constitutionA few weeks ago I left a note for nullification deniers regarding some of their more frequent errors. A quick perusal of Wikipedia clears most of these up, so there’s no excuse for always being so ignorant of the subject matter. Still, some opponents of nullification seem to know plenty of its history, and yet remain plagued with misunderstanding.

For those intellectually honest enough to address the popular origins of nullification in the United States – the Virginia and Kentucky Resolutions – a common rebuttal is to reference those states which opposed the “Principles of ‘98.” This fact seems to be used in order to marginalize the use of nullification and offers a convenient means of confirmation bias for those addressing this point. However, this argument is fraught with a number of problems. It ignores certain relevant historical facts that help explain the motive behind rejecting nullification at the time, it establishes a faulty chain of reasoning, and begs an important ethical question related to politics.

Understanding the manner in which officials were elected to federal office, and the political context of nullification, is essential to unraveling this argument. Events in world history also played a major role in this episode. In brief, here is how the process worked in the early part of American history.

Since George Washington’s first term, presidents were selected much in the same way as they are now, by the electoral college. Vice presidents however were not chosen by the presidential nominee and his political party prior to the election, as they are now. Until ratification of the 12th Amendment in 1804, vice presidents were chosen by the electoral college as runner-up to the presidency. This was meant to prevent deadlocks in the election process and it tended to serve as at least a partial check on the executive branch as well. With the advent of political parties the two offices were sometimes filled by opposing partisans. While a vice president couldn’t unilaterally scuttle a president’s agenda, close ties in the senate might be swayed by the subordinate executive. In 1796, when Federalist John Adams was selected over Democratic-Republican Thomas Jefferson, there was such a division.

With the Quasi-War with France underway, and with government officials in various countries growing increasingly uneasy with the ongoing French Revolution, congress passed the Alien and Sedition Acts in June of 1798. Among the provisions of these new laws, criticism of the Federalist-controlled government, namely John Adams himself, was prohibited. Conveniently left out of this proscription on free speech was Thomas Jefferson, the president’s chief political rival, who happened to be somewhat sympathetic to the revolutionary efforts in France. Because the Federalists largely controlled the federal government at the time, this omission should not come as a surprise.

This also helps to explain why Virginia and Kentucky stood alone in opposition to the Adams administration. In all, seven states passed formal denunciations of nullification. They were the New England States of Connecticut, Massachusetts, New Hampshire, Rhode Island, and Vermont; and the middle States of Delaware and New York. The former had long been controlled by the Federalist Party, and the latter had recently been taken over by Federalists in the previous congress. Several of these states included in their resolutions rather sharp condemnations of nullification. For example, Vermont’s legislature passed a resolution which read in part:

the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government….

In February of 1799 the legislature in Massachusetts, Adams’ home state, wrote we “explicitly declare […] the acts of Congress, commonly called ‘the Alien and Sedition Acts,’ not only constitutional, but expedient and necessary.” Given how contemporary politics is so deeply partisan, it should not surprise us to find that political allegiances may have had something to do with this episode in history.

Now, there appears a certain dilemma for opponents of nullification who buttress their argument by pointing to the New England States’ rejection of the principle. The very foundation of nullification is that the states are rightly charged with interpreting the constitution. Necessarily, the act of nullifying an unconstitutional federal law may only be done after a state has determined the act in violation of the constitution. Opponents of nullification argue the supreme court is the sole arbiter in deciding the validity of federal laws, and thus deny this role to the states.

But in pointing to the interpretations of the constitution by other states – which is what Vermont, Massachusetts, and the others did – someone denying nullification has contradicted his own thesis. In appealing to Vermont and saying “see, Vermont said Kentucky can’t nullify federal law,” an opponent of nullification is implicitly admitting that the states indeed have a role in deciding the constitutionality of a federal law. It’s irrelevant whether a state endorses nullification or opposes it, state interpretation is really at the heart of this argument.

The Massachusetts legislature did in fact acknowledge this, writing that “they do not themselves claim the right, nor admit the authority of any of the state governments, to decide upon the constitutionality of the acts of the federal government….” So they claimed no right to do so, but offered their opinion on the matter. It seems obvious that cognitive dissonance isn’t a feature unique in contemporary political debate.

Setting aside these two previous objections, let’s assume there was no political loyalty between the federal government and the states opposing the Virginia and Kentucky Resolutions. Let us also imagine that state interpretation of the constitution is recognized as a legitimate function by approved opinion. Does a critic of nullification have a valid point in bringing up the majority of states’ opposition to the “rightful remedy?”

The answer is still no.

Majority opinion does not make an action or policy right or wrong. Whether a single despotic ruler declares an action virtuous, or all but one voter in a pure democracy decide to implement a new policy, such opinions hold absolutely no moral weight. In fact, here’s a good rule of thumb: on questions of moral legitimacy relating to government, almost invariably the majority holds an incorrect position. So often the majority is willing to sacrifice the rights and liberties of the minority for their own gain that this is practically axiomatic. Review court case after court case, or browse through reams of congressional voting rolls; the majority opinion almost always goes in favor of usurpation and illegitimate force being applied to otherwise free and peaceful individuals.

For our purposes here it is not my intention to make a complete argument for individual liberty. However, the reader should at least take away from this piece that positive rights are illegitimate constructs of the state, and adherence to the non-aggression principle is the morally appropriate default for human relations. In deciding what is right and what is wrong, rather than look to the majority for guidance, the question that must be answered is this: will this law be compatible with Natural Law; are the negative rights of any one person bolstered or degraded by this action? For further reading, see Judge Andrew Napolitano, here.

While the comparison between the rights of the individual and the rights of states isn’t perfect, some parallels exist related to the constitution.

Despite being parties to the federal constitution, each state retains its own sovereignty. The 9th and 10th Amendments express this idea, reserving all rights not delegated to the federal government. If one state or a group of states decides to delegate more authority to the federal government, it does not ipso facto strip the relevant authority from dissenting states. The fact that some states, or all but one state, find a federal statute acceptable does not make it so for the remainder. In part, this is where the basis for nullification rests – the other states are free to resist through non-compliance.

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To reemphasize my point above: the opinion of other states has no legal or moral standing regarding nullification. None.

In the same way that political gamesmanship drives contemporary politics, it did so in the earliest days of the republic. This, and not some idealized view of early America helps to explain the opposition to Kentucky and Virginia’s handling of the Alien and Sedition Acts. Relying on any state’s interpretation of the constitution necessarily requires one to accept the role states have in deciding the legal boundaries assigned to the federal government. Whether a state accepts a law or chooses to render it void is not important here; the crucial point is that they have the prerogative to decide which course to take. Majority opinion notwithstanding, the states aren’t bound by the federal government’s extra-constitutional legislation. It only takes one to say “no.”

Resisting the tendency toward absolute deference to the federal government is critical to preserving liberty. Nullification is the proper means for this. Indeed it is the only vehicle left with which to adequately restrain the federal government.

Joel Poindexter
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