Nullification has long been thought of as a dead issue, but it has made a bit of comeback of late. The issue is whether states can nullify, or not enforce, federal laws they find to be unconstitutional. The constitutionality and morality of nullification seem like an important debate, but nullification is seen as ‘secession light’ and has become so tied up with the United States’ long history of racial oppression that the mere mention of nullification is likely to elicit charges of racism or sedition.
Indeed, when one thinks of nullification, a few things may come to mind: the nullification crisis of 1832, John Calhoun and slavery, Brown v. Board of Education as well as the struggle for civil rights in the 1960’s. While the nullification crisis of 1832 was a dispute over the “tariff of abomination,” the threat of nullification was also seen a preemptive measure in case the federal government ever tried to interfere with slavery. John Calhoun, who saw slavery as “instead of an evil, a good, a positive good,” was a major supporter of nullification and was instrumental in laying the intellectual groundwork for the secession that lead to the Civil War. There was talk of nullification for the Civil Rights Act of 1964. And actual attempts were made after the Supreme Court ruled on Brown v. Board of Education, which persuaded President Eisenhower to call in federal troops to escort the “Little Rock 9” to class in what was formerly an all-white school. Nullification, as with interposition and secession, has without question been used to deny civil rights to minorities in this country.
It’s thereby not surprising that Princeton professor Sean Wilentz refers to the doctrine of nullification as “the essence of anarchy” and “neo-Confederate dogma” while Chris Mathews described it as the “terms of Jim Crow.” A whole host of other bloggers and political commentators have referred to it as a “code word for racism.” Among most on the left, nullification, and states’ rights in general, are simply an affront to civil rights.
However, I find this to be a gross simplification of a general concept. As with people who think secession is an evil idea forever intertwined with slavery, while simultaneously having fully supported the rights of Eastern European countries to secede from the Soviet Union, examples are being used to define a theory. Furthermore, it is quite interesting that the same people who oppose nullification typically support civil disobedience, such as that practiced by Mohandas Ghandi and Martin Luther King.
The reason I find this interesting is that nullification and civil disobedience have similar intellectual foundation. After all, what is nullification other than an act of disobedience against what the state legislature finds to be an unjust law? And what is civil disobedience other than an act of disobedience by an individual against what he finds to be an unjust law? The hierarchy of government in the United States goes down from the federal level, to the state, then local governments and finally to individuals and non-governmental institutions. Any act of disobedience along the way should be seen as an act of political defiance.
Yet when we look at Martin Luther King Jr., it’s quite obvious he opposed nullification. In his famous I Have a Dream speech, he decried Alabama “…with its vicious racists, with its governor having his lips dripping with the words of ‘interposition’ and ‘nullification.’” But Martin Luther King Jr. supported the Henry David Thoreau/Mohamed Ghandi ideal of non-violent civil disobedience. He referred to the difference between civil disobedience and crime as “the willingness to accept the penalty for breaking the unjust law is what makes civil disobedience a moral act and not merely an act of lawbreaking.” Those penalties can be high as the Selma to Montgomery marchers found out when they crossed the Edmund Pettus Bridge.
Surely attempting to nullify a law can certainly have consequences for states as well. This is especially true given how much money the federal government takes and then divvies out the states and could presumably withhold. Such actions can even lead to invasion, such as when the Soviet Union invaded Czechoslovakia (at that time, a state of the USSR) to halt liberalization efforts. While Martin Luther King Jr. was undoubtedly fighting a noble campaign to end the evils of Jim Crow, he missed the point here. Alabama’s governor’s goals were bad, but not necessarily the methods he used to push for those goals. After all, civil disobedience could be used by NAMBLA to defend pedophilia. That doesn’t change the ideal of civil disobedience, what Henry David Thoreau called “the true foundation of liberty.” And it’s simply undeniable that the basic premise behind nullification and civil disobedience are one and the same.
Consider the following hypothetical situation. Let’s say it was the federal government that had mandated segregation and not the states. Do you believe for one second that Martin Luther King Jr. would have opposed states nullifying that particular federal law? Martin Luther King Jr. was trying to crush segregation and I find it patently absurd that he would neglect a non-violent method of doing so if the situation had been as described. I would submit that it was racism that Martin Luther King Jr. opposed much more than any legal justification those racists put forth to maintain segregation. And for anyone who thinks such a scenario is unbelievable—because the federal government can be trusted on racial issues—allow me to enlighten you.
First of all, it’s important to note that it was not the slavery-defending John Calhoun who came up with the concept of nullification, but rather Thomas Jefferson and James Madison (two men who both opposed the institution). The two wrote the Kentucky Resolutions of 1798, which stated “that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” They wrote this in response to the freedom-hating Alien and Sedition Acts which made “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States” a crime punishable by up to five years in prison. This, of course, gutted the First Amendment of our Constitution.
As Thomas Woods, author of the new book Nullification, points out the north used nullification more often than the south in the antebellum period. One of their prime targets was the federal government’s fugitive slave clause, which required escaped slaves to be returned to the slave-owner they escaped from. Unfortunately, this was constitutional; however, it was enforced in a draconian way that trampled over state governments, especially after the Fugitive Slave Act of 1850. Wisconsin went the furthest, basically nullifying the entire act. (One handbill referred to it as “the Kidnapping Act of 1850.”) And just about every northern state nullified the act to one degree or another as evidenced by Texas’ Declaration of Succession in 1861, which said:
The States of Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Massachusetts, New York, Pennsylvania, Ohio, Wisconsin, Michigan and Iowa, by solemn legislative enactments, have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the fugitive slave clause] of the federal constitution.
South Carolina protested about “…an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations [the Fugitive Slave Act].” Mississippi complained that “[The Union] has nullified the Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.” The union they refer to is the union of northern states, not the federal government, since the federal government was in charge of administering the Fugitive Slave Act. Indeed, abolitionist William Lloyd Garrison even recommended the north secede from the south so that the Fugitive Slave Act would be completely eliminated and slaves could escape to the north instead of having to make it all the way to Canada.
And the Fugitive Slave Act is just the beginning. Centralized states simply don’t have a good track record regarding racism. Some countries have enacted what could best be described as affirmative action for the majority. As Thomas Sowell points out in his book, Affirmative Action Around the World, in Malaysia, the majority Malays instituted preferential policies for themselves over the minority Chinese. The same was done in Sri Lanka in favor of the majority Sinhalese against the minority Tamils (and was one reason the country descended into civil war). Ira Katznelson even argues that this is what happened in the United States under the New Deal in his book, When Affirmative Action Was White.
And of course the trans-Atlantic slave trade was institutionalized by centralized European nation-states (as well as many other nation-states all over the world), which then brutalized many of the native populations. The U.S. government upheld Plessy v. Ferguson, which allowed for Jim Crow in the first place. Eugenics was state-sponsored in a large number of western nations, including the United States, and resulted in the forced sterilization of many minorities. In 1492, Queen Isabella and Ferdinand of Spain ordered the expulsion of every Jew from the country. And that was just one of a wide assortment of other anti-Semitic laws culminating in the Holocaust. Indeed, most genocides, from Rwanda and Sudan to Germany and the Ottoman Empire have been sanctioned by a powerful, centralized government. Needless to say, federal supremacy and the civil rights of minorities are not naturally in accord.
…states’ rights is a constitutional, not political, issue, and the idea of a balance of power between the federal and state governments is neither conservative nor liberal at heart. It pertains to the theoretical process and function of government, not to the substantive, individual acts of governance themselves.
Indeed, it’s quite worth noting how some of the worst tyrants in history felt about states’ rights and nullification. Adolf Hitler’s thoughts on them were as follows:
National Socialism must claim the right to impose its principles on the whole German nation, without regard to what were hitherto the confines of federal states… The National Socialist doctrine is not handmaid to the political interests of the single federal states. One day it must become teacher to the whole German nation. It must determine the life of the whole people and shape that life anew. For this reason we must imperatively demand the right to overstep boundaries that have been traced by a political development which we repudiate.
In other words, federalism, states’ rights and any form of nullification are bad… if you’re a Nazi. A few others who have opposed federalism include Joseph Stalin, Vladimir Lenin, Pol Pot, Mao Zedong, Saddam Hussein, Benito Mussolini, Fidel Castro, Henry VIII, George III, King Leopold, Ivan the Terrible, Vlad the Impaler, Nero, Caligula, Napoleon Bonaparte, Idi Amin, Hirohito, Kim Il Sung, Kim Jung Il, and… need I really continue?
That may be a cheap shot, but still, nullification, aside by being used to defend runaway slaves and free speech, has been used to stop military conscription, tariffs and unlawful search and seizures. I would say those are civil rights-friendly policies. The nullification threats over conscription during the War of 1812 are very reminiscent of the civil disobedience over the military draft during the Vietnam War. And in both cases, they were effective. The federal government was unsuccessful in creating a draft for the War of 1812 and the draft was eventually abolished after furious protest and defiance in 1972.
Today, nullification is being used, in everything but name, on a whole host of matters from conservative issues such as gun rights, to liberal issues such as medical marijuana (California, effectively nullified the federal ban on it). Many states are considering challenging the porkfest of corporate welfare that is healthcare reform. The Real I.D. Act, which created a national ID card, was passed, but so many states have refused to implement it that the federal government has, at least for now, given up on it. There is quite a lot of nullification going on right now even as we debate whether or not it’s constitutional, racist or seditious.
Liberals, who are typically more likely to oppose federalism, should ask themselves whether or not nullification would allow states to defund the Iraq War, end the War on Drugs or eliminate the Patriot Act and the Military Commissions Act. The principle in and of itself can be used for good or bad, but centralized power tends to always be bad. As Tom Woods put it, “If you enter into a contract with somebody, never, ever would you say that the other party in the contract can exclusively interpret what it means… [when] the federal government has a monopoly on interpreting the Constitution… they’re going to interpret it in their own favor.” Given the horrific amount of damage a centralized government can do (according to R.J. Rummel, governments killed 262 million of their own citizens in the 20th century alone), I think it’s safe to say we need every tool available to ward off unchecked government power.