There has long been a legal theory that the states have the right under our constitution to nullify such federal laws as they may unilaterally determine to be unconstitutional. One of its earliest proponents was Vice President John C. Calhoun, who had hoped to employ the strategy in a dispute over tariffs. His modern-day adherents wish to pursue this strategy anew. The problem is that the idea has been roundly rejected by the federal judiciary, and one would have a difficult time demonstrating a successful historical precedent. Most recently, in the 1950s, and 1960s, states in the South attempted to nullify federal law on the matter of desegregation. In 1958, in Cooper v. Aaron, the state of Arkansas attempted to nullify the US Supreme Court’s decision in Brown v. Board of Education. In another attempt at the related concept of interposition, the Supreme Court affirmed a lower court’s decision to reject Louisiana’s attempt to maintain segregation of the schools. Repeatedly, the US courts have rejected attempts at nullification or interposition, and in that case, effectively derided such attempts as “no more than a protest, an escape valve through which legislators blew off steam to relieve their tensions…” In short, while the proponents of these two strategies will continuously argue that theirs is the proper approach to our growing constitutional crisis, there is very little in the way of case-law or constitutional law to support their assertions. Bluntly, the constitution says what it says, and we can no more imagine into it a nullification doctrine than we may assert any other ghostly doctrine into its text. No apparitional legal doctrine is necessary while the constitution provides a solution within its text.
Some would claim that the states of Colorado and Washington, among others, are engaged in an act of nullification with respect to their legalization of marijuana. The problem with this is that neither of these states have claimed to have the authority to indemnify citizens involved in the marijuana trade against federal law. If federal law enforcement agencies decide to crack down in either of these states, or any other, you will quickly see that there is no nullification of any sort, and neither of the states have claimed a right to interpose between residents and the federal establishment.
With all of this in mind, it begs the question: Why do proponents of this particular, historically ineffectual legal doctrine continue to press forward? The answer may lie in a sort of juvenile disregard for established authority and case-law. Their claims rest on John C. Calhoun’s basic assertion of a state’s right to nullify federal law, and to interpose between the federal government and its residents. As we have seen, such claims have never been upheld in any substantive manner by the federal judiciary, and Calhoun also asserted the right of secession. In 1832, the theory of nullification had its first significant trial, in what would come to be termed the Nullification Crisis. In this case, South Carolina’s legistlature declared the Tariffs of 1828 and 1832 to be unconstitutional. The state claimed a sovereign authority to ignore the federal statute, and began military preparations to resist federal enforcement. A compromise Tariff was enacted in 1833, and South Carolina repealed its nullification ordinance. Both sides claimed victory, but the federal establishment had been preparing to enforce the 1832 Tariff by force if need be, and had enacted a statute for those purposes.
Naturally, the Civil War was in part about the authority of states to nullify, ignore, or otherwise refuse to comply with federal law, or to interpose between the federal government and states’ residents. The entire Southern strategy during the 1950s and 1960s was to attempt various forms of nullification or interposition. All such attempts failed in the face of federal use of force or the threat thereof. One can scarcely imagine why it would be that contemporary proponents of these approaches would continue to advocate the unworkable. It is as much a senseless, juvenile approach to the serious problems of federal overreach as any sort of serious movement. The end of the nullification movement will come on the day the federal establishment decides it is time to dispense with it, and begins to strictly impose its will on those who would actually attempt it. It begins to take on the character of a ranting, stomping toddler, who when deprived of his pacifier, throws a tantrum that has no force and no standing.
It is important to understand that what is in the constitution is in the constitution, and what isn’t there simply isn’t. While one can point to this statement or that of some framers of the US Constitution for authority for nullification or interposition, where one cannot point with any credibility is the US Constitution itself. More, one cannot show any successful case history upholding this approach. It simply doesn’t exist, contrary to the bleating of the sheep who have been roped into this thinking. They speak often of natural rights, and as a proponent of natural law, I am always willing to listen to such arguments, but I am also a realist in the sense that setting all of the flowery speech about natural rights aside, the problem always lies in the legal recognition of said rights. Like some of nullification’s proponents, I long for the day when the full scope of natural rights of man are recognized and enforced at all levels of government, but I also understand that in order to see such a formal recognition, it will take explicit changes to our constitution to enforce the claims we might make to them. Rights must exist in the text of our laws, or risk doing without them. As we have seen in administration after administration, and Congress after Congress, there exists no shortage of those who will extend federal law to every conceivable extent because there is no explicit warrant against it in the US Constitution. The ninth and tenth amendments notwithstanding, it has ever been that an existing federal law seems in nearly all cases to trump a claimed right not explicitly guaranteed.
With all of this in mind, I wish the nullifiers well, and I hope when they’ve blown off some of the steam, they’ll come ’round to a more rational, proven approach. We can amend our constitution, and we can do so by two explicit methods laid forth by Article V. One need not search for the political writings of John C. Calhoun, Jefferson Davis, or even James Madison or Thomas Jefferson to affect change under our constitutional system. Instead, one need observe only its text, applying the counsel provided by history to embark on a course already established.
Some of the “nullifiers” deride Mark Levin’s efforts toward an Article V amending convention of the states, writing in ominous tones about the potential for a “runaway convention.” This sort of scare tactic is the sort of thing one might expect from people bent on their own agenda, and while caution is always merited when fiddling around with our supreme law, I think it’s also fair to suggest that we can do so without substantial danger. Do I endorse all of Levin’s proposed amendments? No. Do I think many of them have merit? Absolutely! Do I believe we can afford to further obfuscate the matter by pursuing phantasms of nullification that have never availed a peaceable, workable solution? No. I do not wish to pour energy and resources into the pursuit of a doctrine held to be little more than a temper-tantrum. Let us admit that to restore our constitutional system, we must first resolve to live within its bounds as a matter of faithfulness to its principles. That’s the whole point, after all, so that if Article V was good enough for our framers, then it shall likewise be good enough for me.