Nullification feels a little rebellious.

Declaring that a state can refuse to cooperate with the federal government seems like an act of defiance.

Perhaps this explains why even many supporters of nullification continue to labor under the misconception that it’s always “against the law.”

Last week, Ryan McMaken wrote a very favorable article about nullification for Mises Daily. He hits the nail on the head when he explains that even the left understands the power and effectiveness of nullification through noncooperation.

“They know that the feds can only do so much to enforce federal law on their own, without help from local government. Yes, the feds have their own federal agents, but federal police forces are actually quite small compared to state and local police forces (unless, of course, the feds call in the military.) But big, federal enforcement operations tend to be PR disasters, as in the case of the Bundy Ranch standoff.”

But while he clearly understands how nullification works, and supports it as a powerful strategy to limit federal power, McMaken remains a bit confused about the legal standing of nullification through a refusal to cooperate with the feds.

The misconceptions sneaks in as McMaken explains the success northern abolitionists had nullifying the federal fugitive slave acts. He does a tremendous job illuminating history that remains a mystery to most Americans, and dramatically proves just how effective noncooperation can be. But he wrongly declares that northern efforts opposing fugitive slave rendition were all illegal.

Certainly, the nullification of the fugitive slave acts was highly successful, and also very illegal…Federal law was clear that the runaway slaves were a federal matter, and anyone who interfered with it was in violation of the law. But that didn’t stop those who lied to federal officers and helped slaves evade bounty hunters. Northern nullifiers simply weren’t going to respect federal law in this matter because they viewed it as immoral.” [Emphasis added.]

McMaken misses some important nuance in his analysis.

Prior to 1842, States generally didn’t try to directly stop rendition, but did create some serious roadblocks to it. These states often required slave catchers to prove that an accused runaway was in fact an escapee from slavery. Failure to do so sometimes led to kidnapping charges. For instance, the Pennsylvania Personal Liberty Law of 1826 required a slave owner to obtain a certificate of removal from a state judge. A Vermont law passed in 1840 mandated a jury trial for any accused fugitive.

These state laws slowed down and sometimes fully prevented the return of slaves to their owners. While they were primarily designed to protect free blacks from kidnapping, abolitionists took advantage of these laws to protect runaway slaves as well. These early personal liberty laws served as a means to nullify in practice the federal Fugitive Slave Act of 1773, and were considered a legal approach by many. Others, however, disagreed.

This led to the Supreme Court’s view in Prigg v. Pennsylvania (1842). In the majority opinion, Justice Joseph Story held that Congress possessed the sole authority to legislate in the matter of fugitive slave rendition, and state governments couldn’t physically interfere in any way, not even to protect freemen from kidnapping.

But Story buried a jewel in his opinion. While he held that states couldn’t interfere with fugitive slave rendition, he said they also couldn’t be forced to help.

“The [Fugitive slave] clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”

In 1850, Congress passed the more stringent Fugitive Slave Act of 1850, and northern resistance ramped up. Some of these efforts were indeed illegal, according to the Court’s view in Prigg. Some state laws simply ignored the Supreme Court. For instance, several northern states passed new personal liberty laws requiring a jury trial before returning a fugitive south. Additionally, individuals assisting runaways and facilitating escape on the underground railroad also broke federal law.

But many state nullification efforts took advantage of Story’s opinion in Prigg and simply denied state resources or assistance to slave catchers. For example, the Michigan personal liberty law prohibited state or local jails from holding accused runaways, and the Massachusetts personal liberty law made it an impeachable offense for state officers to assist in fugitive slave rendition. These actions were perfectly legal, even under the court’s view of the law, because they were applying the Court’s view that states could not be forced to provide help to the federal rendition program.

That brings us to today.

McMaken asserts that modern noncooperation with the federal government is also illegal.

“But even ‘do nothing’ attempts at nullification remain on very shaky legal ground. According to modern interpretations of the Constitution, there is no legal provision for state and local officials (including state courts) to refuse to enforce laws that modern constitutional scholars claim are part of “the law of the land.”

In fact, since Story’s opinion in Prigg , the Supreme Court has repeatedly held the same view, that the federal government cannot force states to implement or enforce federal acts or laws. The so-called anti-commandeering doctrine builds on Prigg primarily through three subsequent Supreme Court cases, including New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012). The Printz case serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

So, “do nothing” attempts at nullification rest on rock-solid legal ground, even according to the Supreme Court of today.

The vast majority of modern legal scholars and federal judges completely ignore the original meaning of the Constitution and fail to understand the proper relationship between the states and the federal government. They mistakenly believe the Supremacy Clause creates absolute authority for the federal government to do whatever it pleases. As a result, when it comes to nullification, legal opinions aren’t generally our primary concern, but they’re helpful with the general public.

McMaken correctly observes that most importantly, nullification works.

But correctly understanding the legal basis for noncooperation makes it strategically easier to pass legislation that denies state resources, personnel and assistance to the federal government.

Insisting that nullification efforts are illegal only makes the work more difficult. In the case of state non-cooperation, we have the law and even the Supreme Court firmly on our side. We should use that to our advantage.


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