The Return of Nullification
A new meme is running around in the background of American politics today, one that, if its logic takes hold, would radically restructure the power relationship that currently exists between the federal and the state governments.
I’m talking about the return of nullification.
Nullification is a doctrine that holds that states have the right to reject—nullify—laws that states believe violate their rights, or that overstep the federal government’s proper authority (as determined by the state governments themselves). Originally asserted in the 1830s as part of a tax debate, the doctrine went on the ground Southern resistance to any apparent encroachment on the right to own slaves.
Over time, the notion that states could nullify federal laws fell away. The Civil War, federal regulation of railroad rates and the food supply (and numerous other programs), the civil rights legislation of the 1960s and the elaborate grants-in-aid programs by which US tax money is shared with state governments (in return for state compliance with federal rules) all shifted the balance of power from the states to the federal government. There was resistance to this shift, but it happened nonetheless.
But it’s back. One feature of the tea party movement is contained in the concept of “10th Amendmenters.” Such persons assert that since the 10th amendment reserves the powers not specified in the Constitution to the states, or to the people, the federal government is not authorized to take any action not explicitly described in the Constitution.
I can offer a recent account of this logic through a recent letter to the editor from my local, strongly Republican paper. I have excised identifying information, but the writer asserts:
"The advocates of strong states refer often to several of our Founding Fathers as the source of these ideas. In fact, our country’s very name, the United States of America, shows that the original plan put the states first.
Jefferson and Madison wanted the states to be sovereign, reserving to the national government only a limited number of powers to help the states work together.
A source of confusion is the supremacy clause, which many mistakenly think gives the national government dominance over the states in all matters. But that ignores the whole clause which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.” Any law that exceeds the limits set forth in Article 1, Section 8 are not made “in Pursuance thereof.” If any national law is not in compliance with that section, it can be declared by the state to be null and void.
Since the Constitution is an agreement between states, it is a state’s right to disagree with unconstitutional law. States’ powers under the 10th Amendment have been upheld by the 1997 Supreme Court in Printz v. United States. It is time for states to reassert their power because it is clear that the national government is out of control.”
There’s actually so much wrong here it’s hard to unpack it all. “Several of our Founding Fathers” are, of course, not ALL of the framers. (And since they’re all dead, it’s not clear to me why they get a vote on this matter but I don’t.) The question of which term matters more, “States” or “United,” was effectively settled by the Civil War—it’s “United.” “A state’s right to disagree with unconstitutional law” is, in fact, contingent on the law being declared unconstitutional by the Supreme Court, not the state’s legislature. Article 1, Section 8 contains something called the “necessary and proper clause,” which explicitly gives Congress the power to make laws not directly defined in Section 8. And, of course, there’s the whole pesky 14th Amendment, which radically amended the power of the federal government viz a viz the states—and which, since it comes AFTER the 10th Amendment, trumps—amends—it.
Let me be clear: it is perfectly legitimate to insist that we ought to amend or overturn the 14th Amendment and restructure the constitutional balance between states and the federal government once again. It’s just not okay to claim the 14th Amendment doesn’t exist, or that it is somehow unconstitutional because it essentially overturned the 10th Amendment—the one you think ought to “count.”
But such arguments of logic are not the point. The point is 10th Amendment people are insisting on the radical restructuring of the balance of power between the federal government and the states, and things like the civil rights laws of the 1960s, equal protections for the aged and the infirm, and yes, the recent health care reforms are in play. The fight is real, and consequential. We need to pay attention.