Refuting Nullification, Part Two
Frank Cocozzelli printable version print page     Bookmark and Share
Sat Jun 01, 2013 at 10:01:31 AM EST
In this series we have been discussing the emerging influence of Thomas E. Woods and other Catholic Right neo-Confederates, who are advocating that states nullify federal statutes and court rulings with which they disagree. Some are calling for outright secession.  The next installment explained why nullification matters and how it can lead to localized tyranny and theocracy. Then we discussed the historical argument against nullification and by extension, secession.

Now we are taking the obvious next step:  The Constitutional arguments against nullification.

At the forefront of the Catholic Right's nullification/secessionist movement is Thomas J. Woods.  His writings and speeches are frequently cited by a budding alliance of Catholic social conservatives and secessionists that extends to the likes of Opus Dei evangelist C. John McCloskey and politico Alan Keyes.  They claim that their ideas are constitutionally viable -- but they are not, and here is why.

Woods justifies nullification via "the compact theory" of government - that the United States of America government was formed by a compact agreed upon by all the states, whereby making the federal government a creation of the states. In Woods' view this give individual states the power to "nullify" laws or federal court rulings they see as unconstitutional.

But as we explored in the very last post, it is a theory with little or no basis in historical fact. If states did indeed precede the federal government, then what of states such as Alaska, California, Hawaii and Louisiana that were carved out of federal procurements of war seizure or purchase by treaty?  Both of these powers are specifically reserved to the federal government in the Constitution. Beyond that, it is a theory that ignores our nation's founding as a people.

The Foundational Argument

Inspired by Daniel Webster, Abraham Lincoln understood the inherent weakness of the compact theory upon which Woods rests his theory. Lincoln also understood that there is no legal justification for either nullification or secession. Consider this passage from his First Inaugural Address:

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it--break it, so to speak--but does it not require all to lawfully rescind it?

Putting aside the fact that even among the original framers there was a divergence of opinion over its intent, Woods and other advocates of nullification punt on the obvious conclusion; that if it were the intent of the Founders to allow for secession of a given state of mechanism, would have been inserted into the constitution. Woods' weak response is "The mere fact that a state's reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist." Directly preceding this comment, he argues, "This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies."

Woods seems to be alluding to the U.S. Supreme Court ruling for Griswold v. Connecticut, the 1965 case that overturned a state law banning the sale of birth control on the grounds that it violated the "right to marital privacy" (It is not surprising that Woods, as a traditionalist Catholic, Woods would derisively hone in on this decision). In his dissent, Justice Hugo Black then found no general "right of privacy."  Nevertheless, majorities in Griswold  (and later in Roe v. Wade) did find support for the right to privacy in the Fifth, Ninth and Fourteenth Amendments, and this is now a matter of settled law.  However, no one has been able to reasonably infer a right to either nullification or secession in the Constitution.

While Article IV of the Constitution provides for the admission of new states, there is no provision for secession (Lincoln touched upon this in his First Inaugural Address:  "Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.").

We can say the same about the nullification of federal legislation. Lincoln knew that neither secession nor nullification were not to be confused with the Right of Revolution as stated in the Declaration of Independence ("Whenever any form of government becomes destructive of these ends [life, liberty, and the pursuit of happiness], the people have a right to alter or abolish it, and to institute new government as to them shall seem most likely to affect their safety and happiness").

More importantly, the concept of any state nullifying any federal law without the proper court challenge was contemplated and rejected by the Framers in Article IV of the Constitution. More broadly in the Constitution's "Supremacy Clause" is unambiguous. The Constitution and laws made by the Congress are "the supreme law of the land."  And it doesn't give or suggest any override authority to the state governors and legislatures:  

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

The Rub

Indeed, the radical ambiguity of Woods and his cohorts about how one determines what is and is not Constitutional -- is a recipe for arbitrary and capricious behavior.  We have the Supreme Court to make those calls. And while Article III does not specifically assign that power was, as evidenced by Alexander Hamilton, one clearly intended by its proponents.

Simply put, the Woods' formulation has the potential for radical breaks with the supreme law of the land, for example on matters of matters of birth control, reproductive rights, and even the establishment of an official state religion. In sum, the denial of some of the most basic rights guaranteed to individuals by the U.S. Constitution opens the door not to a more perfect union, but to a confederation of little theocracies.

Indeed, James Madison, writing in Federalist No. 44 observed regarding the supremacy clause of the Constitution:  "Without the substance of this power, the whole Constitution would be a dead letter." He then presciently warned:  

"The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved."

That is indeed still the question.

of the United States of America; and to the republic, for which it stands; one nation, under God, indivisible, with liberty and justice for all.

by Villabolo on Sat Jun 01, 2013 at 02:26:58 PM EST

They want to interfere with people's most intimate life decisions, but they don't want to pay taxes. It's a recipe for anarchy and predation.

by khughes1963 on Sat Jun 01, 2013 at 08:11:32 PM EST

Woods makes his case in an amusing way.

The problem with Woods argument is never stated, though.  Nullification usually has little practical effect where there is a separate Federal system with courts, prosecutors and peace officers (in the post-New Deal era, FBI, ATF, IRS, etc., in the early days of the Republic, a smaller group, including Federal Marshals and Customs.)

Where Nullification has benefit is as a demonstration of political will.

Additionally, Woods correctly states that the Supremacy Clause does not apply to unconstitutional Federal laws, which are void ab initio.  These would include acts which are ultra vires for the Federal government under the Constitution.  However, the possibility that the states could act in a self-interested way and nullify politically unpopular acts that were within the ambit of Federal power is not addressed by Dr. Woods.  

I think this is why Madison came to believe these issues were best addressed by the Courts and the political system.  However, I acknowledge that Dr. Woods is correct where he states that the Courts rarely addressed these issues in practice.  The resolution of these matters was most often political and the states usually prevailed, even in the Nullification Crisis, where Jackson was able to force South Carolina to honor the Tariff, but where the Tariff was soon repealed..      


by John Minehan on Thu Jun 20, 2013 at 07:56:29 AM EST

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite"
The Federalist #45

The thing that anyone trying to understand the political structure of the United States must understand first is that it is a Federal, rather than a Unitary, Republic.

The States are not administrative subdivisions of the Federal governments, like Departments of France, they are sovereign (but not independent) states, like Swiss Cantons.

New York, for example, has ceded certain of the powers that an independent state has to the Federal government but retains a separate legal identity and retains powers (especially in the areas of public health and safety, "police powers") that the Federal government lacks.  

Under the Constitution (and unlike under the Articles), New York can't declare war on Canada (or Vermont) nor can it charge a tariff on goods coming in from Rhode Island.  However, the Federal government can only act in certain specified areas.  This is why Federal crimes require an effect on interstate commerce, for example.

The Constitution has a "Supremacy Clause," but given that the Constitution is dominant over Federal Law, then unconstitutional laws are obviously NOT "supreme."  

We have a written Constitution (unlike Great Britain) and do not have Parliamentary (Congressional?)  Supremacy  (unlike Great Britain), where Parliamentary Acts limiting gun rights trump the English Bill of Rights of 1689, for example.  Hence, the States logically ought to be able to nullify ultra vires acts of the Federal Government.  Given that Madison supported the Virginia and Kentucky Resolutions of 1798, which nullified the Alien & Seditions Act, nullification is not per se unconstitutional.

However, after 1803, when Chief Justice Marshall applied the idea of judicial review to Constitutional questions, Madison came to think that it was most prudent to leave these issues to the Courts and the political process.  As Madison wrote in The Federalist #51:

If men were angels, no government would be     necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Therefore, it is not beyond contemplation that states could nullify constitutional Federal statutes for reasons of passing advantage, which would stand the Supremacy Clause on its head.  Dr. Woods counterargument is that Federal courts are Federal bodies and the states are unlikely to get a fair hearing.  This demonstrates, in my opinion, a gross prejudice against the Constitution rather than an argument.

In practice, as Dr. Woods points out, the Courts left these issues alone.  Also in practice, as Dr. Woods does not point out, nullification is usually not effective on a day-to-day basis because there are Federal Courts, prosecutors and peace officers, who deal with these Federal Questions.

It is worth noting that nullification is often successful as a political tactic, however.  The Virginia and Kentucky Resolutions of 1798 betokened increasing opposition to the Adams Administration.  Wisconsin's Nullification of the Fugitive Slave Law was a sign of rising Northern resolve to do what was required to end the Institution of Slavery.  Even the Nullification Crisis resulted in Congress repealing the Tariff after Jackson forced South Carolina to back down.            

by John Minehan on Thu Jun 20, 2013 at 09:00:34 AM EST

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