Tuesday, April 16, 2013

Nullification Null and Void

The previous post noted the efforts of many tea party chapters to stop the Patient Protection and Affordable Care Act--aka Obamacare--by means of nullification: the alleged constitutional authority of a state to declare a  federal law unconstitutional.  This project of The Tea Party Movement enjoys the support of  libertarian scholars such as the Cato Institute's  Tom Woods and lesser known activist groups like The Madison Forum. Supporters of nullification find their constitutional justification not only in their particular conception of the origins and structure of our federal union, but also in the writings of Thomas Jefferson and James Madison. There is one major problem:

James Madison opposed nullification.

Advocates of nullification point to Thomas Jefferson's Kentucky Resolutions and James Madison's Virginia Resolution. Jefferson and Madison wrote these documents in response to the Alien and Sedition Acts of 1798, which attempted to suppress opposition to the policies of the Adams administration. (see the background in the previous post.) The resolutions used the terms "null and void" and "unconstitutional" in their description of these noxious acts of the U.S. Congress. The Kentucky and Virginia Resolutions were passed by the state legislatures and presented to their respective state governors, urging them to forward these resolutions to other states governments for consideration.

The other states gave only a tepid response to the resolutions and expressed confusion about just what these resolutions claimed. Did Kentucky and Virginia claim the right to confirm or reject laws passed by the United  States Congress? Was this a prelude to secession and the disintegration of the federal union?

In order to clarify their messages, both state legislatures the following year passed additional resolutions. The Kentucky Resolution of 1799 proclaimed fidelity to the union in no uncertain terms. In addition, it clearly stated that the original resolution expressed the opinion of the legislators and that it recognized the legitimacy of all federal laws:

 "That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST."

The Virginia state legislature likewise issued a report clarifying their resolution of the previous year.The much longer and more detailed Virginia Report of 1799  explained that the original resolutions of 1798 were an expression of opinion and contrasted it with legally binding acts of the judiciary:

"But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.

Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged."

In other words, the legislatures of Kentucky and Virginia expressed their opinion about the constitutionality of the Alien and Sedition Acts; the legislatures did not enact legally binding legislation that set aside federal laws.

James Madison reaffirmed this judgment several decades later.

In 1832, a South Carolina convention met and passed an Ordinance of Nullification  presuming to declare the Tariffs of 1832 and 1833 unconstitutional. (Again, see previous post). Like modern advocates of nullification, the supporters of South Carolina's nullification appealed to Jefferson's and Madison's Virginia and Kentucky resolutions of 1798. Unfortunately for them, James Madison still lived in retirement in Orange County, Virginia. Contemporaries occasionally solicited his opinion on the political issues confronting second generation American leaders. They did so on this occasion as well. And in a piece written for the North American Review and in several private letters, Madison opposed the doctrine of nullification and asserted that its advocates had completely misconstrued the original Virginia and Kentucky Resolution.

Madison reaffirmed that these resolutions carried no legislative or judicial force whatsoever and only expressed the opinion of the legislatures that passed them. Their purpose, he explained, was to rally public opinion against the Adams administration in order to seek a political remedy. And this they did, as Adams lost his bid for reelection. The Jefferson administration pardoned those American convicted under the force of those acts and let the acts expire.

 More important, Madison called nullification a "preposterous and anarchical pretension." He wrote that federal laws could not "be altered or annulled at the will of the states individually." To argue otherwise was to pretend that 1787 did not occur and throw the country back into the confusion of the 1780s under the old Articles of Confederation.  Madison accused the nullifiers of advocating a political heresy that "a majority government is of all other Governments the most oppressive" and that they "strike at the heart of republicanism."

We tea partiers need stop with the fancies about nullifying Obamacare and arresting officials from the Department of Health and Human Services. Instead, we need to follow Madison's example and continue to mobilize public opinion against the Patient Protection and Affordable Care Act and organize  in order to implement a political solution to the problem.

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