And when Heritage needs to smack down nullification, it turns to its big gun – Matthew Spalding, Ph.D., Vice President, American Studies and Director, B. Kenneth Simon Center for Principles and Politics.
It remains unclear how a guy working for an organization that brought you the individual mandate and defends indefinite detention under the NDAA has any credibility on constitutional issues. Nevertheless, Tal Kopan turned to Spalding for the conservative take on nullification in her Politico piece titled States Seek to Nullify Obama Efforts.
And once again, Spalding delivered an incoherent attack on nullification, essentially saying he was against it, while touting it as a legitimate response to federal overreach.
There are a rising number of people who are frustrated with what Washington is doing, which is a perfectly legitimate and, in my opinion, correct view of ‘how do we push back?’” he told POLITICO. “Unfortunately, there’s a minority in that group that thinks nullification is the answer, by which they mean good old-fashioned, South Carolina, John C. Calhoun nullification. That’s deeply mistaken and unfortunate.
If there was any serious national movement advancing a “good old-fashioned, South Carolina, John C. Calhoun” type of nullification, I would have to agree with Spalding. I would consider it deeply mistaken and unfortunate. But nobody I’ve ever met in today’s nullification movement advocates for Calhoun’s version of nullification.
That’s because Calhoun was dead wrong.
It seems Spalding likes to pull Calhoun’s name out of his hat because James Madison vocally opposed the South Carolina Senator during the so-called Nullification Crisis in the 1830s. Spalding can conflate “Calhoun nullification” with the general principles of nullification and pretend the third president didn’t actually believe in them to buoy his case. He trotted out this line of thinking back in 2011.
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.
But Madison made it clear in his Notes on Nullification that he wasn’t opposing nullification as it’s being used today, but specifically, Calhoun’s bastardized version of the doctrine.
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 [emphasis added]
Altho’ the Legislature of Virginia declared at a late session almost unanimously, that S. Carolina was not supported in her doctrine of nullification by the Resolutions of 1798, it appears that those resolutions are still appealed to as expressly or constructively favoring
That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide. [emphasis added]
There you have “good old-fashioned, South Carolina, John C. Calhoun nullification,” a specific process concocted by the South Carolina legislature that asserted other states were obligated to recognize the ‘arrest of execution.” Essentially, South Carolina claimed their nullification bound all other states.
Madison wasn’t opposed to a state “arresting the progress of evil” within its own borders – that’s exactly what he recommended in Federalist #46, the Virginia Resolutions of 1798, and the Report of 1800. But he did oppose the idea that one state could hold power over the whole country.
Nobody, I mean nobody, advocates Calhoun’s brand of nullification today. Spalding either doesn’t understand the actual principles of nullification, or he’s lying to legitimize his point. Or maybe a little bit of both.
It certainly seems pretty clear that Spalding doesn’t understand nullification, because in the very next paragraph he agrees with one of the primary modes of nullification, while rejecting the principle. In other words, he’s simultaneously for it and against it.
“Spalding said states’ better options include legal challenges, not funding federal laws or even refusing to enforce them — but not overruling federal laws with state ones,” Kopan writes.
Any action that renders an unconstitutional federal act null, void or simply unenforceable within the borders of a state counts as nullification. These actions include defunding unconstitutional acts and noncompliance with federal enforcement. When a state passes a law refusing compliance with a federal law, is it not, by definition, overruling that federal act with state law?
In fact, simple noncompliance serves as the most powerful tool in the nullifier’s arsenal. Twenty-one states defying the federal prohibition on weed through legalization of medical marijuana and outright decriminalization demonstrates the effectiveness of nullification through noncompliance.
Spalding might try to tell you noncompliance doesn’t really count as nullification. But this simply reinforces my impression of his cluelessness.
Northern states refused to comply with the Fugitive Slave Act of 1850 through the passage of Personal Liberty Laws. These measures primarily involved noncooperation. They were so effective that several southern states listed northern nullification (and they used that word) in their declaration of causes for secession.
So, while criticizing nullification, Spalding admits he supports it as a legitimate response to federal overreach.
Perhaps he would argue he means something else by nullification – which raises an interesting question: who is he to define the term? Nevertheless, I suspect he narrowly views it as an action directly thwarting implementation of a federal “law,” such as arresting federal agents.
But even the most aggressive interposition finds legitimacy within the American system. Quite simply, the people, through their preexisting political societies, created the federal government and delegated its power. It logically follows that they, not the entity they created, maintains the authority to define the limits of that power, and to take steps when their creation oversteps its legitimate authority. Madison reaffirmed this truth even while slamming “good old-fashioned, South Carolina, John C. Calhoun nullification” in his Notes on Nullification.
She (Virginia) asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.
We can again look to northern states in the years prior to the Civil War for examples of aggressive interposition put into practice. While most provisions of the Personal Liberty Laws fell within the realm of noncompliance, several states did include more aggressive measures, subjecting slave catchers, including federal agents, to kidnapping charges if they removed an accused fugitive slave from the state without going through the state prescribed due process. Keep in mind, the Supreme Court ruled these state defined procedures unconstitutional in Prigg v. Pennsylvania (1842). At least one documented case of local law enforcement officers arresting slave-catching federal marshals exists in Wisconsin.
One has to wonder: does Spalding condemn nullifying actions taken by northern states to protect their black citizens in defiance of federal law and Supreme Court opinion? Were abolitionists, “undermining the Constitution?”
Apparently so, according to our Heritage scholar.
Ironically, the people who say they are trying to defend the Constitution are doing something to undermine it.
This statement is ludicrous. How do you undermine something that no longer rests on any foundation whatsoever? The feds long ago tore the heart and soul out of the founding document. Nothing remains to undermine.
Nineteenth century legal scholar St. George Tucker argued in his essay Of the Several Forms of Government that people lose basic liberty under a government built on usurpation of power.
But no people can ever be free, whose government is founded upon the usurpation of their sovereign rights; for by the act of usurpation, the sovereignty is transferred from the people, in whom alone it can legitimately reside, to those who by that act have manifested a determination to oppress them.
Tucker’s words seem eerily prophetic today.
If in a limited government, the public functionaries exceed the limits which the constitution prescribes to their powers, every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people, which is thus endeavored to be subverted and transferred to the usurpers.
What do you do when somebody breaks the law? You take action and stop them. With every unconstitutional act, the feds violate the highest law of the land. And despite what Spalding might like to believe, we can’t count on departments of the federal government to limit their own power.
The Constitution is NOT a self-executing document.
Quite simply, nullification remains our last hope of reestablishing the proper balance of power between the state and federal governments. It is historically, philosophically and morally the rightful remedy.