by Steve Palmer, Pennsylvania Tenth Amendment Center

In January, reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.  I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

  • Nullification would create a patchwork of laws, rendering national governance impossible.
  • Nullification was a factor in the lead-up to the Civil War.
  • The Constitution grants no authority for the states to nullify.
  • The Civil War proved that nullification is not an option.
  • The supremacy clause means that the federal government is superior to the state government.

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ to have a place to refer people to find the rebuttal for all of the standard arguments.  This is a work in progress, so if you would like to contribute content for questions and/or answers, please use the contact form to e-mail us your suggestions.  Phineas also made the more unusual argument that when Jefferson and Madison penned the Kentucky and Virginia Resolutions, fourteen other states declined to support them in their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.


And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.)

Those points led me to submit the following comments…

Steve Palmer says:

I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK.  In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one.  Please follow the link for a more detailed explanation.


Steve Palmer says:

Sorry to follow myself, but while rereading your article, I became intrigued by another point.  Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?  If so, I’d really like you to elaborate on that line of reasoning!

I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof.  I also have an article on that subject here – LINK

It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones.  I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts.  I am very curious to hear your line of reasoning to the contrary.

To my question about whether the northern states should have refrained from nullifying the federal fugitve slave acts, Phineas responded,

No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind.  Probably not the best one to use.

I followed up with this comment,

So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

(quote from original post)

“To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.”

In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK.  Anyway, I thought conservatives supported federalism?

In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway.  We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it.  Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete.  You are correct insofar as the states were always opportunistic in their support of nullification.

For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

Which drew this response from Phineas,

Hi Steve,

I haven’t read Woods’ book.  I should, since it’s an interesting topic.  In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge.  The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.  The expositions of the judiciary, on the other hand, are carried into immediate effect by force.  The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration?  What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens.  This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights.  Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states.  Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

My response,

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett –

And this seems to be the relevant paragraph,

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution.  Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void.  Nullification merely disallowed the enforcement of a nonexistent constitutionality.  What could be controversial about that?

Here is Madison’s report, which both of them mention –

I’m surprised Woods’ didn’t mention this, but I just took a quick look.  Barnett was apparently careless in selecting his quote.  Madison’s report is organized in sections.  Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government.  Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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