgivable sin, and she must condemn the abolitionist nullifier as a sinner of the highest order, standing in line for the down escalator with Gov. Fabus and his fellow segregationists.
Through its history, Americans have invoked the principles of nullification to protect free speech, to preserve due process, to advance economic justice and to fight military conscription. Yet opponents continue to point to a singular period in history where it was used for a morally repugnant end as cause to reject it in its entirety. As we’ve seen, they must either allow their logic to unravel, or condemn those who risked their own liberty, and even their lives, to defend the freedom of blacks.
The principles themselves stand up to scrutiny. Nullification is historically, philosophically and morally the rightful remedy. So, I will soundly reject the doctrine of segregation, while boldly championing principles abolitionists unapologetically used to advance their cause.
What will you chose?
Latest posts by Mike Maharrey (see all)
- States Should Help Bring Down Obamacare - January 8, 2017
- Why Libertarians Should Support “States’ Rights” - January 6, 2017
- Tench Coxe on State vs Federal Power under the Constitution - November 29, 2016