Friday, April 12, 2013

Some Tea Partiers Sipping the Psilocybin

The Tea Party Movement,  a dynamic, force of conservative populism, has made and will continue to make a     significant and hopefully enduring impact on our politics.

In our zeal to promote constitutionally limited government, fiscal responsibility, and free markets, some of us have allowed ourselves to harbor some hallucinations about the original intents of our Founding Fathers. Unlike our eighteenth century namesakes who tossed over 300 chests of tea into Boston Harbor to prevent the collection of taxes,  we have sat down for tea time and have been sipping the Psilocybin.

So what is our hallucination? It is the illusion that the Constitution makers envisioned a political system that allows the states to declare federal laws unconstitutional. The popular name for it: nullification.

The term first emerged in the fall of 1798. Congress had enacted the Alien Act and Sedition Act during the summer of 1798 in response to attacks from the press on the Adams administration and its attempts to preserve neutrality in the war between Britain and France. The acts granted authority to the federal government to expel foreigners deemed dangerous to the peace and safety of the United States and to prosecute anyone who published "false, scandalous, and  malicious" writings against the government.

In response to these acts, Thomas Jefferson secretly wrote what became known as the Kentucky Resolutions. He gave them to Wilson Cary Nicholas, urging him to forward them to any sympathetic member of the North Carolina state legislature for consideration. Instead, Nicholas gave them to John Breckinridge of Kentucky. A passage in one of the resolutions asserted the right of a state "to nullify of their own authority all assumptions of power by others within their limits."

In concert with Jefferson,  James Madison wrote the Virginia Resolutions. Fellow Virginian John Taylor introduced them into the Virginia state legislature. Madison's resolutions asserted the rights of states to "interpose" when federal laws exceeded the bounds of the Constitution.

These resolutions failed to create much of a stir at the time.  They assumed a much greater importance, however, when in 1832  South Carolina provoked a showdown with the federal government after it enacted the Ordinance of Nullification. The brainchild of John Calhoun, the ordinance "nullified" the Tariffs of 1828 and 1832. Its defenders claimed to follow the precedents of the Virginia and Kentucky resolutions. In response, President Andrew Jackson condemned the action in a message to Congress, who later enacted a "force bill" empowering the President to use force if necessary if nay state attempt to obstruct the collection of duties owed the United States government.

Now some Tea Partiers have embraced the idea of nullification as a means to stop Obamacare-- the Patient Protection and Affordable Care Act.

In the first place, this is a bad idea from a utilitarian point of view. We tea partiers have enough trouble getting our message out through the "firewall" of the mainstream media. We want a "national conversation" (to use a now trite and empty phrase) about constitutionally limited government, fiscal responsibility, and free markets. Instead, the mainstream media claims we are the tools of Freedom Works or Wall Street. If that is not bad enough, we are racists as well.

To resurrect to the old discarded idea of nullification will only reaffirm the slanderous accusations of the mainstream media. They will connect the imaginary dots: nullification . . . John Calhoun . . .  states rights . . .  racism . . .  slavery . . .  secession . . .  civil war.

In the second place, this is a bad idea because it is unconstitutional. Interestingly, James Madison, the father of the Constitution and the author of the Virginia Resolutions, lived until 1836. He witnessed the nullification crisis of 1832. Contemporaries solicited his opinion on the controversy. He declared, in no uncertain terms, that the doctrine of nullification was unconstitutional and that its supporters completely misconstrued the meaning of his Virginia Resolutions in their efforts to defend the doctrine.

The next post will see how.

James Madison: My Favorite Founder

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