Constitutional Corner – Is Nullification the Answer?

At the Valley Forge Constitution seminar on January 10th I made a new friend who gave me a copy of “The Christian Philosophy of Patrick Henry” by James M. Wells. The book is a publication of Mr. Wells’ 1960 Master’s thesis at Sam Houston State Teacher’s College, edited by my new friend.

Patrick Henry was an amazing man, a complex man, as so many of the Founders were, but definitely a man guided by a unwavering belief in Christ and the Bible. He was also a patriot who presciently saw great danger in the ambiguous wording of the document he opposed ratifying in June 1788 as part of the Virginia Ratification Convention. Henry argued like thunder – and lost to the gentle wind (but better arguments) of James Madison. In the end, he advised the convention: “I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet, I will be a peaceable citizen. My head, my hand, and my heart shall be at liberty to retrieve the loss of liberty, and remove the defects of that system, in a Constitutional way.”[1] (emphasis added)

Henry was one of the strongest proponents of states’ rights, ever; but he conspicuously avoided partisan politics in his later years. Nevertheless, he came out of retirement upon publication of the Virginia and Kentucky Resolves, and in his last public appearance warned that Virginia “had gone out of her jurisdiction in a manner not warranted by any authority.”[2] In 1788, Henry had warned of the poor wording of the Constitution, his warning had been ignored; now it was time to “pay the piper.” “The policy of [those arguing for nullification] appears to me quite devoid of wisdom and foresight.”[3]

Am I suggesting, like Henry, that nullification, as we’ve come to call it, is unconstitutional? I believe it is “extra-constitutional.” By that I mean to support nullification you must venture outside the actual text of the Constitution, which clearly argues against it in Article 6, and instead argue from principles upon which the Constitution was based, those of Blackstone and Locke. Individuals and groups enamored with nullification point to the 10th Amendment, but the 10th merely asserts that there are powers reserved to the states (or to the people); it neither identifies those powers nor describes how they can legally be expressed.

I last wrote about nullification in Constitutional Corner back in September, 2013 (Volume 1 No 27). It was merely an introduction to the topic since I believed (and still do) that many Americans had never even heard the term. I’ll not repeat what I wrote in that earlier article. I have posted it on CLI’s website for your review.

No critical analysis was attempted in that earlier article. It is now time for that analysis. The opponents of an Article V Convention place great stock in nullification as a remedy to federal overreach (while illogically implying that the states will simply rollover and accept whatever conditions Congress may include in its “Call” of a convention). But just how effective a remedy is nullification?

Nullification has many limitations; they are real and must be understood:

  1. Nullification does not change the underlying federal law. It only removes any state-controlled resources from the normal enforcement mechanisms for that law. The law remains “on the books” and the federal government is free to enforce it to the extent it is able. The Real ID Act of 2005 has been effectively nullified by the states, but it’s still part of the U.S. Code (Public Law 109–13).
  2. Nullification is a single-state, single-issue enterprise. In 1798, Jefferson and Madison attempted to precipitate a general revolt of the states to the Alien and Sedition Acts — they failed miserably. Wyoming nullifying Obamacare does not benefit in any way the remaining 308,169,126 residents of the U.S. (except to possibly provide them a bit of encouragement). Kansas nullifying federal gun laws (as they have) leaves the beleaguered residents of California unprotected. It would be meaningless (albeit tempting) for a state legislature to pass a law stating “We hereby nullify each and every federal law we object to.” Each and every unconstitutional federal law must be addressed separately. That will take some time, a long time — if there even exists a majority in the state legislature supporting the concept. There may also be a majority that supports nullifying federal gun laws, but not Obamacare. Each issue must be addressed separately and new support found.
  3. Nullification laws can easily be reversed by the next legislature that takes its seats. State legislatures are sometimes reluctant to reverse previous legislation (see dumblaws.com if you doubt this), but it certainly happens. Calls for an Article V convention have been revoked and Constitutional amendment ratification even reversed (ex: the 14th – you’d learn this in my class).
  4. Nullification has a dismal track record in the Supreme Court. The Supreme Court rejected nullification in Ableman v. Booth (1859) by declaring that Wisconsin could not nullify the Fugitive Slave Act of 1850; and in Cooper v. Aaron (1958) by declaring that the Arkansas state legislature could not amend their constitution to oppose desegregation. To my knowledge there have been no recent cases touching this issue. Would today’s Court uphold a nullification effort that was challenged in court? I think not. This would lead to what’s commonly called a “Constitutional crisis,” not unlike what Barack Obama has repeatedly thrust us into with his egregious Executive Orders, but a crisis that would have to be resolved one way or ‘tuther.

If you look to the Founders, some quotes of whose I included in my earlier essay, you’ll find support for both sides of this issue;, Mr. Henry clearly didn’t like it. Wikipedia takes a decidedly unfavorable view. Others, notably the 10th Amendment Center, think it’s the neatest thing since sliced bread (so to speak). There is a useful document on TAC’s website called: “The State of the Nullification movement – 2014.” I recommend you read it.

There are also several good books on the subject: “The Gateway to Liberty: The Constitutional Power of the Tenth Amendment,” by Dr. Archie P. Jones; “Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy,” by William J. Watkins; and of course: “Nulification, How to Resist Federal Tyranny in the 21st Century,” by Thomas E. Woods.

My view? Glad you asked.

I view nullification simply as one of several tools in a Patriot’s Toolkit. Not a particularly strong tool, perhaps akin to a rubber mallet, but a tool nevertheless which can and should be employed at selected times.

Nullification will not fix all that’s wrong with our Constitutional republic! At best it should be seen as a holding action. It will take far more than nullification to turn the great ship of state around. It will take a general awakening among the American people (you’re all working on that, aren’t you?) as well as clarification of that ambiguous language that so concerned Patrick Henry.

Congress is not going to make those clarifying changes; the people, “whose instrument it is,” must make them, and the Founders gave us a mechanism for doing just that. It can be found in Article V.

We’ll be discussing this issue tomorrow morning, 7am, on WFYL Radio, 1180 AM. You can listen in by going to www.1180wfyl.com.

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. This essay appeared on Fairfax Free Citizen and in the Yorktown Crier on 22 January 2015.

[1] Wells, quoting Henry, page 72

[2] Wells, quoting Henry, page 97.

[3] Wells, quoting Henry, page 93.