On nullification, Mark Levin, the great one, seems to be auditioning for a job at MSNBC, or maybe Esquire Magazine.

Yesterday, he used some of their leading talking points to attack nullification.  Some of their most hysterical ones, that is.

I’ll share more in a moment.

First Mark spent a little time educating you on how nullification is unconstitutional, and how James Madison was supposedly opposed to the idea of states resisting federal acts.

Certainly that flies in the face of what Madison had to say as far back as Federalist #46, where he called upon states to take 4 specific actions to resist not just unconstitutional federal acts, but also what he referred to as “warrantable” but “unpopular” federal acts.

Read about those 4 steps here.

You might notice that Madison didn’t mention a single thing about an Article V Convention when he discussed the “powerful means” to oppose the federal government that are at hand in the states.

That bears repeating.  In selling the Constitution, James Madison, the “Father of the Constitution” said that the STATES had powerful means to oppose the federal government.  He didn’t mention Article V as one of those powerful means.

Something to think about.  But, that’s another discussion.


Mark Levin also informed you that James Madison rejected nullification in the 1830s.  Sure, this seemed to fly in the face of much of what Madison had to say previously, and no legitimate constitutional scholar would ever put a lot of weight into what a Framer said decades after ratification, but there is something to take note of in Madison’s “Notes” against nullification.

Primarily, he opposed what he repeatedly referred to in South Carolina as “her peculiar doctrine of nullification.”  This was a proposal that John Calhoun made up out of thin air in which a single state could render a federal act legally null and void – and it would be assumed to be so until ¾ of the states convened to overrule that single state.


I know that most people weren’t taught this, but Calhoun’s “single state controls the whole country” nullification is not the nullification that Thomas Jefferson advised when he said that “every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits.”

It’s also not the same thing that Madison wrote about in 1798, when he said that:

in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

If Madison didn’t oppose a single state having such power – as South Carolina proposed – he’d be an idiot, because no one who created or ratified the Constitution ever wanted one state to control an entire country.

So, of course he opposed Calhoun’s doctrine.

But going further, in that same document James Madison actually supports nullification, and really hammers it home with this statement:

the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constitutionally resist a law of the Union while remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionally annul the law everywhere.

I don’t know if Mark forgot to read Madison’s whole document or he’s not mentioning this important part on purpose.

What I do know is this.  Either way, he’s wrong.

James Madison was right.


But, these are common mistakes that most lawyers seem to make.  And Rachel Maddow, too.  When she spent a full segment lambasting nullification supporters as right-wing racists a couple years ago, she did the same thing, and brought out John Calhoun to supposedly prove her point. As Levin slid back and forth between nullification and name calling like Rachel did previously, I was wondering if he’d been spending too much time watching her.

Maybe Mark and Rachel hang out together on the weekends?  I don’t know.   I don’t to want know.

At the very least, he makes the same argument that MSNBC’s Steve Benen does, that nullification should never be on the table.


With Sam Brownback signing the 2nd Amendment Protection Act into law in Kansas and Sean Parnell signing a similar bill into law in Alaska this year, republicans are recognizing that there certainly is a role for states to use “legislative devices,” as Madison called them, to oppose federal violations of your right to keep and bear arms.

In fact, the movement has gotten so big-time that 55% of republicans are in favor of nullification, according to the latest poll, and only 24% oppose it.  A previous poll by Rasmussen showed that a 52% of mainstream voters overall are in favor of nullification too.

But even with strong republican support, Levin referred to nullification as “left-wing.”

While I know that the most successful nullification effort so far in modern times has been 21 states nullifying federal marijuana laws, that poll doesn’t sound like just a “left wing” movement to me.   But that’s what Levin called it.

Nullification is an American movement.

And that’s part of why I think Mark is just off the rails on this one.  He said that the nullifiers are, and I quote, “kooks.”

Do 55% of republicans like being called a kook?

Was Thomas Jefferson a kook?

Are you a kook?

This sounds strikingly familiar to how Esquire magazine described the author of the Declaration of Independence:  “a bit of a wackadoo.”

Levin really needs to stop taking his talking points from these crazy establishment lefties if he wants to sound credible.


On the other hand, Mark Levin is 100% correct when he points out that voting the bums out isn’t going to do the trick.  Without a doubt, I agree with him when he says things like this:

“even if we take back the house with a slew of conservatives, the system is still broken.”

I absolutely agree with him that the states need to do an end-run around the federal government.  Without a doubt.

But referring to the nullification movement as a bunch of kooks isn’t just personally insulting to you, or the 55% of republicans that support the principle today (and even 12% of democrats), it’s just plain wrong.


I do know that I personally started this political movement that is relentlessly growing without major funding or a book being sold on major radio stations, and Mark is finally playing catch up to me and the Tenth Amendment Center by saying that the states are the solution.

Good on you, Mark.  Keep at it.  But being the experts on nullification, we’re happy to teach you more of the history about it.

And even if you don’t agree with us (or Thomas Jefferson and James Madison) that we are facing “insupportable oppression” and that nullification is the “rightful remedy,” we can find some common ground in our opposition to endless federal power.

Become a member and support the TAC!

We’ll just go about it different ways, and that’s not a bad thing, man.

On the other hand, if you’re just using bombast to show how tough you are, we can have at it another way.

If you’d like to argue this out one on one, I’m not going to go on your show for a fake “debate” where you can control the conversation and shout me down at will.

I am, on the other hand, offering a route similar to the challenge that Aaron Burr gave to Alexander Hamilton.

My version?  Mark, let’s do a charity boxing match.  You pick your charity and I’ll pick mine.  Winner takes all.  And I can assure you, it won’t be me on the mat whining like a little girl.

UPDATE: I posted a short blog on this issue in which the Tenth Amendment Center publicly offered a pretty serious olive branch to Levin – as if my comment here after he attacked us wasn’t enough:

We’ll just go about it different ways, and that’s not a bad thing, man.

It was rejected. Read more here: http://blog.tenthamendmentcenter.com/2013/09/an-olive-branch-to-mark-levin-on-nullification/

UPDATAE 2: Another blog post which gives a little more perspective on what Madison wrote in his “Notes”

Michael Boldin

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