Thursday, December 30, 2010

Nullification nonsense: How conservatives mistake the Constitution for the Articles of Confederation

Guest post by Publius 

Publius has lived in and spent most of his life thinking about Washington, D.C. He is an attorney, an avid sports fan, and the editor of The Fourth Branch.

(Ed. note: This is Publius's second guest post for us. You can find his first, on George Will and "engaged justices," here. -- MJWS)


Many have noted the irony of conservative politicians running on a platform of undying love for and understanding of the Constitution while simultaneously advocating the repeal of many of its significant provisions. Vocal elements of the conservative base, primarily centered on the Tea Party and pundits on Fox News, have advocated for repealing part of Section 1 of the 14th Amendment (citizenship) and all of the 16th Amendment (income tax) and 17th Amendment (direct election of Senators). Those would be significant changes to the nation's governing text, but they pale in comparison to the most recent calls for change involving nullification.

The so-called "Tenther" movement holds that the Congress continues to pass "unconstitutional" laws that are beyond Congress' power to enact, and that the states have the right, under the Tenth Amendment, to reject all such laws. The legal theory behind the Tenther movement isn't novel, but it is one that has been soundly rejected -- politically, legally, and militarily. The doctrine was used by the South to justify its continued use of slavery prior to the Civil War. It led to the South invoking nullification's close relative, secession, as the ultimate exercise of state sovereignty. Military elimination of the doctrine and the racist policies supported by the doctrine cost the lives of over 600,000 Americans. The Constitution itself was born following a failed history with a legal document codifying the concept of nullification -- the Articles of Confederation.

Given the racist past of nullification and secession, and the severe strain both policies placed on the nation and the Constitution as a whole, one would think the conservative movement would stray far from such policies. Instead, nullification has found new life and even a place on the ballot in many states. In Oklahoma, Missouri, Arizona, and Colorado, voters have been asked to "nullify" the recent health-care law, and nullification passed in each of those states but Colorado. Virginia recently passed a law through the legislature "repealing" health care with respect to that state. None of these efforts have any legal significance (which ought to be a sign that they aren't constitutional, but I digress).

Of course, health-care reform isn't the only law targeted by Tenthers for nullification. According to the Tenth Amendment Center (which is pushing many of the nullification efforts), other laws targeted for nullification include medical marijuana laws, firearm control laws, cap and trade (which hasn't even been enacted yet), EPA regulations, and more. In addition to repealing laws, the Tenthers advocate passing laws or constitutional amendments which restrict the definition of "interstate commerce" (which would restrict Congress' ability to pass laws, because many laws are passed under the Commerce Clause), require state approval of federal tax laws, and require a return to the gold/silver standard.

It ought to be obvious that such efforts, if enacted, would effectively eliminate the federal government. If the federal government, for example, could not pass a budget without state approval, or could not raise taxes from residents of a state until that state consented, the federal government would be crippled. How do we know this? Because it was already tried once before and it failed miserably with the Articles of Confederation.

Under the Articles of Confederation, the Confederation Congress could pass laws, but the power of enforcement lay with the states. Furthermore, Congress itself had no power of taxation -- all revenue had to be requested by the states. Substantively, such provisions in the Articles of Confederation are identical to granting states under the Constitution the power of nullification. Under the Articles of Confederation, the federal government neared insolvency, inflation of the "continental dollar" skyrocketed so much that the saying "not worth a continental" was born, and the military, desperate for funding which rarely came from Congress, was authorized to confiscate whatever property it needed to carry on the Revolutionary War.

Notwithstanding these clear lessons from our past and the bloodiest war fought in U.S. history, many in the conservative base continue arguing that embedded in the Tenth Amendment is the state right to nullify unconstitutional laws. Taking the next step in the logical nullification process, even conservative elected officials have articulated a state right to secession, including Republican Governor Rick Perry of Texas, Senator Jim DeMint (R-SC, arguably the head of the Tea Party), Rep. Steve King (R-IA), Rep. Ron Paul (R-TX), and more.

Arguments for nullification and even secession are, more subtly, a rejection of Article III of the Constitution, which establishes the judiciary and gives it the sole right to interpret the Constitution, and Article VI of the Constitution, which establishes constitutional and federal supremacy. Any state that considers a law to be beyond the powers of Congress can challenge that law in the courts (as many have done with the health-care law, for example). The courts then make a determination as to the constitutionality of that law and, provided it is constitutional, the law is then binding upon all states pursuant to Article VI of the Constitution. Nullification shifts that decision-making process away from the judiciary and into the hands of the state political classes. In effect, the role of the judiciary as a constitutional arbiter is eliminated.

Nullification proponents are quite familiar with the role of the judiciary and its ability to nullify unconstitutional laws. Simply put, such proponents have zero confidence in the judiciary and seek to re-write Article III.

The Tea Party's admiration for the Constitution appears to end where Article III, Article VI, and Amendments 14, 16, and 17 begin. It is an admiration that ignores the historical fact that the Constitution was enacted to establish a stronger central government as a replacement for the weaker state-centered government that was failing miserably. It is a devotion that calls for violent "second amendment remedies" when Congress and/or the courts take an action with which one may disagree. It is a love that calls for a return to policies that supported the racial oppression of millions to the shame of a nation. It is a love of the Constitution that would cause its demise.

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  • Believe it or not, I'm a self-declared member of the Tea Party, and I completely agree with you. The 10th Amendment Center is attempting to coopt a legitimate movement, and unfortunately, too many of us are not putting in our due diligence to investigate this nullification crap. What's more, is that tea party political philosophy (smaller federal gov't, less taxation, more federalism), is winning, so why we feel the need to pursue this failed strategy of nullification is beyond me. I fear we have one too many drama queens determined to play Thomas Jefferson in real life.

    By Anonymous Anonymous, at 2:01 PM  

  • This comment has been removed by the author.

    By Blogger The Fourth Branch, at 4:53 PM  

  • Anonymous- Thank you for your thoughtful comment. I couldn't agree with you more. The 10th Amendment has an important role to play in our constitutional structure, and it is a shame to see it undermined by those who profess to be its most ardent supporters. Hopefully more thoughtful approaches like yours prevail and we can leave nullification in the past where it belongs.

    By Blogger The Fourth Branch, at 4:57 PM  

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