There’s Nothing Radical about Nullification

Trail_of_tears_signPicture the single most barbaric, inhumane, and morally reprehensible act imaginable. It could be anything. You could choose genocide, the most depraved form of torture, or slavery, whatever really. History is replete with examples, the twentieth century in particular, but the nineteenth century had its share of them as well.

There doesn’t have to be a geographic limitation, either. But for the sake of argument, try to keep it local, as in here in the United States. Whatever you chose, On the official Maddow Blog, MSNBC’s Steve Benen believes that “[n]ullification must never be on the table” as a means to protect innocent lives and property.

Apparently he can’t think of a single reason that nullification should be used by states or local governing bodies. The logical implication is that opponents of slavery – that is advocates of freedom – in the antebellum period were wrong to have used nullification as a means to protect the lives and freedom of former slaves. No doubt, Harriet Tubman would be described by Benen as a radical, and her willful defiance of federal slave laws would be denounced, had the two been contemporaries.

Another case where nullification could arguably have been employed is in preventing or at least deterring the murderous and detestable “Trail of Tears” death march across the southern United States. Imagine if the forcible relocation of more than a hundred thousand members of various native tribes weren’t marched through Georgia, Alabama, Tennessee, or Kentucky because those states refused to participate. The lives of thousands could have been saved by such resistance. Opponents of nullification however, are self-righteously indignant at such a thought.


State Nullification and the Supremacy Clause

Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:

State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.

What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.

Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states