The passage of a national health care law has resurrected among some conservative ideologues and politicians the archaic theory of “nullification.” Recently, The Associated Press counted lawmakers in nearly a dozen states who are intent on introducing nullification measures in their respective state legislatures.
What is this concept? Simply put, nullification is the belief that the states, not the national government, exercise ultimate power in determining whether a federal law is constitutional. The foundations of this argument can be traced to the passage of the Alien and Sedition Acts during the presidency of John Adams in 1798. These highly partisan laws were aimed at Thomas Jefferson and his political allies. Jefferson and James Madison fought back through the legislatures of the states of Virginia and Kentucky by having them introduce “resolves” challenging the federal statutes.
Nothing further came of it as the acts expired early in Jefferson’s first term of office.
But the germ had been planted in the body politic of the nation and it gradually became a bulwark for southern interests as the U.S. tumbled toward civil war.
Refined and given credence by slave owner and Vice President John C. Calhoun in 1828 in his famous “South Carolina Exposition and Protest,” it was seen as a shield against the encroaching numerical and economic superiority of the northern states. Sen. Robert Y. Hayne, Calhoun’s friend and colleague, used the theory on the floor of the U.S. Senate in opposition to a stiff tariff bill passed by Congress. In response to Hayne, Sen. Daniel Webster rose and with surgical precision demolished the legitimacy of nullification. Before a breathless crowd, Webster pointed out that the union had been formed by the people, not by the states. The preamble to the Constitution, it should be noted, famously starts out, “We the people.” It does not begin “We the states.”
Not long after, when push came to shove and South Carolina declared it would not collect the tariff, President Andrew Jackson threatened invasion to force collection of the tax. Cooler heads prevailed, and a compromise was reached in which the tariff was gradually lowered and South Carolina agreed to comply with the law.
Three decades later, on the eve of civil war, Lincoln demonstrated the fallacy inherent in nullification in his first inaugural address when he asked, “If the United States be not a government proper but an association of states ... (can it be) peaceably unmade by less than all the parties who made it?” It would seem that four bloody years later the country had its answer, but the issue raised its head again in the 1950s when the desegregation order of the Supreme Court was met by segregationist defiance. This time it was President Dwight Eisenhower who enforced federal law over state objections by sending the 101st Airborne to Little Rock so that black kids could attend class with white kids at Central High School.
Those who seem intent on bringing nullification back from the grave under the guise of constitutionalism and liberty are, ironically, acting in behalf of quite the opposite of both concepts. If the Constitution’s supremacy clause, which gives authority to our national constitution over state constitutions when there is conflict, is simply chopped down, then the very existence of our union is called into question. Uniform application of civil rights, civil liberties, entitlement programs, the power to tax and many, many other issues would suddenly be thrown out the window to be replaced by decisions made by 50 states in a crazy-quilt pattern of governance.
Health care is now the law of the land, not just law in those states which gave their electoral votes to the Democrats and Barack Obama.
Those who oppose the law surely have the means to modify or repeal it through actions of the Congress or a definitive decision made by the federal courts. But claiming nullification as legitimate grounds for disobeying a national law is not just nonsense, it is a misguided and dangerous sort of nonsense indeed.