Progressives Resist Nullification at Their Own Peril

Since the re-election of Barack Obama this past November, interest in the states regaining some autonomy, and nullification specifically, has grown significantly. Thankfully, many are seeing that opportunities to restore some liberty exist with the more local bodies of government. They’re finding that dealing with Washington D.C., especially in electoral politics, is a waste of precious resources. Perhaps the Left doesn’t know this, but at least with members of the Tenth Amendment Center, there’s quite a diverse political background. Nevertheless, they see this trend among conservatives, and characteristically are critical of “Tenthers,” assuming we’re all a bunch of tea-partiers in the Sarah Palin tradition. We’re not.

Dick Polman, who writes for the Philadelphia Inquirer, published a piece with NewsWorks last week entitled “Tea party conservatives and the definition of insanity.” Rife with sarcasm and condescension, he goes after tea-partiers who are flirting with nullification as a means of resisting the Affordable Care Act, and does his best to school them on the constitution and the history of so-called states’ rights. As is typical, his writing reveals that his own understanding of the U.S. constitution and relevant American history is wanting. Here I’ll point out several omissions from his piece, and challenge those still determined to support the federal government that it’s in their own best interest to resist power-grabs from Washington.

He writes that “[i]n their rudderless 2012 incarnation, tea-partyers seem to think they can again turn back the clock to 1832, when South Carolina came up with the nullification idea….” Not to re-hash the whole history of nullification, but South Carolinians didn’t originate the idea. It goes back at least as far as 1798, when Thomas Jefferson and James Madison, in the Kentucky and Virginia Resolutions respectively, promoted a doctrine wherein the states would decide if federal legislation was in accordance with the constitution. If a law isn’t pursuant to the constitution, Madison said the states are “duty bound to resist.”

This leads us to the supremacy clause, which Polman references, and quotes nearly entirely. Long-time readers will have guessed correctly that he omits the operative statement in that clause, which is that only federal laws “made in pursuance [of the constitution]” are the “supreme law of the land.” Such blatant obfuscation is really becoming old, I mean, how many times do we have to go over this?

We then get a rather curious history lesson, and are told that it wasn’t until the end of segregation in the 1950s that “Southern states invoked nullification” and “sought to defy federal mandates on school desegregation.” The supreme court settled the matter, however, and that was the end of it. Polman explains that again in 1982 the issue was addressed, and once again the supreme court decided that states couldn’t reject federal laws.

First, who cares what a bunch of employees of the federal government have to say? They’re not granted some supernatural wisdom simply by virtue of being hand-picked by the same group of executives and legislators they’re ostensibly supposed to check. The impetus for states refusing to comply with unconstitutional federal laws is that they, the Feds, have failed in their task of upholding the constitution. The failure of the supreme court to overturn a law that violates the constitution doesn’t justify the act any more than a criminal violating a law justifies his crime.

Secondly, the attempt to paint proponents of nullification as closet racists because of issues like segregation greatly undermines any credibility these critics may have had. Ad hominem is no way to argue, and the irony of raising the mistreatment of minorities in such a context goes to a whole new level. For it was by nullification that various Northern states subverted the fugitive slave laws in the 1850s. In fact, the refusal by such states to aid in the kidnapping of escaped slaves was cited by South Carolina as one of the principle reasons for seceding in 1861.

The declaration of secession by South Carolina stated that: “Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress [instituting slavery] or render useless any attempt to execute them.” So bring oppression of minorities into the conversation, but understand that nullification is a two-way street, and it’s done more to protect individual rights than just about anything the central government in Washington ever has.

And what about that case in 1982, is it the last time a state challenged the federal government over the constitution? Certainly not. Since 1996 there’ve been concerted efforts to defy the Feds on medical marijuana, as well as the nullification of REAL ID, certain gun laws, the kidnapping provisions of the NDAA, and many more.

Polman is also quick to remind readers of the carnage which accompanied the War Between the States, citing the 750,000 death toll; in effect, substituting that act of brute violence in place of a reasoned argument. This is not only intellectually lazy, but it reveals just how craven defenders of centralized power can be. So common is this appeal to ”might make right” logic that I’m beginning to wonder if, rather than just a poor argument, it’s more of a veiled threat. As if to suggest that, were enough states to push back hard enough, the federal government would respond with force. As quick as these proponents of centralized power are to cite the most destructive and unnecessary war ever fought in the United States, I’m afraid they would cheer such a totalitarian exercise.

The sad thing about progressives rejecting an idea like nullification, or federalism in general, is that it’s a tool equally suited to advance policies long championed by many on the Left. In the recent past and even now, there are efforts at the state and local levels across the country to end the drug war, codify same-sex marriage, curtail foreign occupation, and protect the environment. It wasn’t that long ago when progressives were raging against the policies of George W. Bush, fearful that his brand of neo-conservatism would run roughshod over the civil liberties of minorities in this country, and undermine whatever good will the U.S. had accrued.

Become a member and support the TAC!

If they weren’t so close-minded to diverse ways of organizing society, and ideologically wed to conventional wisdom, perhaps the Left could have begun using ”states’ rights” as a buffer against Right-wing tyranny a long time ago. Perhaps if they had done so during the Bush years we’d be free to travel without our children’s sexual organs being felt up at the airport. Maybe now we wouldn’t be faced with an executive branch so intoxicated with power that it has begun murdering American children and refusing to provide even the slightest pretense of any judicial oversight.

The Obama White House has waged an unprecedented war on whistle-blowers that has extended even to professional journalists. With each successive administration exercising more power than the last, it’s not at all an exaggeration to suggest that the freedom of the press may be further eroded. If a Republican in the tradition of Bush/Cheney or Richard Nixon is elected president, those seen friendly to the other party could be persecuted. By refusing to take a principled position and challenge the federal government now, progressives will open themselves up to usurpations of 1st and 4th Amendment protections not seen in the U.S. in a very long time.

There are some on the Left who are starting to see the benefits of a decentralized system — one brought about through nullification — and hopefully many more will follow. The twentieth century is replete with examples of central governments abusing the rights of minorities, so the burden of proof ought to be on opponents of nullification to explain the merits of a consolidated national government. If anyone is to be accused of trying the same old trick and hoping for a different outcome, it ought to be those advocating virtually unlimited federal authority.