by Derek Sheriff

Last week, Washington correspondent for TIME, Alex Altman, published an article about the growth of the state nullification movement titled, In Tea Party Montana, An Old Idea Finds New Life. It appeared in Swampland, a politics blog launched by TIME back in 2007 that describes it’s content as, “Political Insight from the Beltway and Beyond.”

The article focuses mainly on Montana and specifically the efforts of freshman state legislator Rep. Derek Skees, who openly promotes the principle of state nullification. Two years ago, one would have been hard pressed to find a state official anywhere in America openly using the word “nullification”, even if they sponsored bills that were the functional equivalent. But all that changed last year.

Not Just in “Tea Party Montana”

In addition to the groundwork laid by the Tenth Amendment Center and other organizations pushing for self-government and limited central authority, New York Times best selling author Tom Woods published a very important and influential book last June. It made the Amazon top 100 list and remains at No. 17 in Amazon’s Constitutional Law category at the time of this article. Copies of Nullification: How to Resist Federal Tyranny in the 21st Century were widely distributed to state legislators across the country, many of whom not only read the book, but began to use the word nullification in the language of the bills they sponsored.

Many candidates, as well as officials already holding office in state executive branches, got on board too. Martha Dean, a candidate for attorney general in Connecticut, opened up a copy of Woods’ book and  quoted from it during a televised debate. Governor Butch Otter of Idaho met with Tom Woods, read his book and came out in support of efforts already underway in his state’s legislature to nullify Obamacare.

But Idaho and Montana aren’t unusual in having many state officials and voters who support the principle of state nullification. In fact, if someone can name a state in the union today, red or blue, that hasn’t either successfully nullified an unconstitutional federal act, or doesn’t have legislators attempting to do so, please contact me so we can create a special area for that state on our legislative tracking page! Such a state would be the exception rather than the rule.

Now, I could understand why Alex Altman might want to focus primarily on one state’s efforts to nullify a particular federal act, especially if he lived in that particular state, or was reporting on one particular issue in a state recently capturing national attention. But neither seems the case here. So when most people read his article, especially TIME’s regular readers, I suspect that they will be left with the impression that today’s state nullification movement remains primarily  limited to Tea Party groups and their favorite state officials in more rural, western states. Additionally, if they were already under the false impression that past nullification efforts were mostly an effort by southern states, this article will almost certainly reinforce that myth.

To be fair, Alex Altman does devote one paragraph out of the 22 making up his article to some of the more recent nullification efforts in other states. He mentions ongoing efforts in several different states to nullify things like EPA regulations, invasive TSA searches, Obamacare, and federal food “safety” regulations. But unfortunately, he leaves out perhaps the two most successful examples of state nullification in the 21st Century, both receiving strong support from the left in blue states.

State laws that permit the cultivation, distribution and use of marijuana for medical purposes represent a positive defiance of the federal government’s total prohibition of marijuana and are without a doubt the best example of nullification’s success today. Something like a dozen states continue to permit medical marijuana despite threats from the U.S. Attorney in their district, in spite of previous U.S. Supreme Court rulings upholding the supremacy of federal drug laws and warnings from the U.S. Justice Department. And many states’ continue to refuse to implement the federal guidelines mandated by the REAL ID Act of 2005. The Time article mentioned none of this.

Besides omitting these glaring examples of successful nullification, the article mistakenly describes Montana as, “..the epicenter of the nullification movement”.

Say what?

Not to take anything away from the State of Montana, of which I am a proud native, but the nullification movement has no epicenter, nor has it truly ever had one.

Let me explain.

Nullification, which has a “checkered past”, according to Altman, simply stands as an American idea used by many states all over the country throughout our history for a whole range of purposes. Rooted in the classical liberal states’ rights tradition, the principle of state nullification was most clearly articulated by Thomas Jefferson in the Kentucky Resolutions of 1798 and also by James Madison who authored the Virginia Resolutions, adopted by his state’s legislature that same year. The ideas expressed in these two documents, and further clarified in Madison’s famous Report of 1800, came to be known as the “Principles of ‘98”. Over time, states would invoke the principles, both north and south, for a variety of issues — everything from unconstitutional embargoes enacted between 1807-1809,  military conscription proposed after the War of 1812, and the Fugitive Slave Acts of 1850.

To his credit, Altman at least mentions the two documents authored by Jefferson and Madison in 1798. But first he cites two pre-21st century nullification attempts, which if I were writing his article, and I wanted my readers to either reject or dismiss today’s nullification movement, I would definitely point to also.

A Skewed Historical Narrative

Altman sums up nullification’s, “controversial history” in a single sentence, mentioning the nullification crisis involving South Carolina in the early 1830’s and the unsuccessful effort by some southern states to resist the racial integration of schools during the civil rights era. He writes:

“It was invoked by South Carolina lawmakers seething over tariff laws in the antebellum South, and again during the civil-rights era, when states opposed to the landmark Brown v. Board of Education decision of 1954 used the idea of interposition, nullification’s kissing cousin, as a mechanism to resist integration.”

Now, I’m sure he didn’t want to turn his article into a boring history lesson, the way I have a tendency to do with mine, but is it just a coincidence that out of a dozen or so instances of state nullification (depending on how you count them, occurring in American history before the 21st Century, Mr. Altman just happened to choose these two examples?

You’ll have to decide for yourself.

Now even though his first example doesn’t put him in the zombie category, I would like to point out that although the nullification crisis of the 1830’s had nothing to do with slavery or segregation, the unfortunate reality is that most Americans still associate this chapter in their history with those issues due to the skewed narrative they learned with in school. It goes like this:

“John C. Calhoun was an important figure on the side of South Carolina in the nullification crisis of 1833. John C. Calhoun was a strong proponent of slavery, therefore the nullification crisis was essentially about slavery.”

Never mind that President Jackson, who strongly opposed South Carolina’s ordinance of nullification and threatened to use military force against it, was himself the owner of many slaves and hostile towards abolitionists.

It should also be noted that the attempt by some southern states to nullify federally mandated school integration in the 50’s is the only example I know of in American history in which states used nullification for a dishonorable purpose. So does this one example really justify Altman’s description of nullification’s past as “checkered”? He makes it sound like nullification was used for sinister purposes as often as it was used for righteous ones. Any good liberal who does their homework will quickly see that this has not at all been the case.

He brings up southern resistance to the federal court’s decision in Brown v. Board of Education, which denied that states could establish racially segregated schools under the “separate but equal” doctrine. But he could have just as easily mentioned Wisconsin’s resistance to Supreme Court’s decision in Abelman v. Booth, upholding the Fugitive Slave Act of 1850 as perfectly constitutional, which it most certainly was not. And he mentions that Montana “..has
 considered proposals that require proof of citizenship to receive state
 services and criminalize the hiring of illegal aliens.” But he never mentions the Alien and Sedition Acts, sparking the first American nullification movement because they included several measures that the Encyclopedia of Immigration describes as, “..the first example in the United States of repressive immigration legislation enacted amid fear of foreigners and war hysteria, coupled with a willingness to suppress dissent and punish free expression.”

Finally, Alex Altman ends his article with a litany of nullification bills that either failed to pass in Montana’s latest legislative session or were vetoed by its democratic governor. If he wanted to portray nullification as a hopeless cause, this was a good way to close. But the reader doesn’t learn about nullification legislation signed into law in previous years, both in Montana and in other states. For example, he could have mentioned the Montana Firearms Freedom Act (FFA), signed into law by that same governor in 2009. Among other things, it declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states. The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the “commerce clause,” with firearms as the object. Seven other states have since passed nearly identical nullification laws modeled on Montana’s.

Tenth Amendment Center? Never Heard of ‘Em!

One would also have thought he’d mention the Tenth Amendment Center in his article, given that no other organization in the United States has done more to bring the principle of state nullification to the attention of voters, state officials and the mainstream media in the last five years. In fact, The Tenth Amendment Center has pretty much become the source for media outlets to get their information about nullification and issues related to state sovereignty. See for yourself! I guess that’s why Alex Altman interviewed our founder and director, Michael Boldin, extensively before writing his article.

So, while his article was well written and provided a much more balanced look at the nullification movement today than many that I see in the mainstream media, I was still disappointed. If the pillars of good journalism are thoroughness, accuracy, fairness and transparency, it could have been more thorough. Don’t get me wrong, I’m glad he wrote it and I hope it will generate more public interest in state nullification and the Principles of ‘98. All too often I find myself having to point out and correct historical inaccuracies, major distortions of the facts and even outright lies. This was certainly not the case with this article. It’s just unfortunate that Mr. Altman left out a number of important current events related to nullification, portrayed it as simply a red state, tea party driven movement and chose to use historical examples of nullification that are likely to reinforce the myths and stereotypes that many of his regular readers probably have about it already. His article will certainly not be the last one to make these mistakes. The Tenth Amendment Center team and our supporters have our educational work cut out for us.

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