Refusing to Address Nullification IgnoranceNullification ignorance runs rampant in the media. Last week, the Omaha World-Herald ran an editorial headlined “States must reject bogus nullification.”It included typical federal supremacists talking points and historical falsehoods, couched in the standard arrogant language of those convinced of the infallibility of their errors.

The writer (presumably Geitner Simmons –  – listed as the senior editorial writer on the paper’s website) used words like “bogus” and “dangerous radicalism” to describe nullification efforts. And he emphatically states, that “there’s no question that it’s directly contradictory to the U.S. Constitution.”

I always experience a mix of rage an amusement when these slaves to conventional wisdom manage such a smug attitude while making demonstrably false statements.

Hoping the paper would demonstrate a modicum of journalistic integrity, I submitted a response to editorial page editor Mike Holmes ( pointing out the historical and constitutional basis for nullification, along with the errors of history and reasoning in the original op-ed. You see, I went to journalism school and worked in the field. Most journalists view the profession of as the “Fourth Estate,” an integral part of the American system. In journalism school, professors preach the idea of “informing the public so they can govern themselves” and hammer the idea of balance into students’ brains.

Homes rejected the submission.

I don’t think we’d be interested in running this as an op-ed, but a shorter letter to the editor expressing these views – 200-250 words – would be welcome.

Wow! Thanks! I get 200 to 250 words in a letter few will read to address a 650 word op-ed on a complex constitutional subject like nullification.

It seems pretty clear where the World-Herald stands on actually informing its readers. I suppose they find the principles first articulated by James Madison and Thomas Jefferson too bogus to even warrant a response.

Here is the op-ed I submitted:

Sometimes, obvious statements turn out false because they rest upon faulty premises.

This proves true when it comes to nullification, a subject prominent in the news with the Missouri legislature considering the fate of a bill that would block enforcement of acts violating the Second Amendment.

Most Americans assume the federal government enjoys absolute supremacy. That leads to emphatic statements like this one from the Omaha World-Herald on the question of whether states can block unconstitutional acts.

“There’s no question that it’s directly contradictory to the U.S. Constitution.”

This seems self-obvious to Americans indoctrinated in the concept of absolute federal supremacy, but when judged against the intended structure of the American system, this statement proves false.

Nullification opponents point to the supremacy clause, arguing it makes federal law the “supreme law of the land.” The clause affirms the Constitution, and all laws made “in pursuance thereof,” stand supreme. But federal supremacists pretend the words “in pursuance thereof” don’t exist, assuming every federal act stands supreme by virtue of passage. Their version reads, “This Constitution, all laws made in pursuance thereof, and any other old act Congress, the president or the federal courts authorize stands supreme.”

Alexander Hamilton rejected this idea in Federalist 33.

It will not follow from this doctrine [supremacy] that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [states], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

But who decides constitutionality? Most Americans believe the Supreme Court does, but fail to address a fundamental question: how does one reconcile the undeniable fact that state ratifying conventions adopted the Constitution understanding that it was creating a general government with limited powers, and the incongruent idea that a branch of that very same federal government has the final say on the extent of its own powers?

Quite simply, you can’t.  A limited institution defining its own limitations cannot exist. The definition of limited will constantly expand to accommodate the institution’s agenda. The power to decide makes the federal government’s authority essentially unlimited. To borrow a quote from Madison, that “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Thomas Jefferson pointed out the fallacy of this notion, asserting that “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”

James Madison goes on to draw the only logical conclusion.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

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It is true that Madison later wrote in opposition of South Carolina’s attempt to nullify the “Tariff of Abominations.” But those who use Madison’s arguments to discredit nullification pull a few quotes out of context, ignoring what exactly he opposed. In fact, Madison was arguing against a specific process concocted by the South Carolina legislature asserting that other states were obligated to recognize a single state’s nullification efforts.

Madison actually gave the blueprint for nullification in Federalist 46, explaining how to stop “unwarranted” federal power. He argued that “the means of opposition are powerful and at hand.” He wrote “the disquietude of the people” and “perhaps refusal to cooperate with officers of the Union,” along with “the embarrassment created by legislative devices, which would often be added on such occasions” would create impediments in a single state. And when multiple states resisted, it would “present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]

Any honest reading of ratification history proves Jefferson right. The states “are not united on the principle of unlimited submission to their general government.” This being the case, states must have some method resist federal usurpation. As Jefferson said, nullification is “the rightful remedy.”

Mike Maharrey