Constitution Corner – Federalism and Nullification

Any solitary word that people can write whole books about, is obviously too complex to thoroughly discuss in a simple essay, and “federalism” is no exception.  Yet few Americans understand the term; ask ten average citizens what the word means and nine of them will have no idea what you’re talking about.

With all due respect to Justice Kennedy, who in 1995 wrote that “Federalism was our Nation’s own discovery,” the idea of federalism would appear to have been invented by none other than God himself.  In Exodus 18: 21-22, Moses is commanded by God to “select from all the people able men, such as fear God, men of truth, hating covetousness; and place such over them to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. … So it will be easier for you, for they will bear the burden with you.” The people of Israel had become too numerous to be ruled/governed by one man, and a shared system of governance had to be put in place, with the power necessary to make decisions and keep order distributed to each level.  Such is political federalism (as differentiated from covenantal federalism): the sharing of political power between vertically stratified governments.

In America, the Articles of Confederation, ratified in 1781, established shared power between the 13 states and the Confederation Congress; with the chief deficiency being the inadequate level of power bestowed upon the Congress.  This deficiency, combined with the economic turmoil which resulted from the revolutionary war, led to social and political unrest and localized insurrection – Shay’s Rebellion being the “poster-child” – and ultimately led to the convention of 1787.

The delegates at the 1787 convention understood that federalism would be necessary to govern so large a nation and they vigorously debated where/how to place the dividing line between state and federal responsibilities/powers.  They decided, because there really was no effective alternative, to leave the line largely undefined and thus subject to the ebb and flow of subsequent political “tug-of-war.”  As to the federal government, powers assigned to each of the three branches of government were enumerated but not precisely defined.  As to the states, while a few specific powers were denied in Article 4, those that remained in place were left undefined.  As stated in the 10th Amendment, all powers not delegated to the federal government were reserved to the states (the phrase “or to the people” was tacked on almost as an afterthought).

Over the years since, the philosophy of the Supreme Court has largely set the placement of the dividing line between state/federal powers.  Chief Justice John Marshall, an ardent nationalist, ensured that the line fell to the advantage of the federal government during his 34 years on the bench, leading President Thomas Jefferson to see the jurists “sappers and miners” of the Constitution.  Marshall was followed by Chief Justice Roger Taney who for the next 28 years pushed the dividing line back towards the states.  From 1937 to 1992 SCOTUS decisions pulled the line towards the federal government while from 1992 onwards it has haltingly inched slightly back towards the states.

Even while the federalism dividing line has moved back and forth over the years, the   concept of federalism ensures that there remains an unavoidable “tension” between state and federal powers, and cases which highlight this tension continue to arise.

For instance, there is no provision in Article 1 of the Constitution which vests Congress with power to mandate that individual Americans purchase health insurance; if such a power existed at all it would seem to rest with the states.  Yet Congress made this a key feature of The Patient Protection and Affordable Care Act (aka “Obamacare”).  When the challenge of the Act reached the Supreme Court, the federal government argued, in National Federation of Independent Business v. Sebelius, that the Commerce Clause provided the requisite power.  The Supreme Court disagreed (while at the same time affirming the government could effect the mandate under their taxing power).

But even before the final vote on the Patient Protection and Affordable Care Act (aka “Obamacare”) was taken in the Congress, several states enacted so-called “nullification acts” declaring the mandate to have no effect in their states.  This is an example of the “rivalship” that Alexander Hamilton spoke of in the 1788 New York Ratification Convention when he said: “This balance between the National and State governments … forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

 None other than Thomas Jefferson and James Madison themselves provided us with the original nullification examples by way of the Kentucky and Virginia Resolutions, respectively.  These resolves, which Jefferson and Madison ghost-wrote (Jefferson was the sitting Vice-President of the United States at the time) declared the nefarious Sedition Act of 1798 to be null and void due to its blatant conflict with the First Amendment.  The two resolves were passed around to the other states but gained little traction among the Federalist-dominated state legislatures, so they died an untimely death “for want of a second,” as the saying goes.

The Supreme Court rejected the idea of nullification in Ableman v. Booth, which declared that Wisconsin did not have the power to nullify the Fugitive Slave Act of 1850, and Cooper v. Aaron, which declared that the Arkansas state legislature lacked the power to amend the state constitution in order to oppose desegregation.  It will be interesting to see whether the Court will be called on to decide on the Oamacare nullification efforts.

In summary, while federalism is what makes the American experiment in government work in our “large republic” (as Madison termed it), it brings with it inevitable and unending conflicts over where the dividing line between contending powers is to be drawn.  Nullification would seem to provide protection for the states from federal over-reach, but it’s success rate in the courts leaves its efficacy much in doubt.

© 2013 The Constitution Leadership Initiative, Inc.  This essay first appeared in the Yorktown Crier-Poquoson Post on 5 September 2013.  Reproduction for non-profit purposes is hereby given.