Since my last article, Nullification is the answer to Obama/SCOTUS lawlessness, I’ve heard the usual objections raised by people like Mark Levin (whom I like, but he’s dead wrong on this issue). Therefore, I’ve decided to list specific answers to the most common objections to Nullification. Remember, Nullification doesn’t nullify valid laws, but only the enforcement of invalid laws. Invalid laws are already null and void from their beginning (“All laws which are repugnant to the Constitution are null and void.” — Marbury vs.Madison, 1803). Anybody who opposes Nullification — whether they realize it or not — supports the enforcement of invalid laws, and thus, supports tyranny, so I urge you to think carefully about this.
1) “Nullification violates the Constitution’s Supremacy Clause.” — The Supremacy Clause in the Constitution protects only Constitutional laws, and Nullification only applies to UN-Constitutional laws, so there is no conflict. What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.” (Emphasis mine).
2) “Nullification is unconstitutional; it nowhere appears in the Constitution.” — Is everything we are permitted to do listed in The Constitution? Of course not! The Constitution lists enumerated powers conditionally granted to the government, some examples of things they cannot do, and some examples of the rights of the states and the people. The Ninth Amendment makes clear that the list of rights in it IS NOT COMPLETE (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), and that every right that is not explicitly granted is retained by the people and the states (The Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). It is not an exhaustive list of things we can do, which would be impossibly long.
3) “The Supreme Court declared itself infallible in 1958.” — The case Cooper v. Aaron (1958) is sometimes raised against nullification. Here the Supreme Court went completely off the rails and declared its statements to have exactly the same status as the text of the Constitution itself. But no matter what absurd claims the Court makes for itself, its powers are clearly enumerated in The Constitution, and very obviously don’t include the right to declare itself a ruling oligopoly. The ruling was mocked by many legal scholars, and has been largely ignored.
4) “Nullification was the legal doctrine by which the Southern states defended slavery.” — To the contrary, Nullification was used to free slaves who had escaped, and were threatened by Fugitive Slave Laws. Why would the Southern states need Nullification when slavery was legal?
5) “Andrew Jackson denounced nullification.” — Andrew Jackson was a slave-holding jackass who slaughtered Native Americans. His rationale in criticizing Nullification was dismantled mercilessly by Littleton Waller Tazewell.
6) “You must be a ‘neo-Confederate.” — Whatever this Orwellian agitprop term is supposed to mean, it’s obviously not intended as flattery! Jefferson Davis, president of the Confederacy, denounced nullification in his farewell address to the U.S. Senate. South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision. Why did they bitch about Nullification? Because Northerners were using it to free slaves! Technically, what Lincoln and MLK Jr. did in liberating African Americans from the enforcement of bad laws against them was a form of Nullification.
7) “James Madison spoke against the idea of nullification.” — Madison flatly contradicted his previous position in an 1830 letter, saying he meant only that the states had the right to get together to protest unconstitutional laws (unfortunately, he has quite a handful of self-contradictions on his record). Madison’s claim was greeted with skepticism. People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place? Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied? And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, 2012) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the Virginia Resolutions of 1798
8) “Nullification has a ‘shameful history.” — Was it “shameful” for the northern states to do everything in their power to obstruct the enforcement of the fugitive-slave laws (whose odious provisions they did not believe were automatically justified merely on account of the fugitive-slave clause)? Was it “shameful” when the Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional and void, citing the Kentucky Resolutions (written by Thomas Jefferson, and endorsing Nullification) of 1798 and 1799 in the process?
True, some racist Democrat losers tried to abuse Nullification to resist the Civil Rights movement (a movement which was started by Dwight Eisenhower in the 1950’s), but that was never a valid employment of Nullification. Nullification can never be properly used to violate Natural Law or valid constitutional law.
9) “Nullification would be chaotic.” — No; history has shown that people are not inclined to take the risks entailed by Nullification “for light and transient causes” (Jefferson). It was described (before it was named) by our Founding Fathers as a “Trump Card” to ensure that our rights are not trampled by runaway government (like one that would create Fugitive Slave Laws).
10) “The compact theory may apply to the first 13 states, but since all the other states were created by the federal government, we cannot describe these later states as building blocks of the Union in the same sense.” — Horsepucky! The American position has always been that an American state is created by the people, not the federal government. Jefferson himself amplified this point in the controversy over the admission of Missouri. The people of Missouri had drafted a constitution and were applying for admission to the Union. Were they not admitted, Jefferson told them, they would be an independent state. In other words, their statehood derived from their sovereign people and its drafting of a constitution, not the approval of the federal government.
11) “The Civil War settled this.” — This may be the dumbest objection of them all. The Civil War was not fought over nullification, and at the time of the war it was the northern states that had much more recently been engaged in nullification. The legitimacy of nullification involves a philosophical argument, and philosophical arguments are not – at least to reasonable people – decided one way or the other by violence. No one would say (for example), when confronted with the plight of the Plains Indians, “Didn’t the U.S. Army settle that?” If the arguments for nullification make sense, and they do, that is what matters. Reality is what it is. The compact theory, from which nullification is derived, does describe U.S. history. There is no way to evade that brute fact.
The first Chief Justice of The United States (and one of the authors of The Federalist Papers), John Jay, told jurors: “You have a right to take upon yourselves to judge [both the facts and law].”, thus affirming jurors rights to nullify bad law. If you are ever charged with a “hate crime” for exercising your First Amendment rights (or some other such abuse of law), you may find yourself appreciative of the fact that sympathetic jurors can nullify the bogus charges against you.
Steve J. Williams is the author of “What Your Atheist Professor Doesn’t Know (But Should)”.
*Some of the wording in this article was derived from Professor Thomas Woods’ essay “Nullification: Answering the Objections”.