Authors note: The following is a response to an op-ed by US News opinion editor Robert Schlesinger. To his credit, he published a shortened version as a letter to the editor. The published version had to be cut quite a bit to meet their space requirements. Following is the original uncut response.
If James Madison and Thomas Jefferson strolled down the streets of Washington D.C. today, listening in on current political discourse, they would likely declare conventional wisdom holding the federal government supreme in all it does a “crackpot post-antebellum legal theory.”
Even Alexander Hamilton would undoubtedly express shock. After all, he was one of the first defenders of the Constitution to point out the limits of supremacy in Federalist 33.
“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
Thirteen independent sovereign political societies came together to form the United States, and they delegated specific powers to a general government. All other powers remained with the states and the people. There was no debate on that matter. Both supporters and opponents of the Constitution agreed the federal government was to remain limited. The ratification debate revolved around one question: would the Constitution actually create the limited government intended?
Known as the “Father of the Constitution,” Madison worked tirelessly for ratification. When anti-federalists insisted the federal government would not remain constrained, Madison argued that the states would serve as the check on its powers.
“Should an unwarrantable measure of the federal government be unpopular in particular State…the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Here we find nullification’s roots before the Constitution was even ratified.
The principles serve as Madison’s means of opposition – powerful and at hand. Quite simply, state nullification is any action rendering an unconstitutional federal act null, void or simply unenforceable within a state.
Over the last several years, Americans across the political spectrum have embraced the principles, if not in name, at least in practice. States seeking to nullify violations of the Second Amendment recently spun the idea into the news cycle, but California began its nullification efforts back in 1996 with the passage of Prop 215. Today, 19 states have legal medical marijuana programs, despite Supreme Court-approved federal prohibition. Last year, Virginia outlawed state cooperation with indefinite detention under the NDAA. And the national ID program envisioned under the Real ID Act of 2005 still does not exist. Under the leadership of the ACLU, states simply refused to implement it.
Still, most American commentators and pundits continue to vilify nullification, branding it a wacky discredited legal theory concocted by John Calhoun to support slavery.
In fact, Madison and Jefferson first formalized the principles in 1798, responding to the Alien and Sedition Acts. And while nullification did play a role in the Civil War, it was not the one most Americans think. In fact, northern states claimed state sovereignty to block the Fugitive Slave Act of 1850. They passed liberty laws, effectively nullifying this disgusting federal “law” denying due process to any black person accused of escaping slavery. They were so successful, South Carolina accused northern states of enacting “laws which either nullify the Acts of Congress or render useless any attempt to execute them” in its Declaration of Causes for secession.
And while some argue that the Civil War “settled” the nullification argument, it did no such thing – no more than George Bush’s war “settled” anything legally or morally in Iraq.
Those who brush nullification aside as “wacky” and “crackpot” wash away the very foundation of American political thought. As Jefferson wrote, the states “are not united on the principle of unlimited submission to their general government,” and the government created “was not made the exclusive or final judge of the extent of the powers delegated to itself.”
Federal supremacists would have us believe the people of the states created a federal government with limited, enumerated powers, insisted on further “declaratory and restrictive clauses” – the Bill of Rights - and then left it to that government to decide the extent of its own power.
In other words, we must accept that the founders believed a government could exist as a self-limiting institution.
Nullification naturally flows from the system the Constitution created. Without some way to hold federal power in check, we end up not with a limited government, possessing enumerated powers, but an indefinite one, subject to particular exceptions.