By Robert Romano
Nullification is back. And it is getting heated.
For the uninitiated, nullification is a theory of constitutional Tenth Amendment powers wherein states are said to have the power to declare federal law that it deems unconstitutional to be null and void within the boundaries of that state.
Yes, that nullification. The one that compelled Congress to authorize military force and Andrew Jackson that same year to mobilize the armed forces against South Carolina to execute a federal tariff law in 1833.
The same nullification that has been struck down as unconstitutional every single time it has come up in federal court, in United States v. Peters (1809), Osborn v. Bank of the United States (1819), Ableman v. Booth (1859), Cooper v. Aaron (1958), and others, as recently outlined in an Americans for Limited Government Foundation paper by Dr. Bradley Gitz of Lyon College.
The same nullification that had James Madison almost to his dying day speaking out against the doctrine, and defending himself against the charge that he had ever supported it. Of nullification, in 1834, he wrote, “A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.”
You know, the doctrine that outright defies the Constitution’s supremacy clause and attempts to overthrow the federal judiciary as the final arbiter of what is and is not constitutional.
Most recently, the issue has come up between nationally syndicated talk show host and best-selling author Mark Levin, arguing against nullification, and the Tenth Amendment Center, the Washington Times, Fox News’ Judge Andrew Napolitano, and the John Birch Society’s New American arguing in favor.
Back to South Carolina
But, before we get there, there is a background to the fight between Levin and the Tenth Amendment Center that takes this issue very much out of the philosophical realm into the very real politics of how states ought to respond to the continued federal implementation of Obamacare.
Perhaps fittingly, the issue has come up again in none other than South Carolina. In April 2013, the state house there passed legislation 65 to 34 that declares Obamacare to be “null and void,” criminalizes compliance of the law by state insurers, and even advocates non-compliance by citizens by offering to pay the fines of those who refuse to follow the law’s individual mandate.
Dr. Gitz summarizes the problem with this approach: “to criminalize compliance with federal statutes takes us several steps further than even an outright declaration of unconstitutionality would… And to use state revenue to ‘make whole’ those penalized with fines for failing to conform to federal law amounts to something never before contemplated; more precisely, an effort to use public revenues to directly subvert federal law.”
For now, the bill is in the state senate this week as it reconvenes, with Sen. Tom Davis offering an amendment to the legislation that would gut its nullifying provisions, including the tax deduction and criminalizing of Obamacare’s implementation.
In a statement, Davis spoke clearly against nullification, “[O]utright nullification, in the sense of declaring any implementation of the ACA within the borders of South Carolina to be a criminal act, is not an available remedy.”
The amendment, however, according to Davis would “aggressively pursue all of the other ways in which it can to slow the spread of that infection as best they can until such time as Congress repeals the Affordable Care Act.”
Included is a provision for state licensing and regulation of so-called Healthcare.gov navigators, those nonprofit groups receiving federal money to help people sign up for health insurance on the federal health exchange. The ostensible goal would be to ensure that nobody is being signed up for subsidized care that does not qualify under South Carolina law, where Medicaid has not been expanded.
Nullification won’t work to stop Obamacare
One can only hope Davis’ amendment is what passes, and not the House version of the bill.
To be clear, at Americans for Limited Government, we have been at the forefront in opposing Obamacare, including working closely with Senator Ted Cruz (R-Texas) on the recent defunding effort.
But this proposed legislation will do nothing to stop the health care law’s implementation in South Carolina. It also risks a constitutional crisis that will force the White House to either back down and let Obama’s signature achievement wither under a regime of state non-compliance, or force him to enforce the law.
The worst case scenario would be that the South Carolina law passes, and then empowers Obama to turn the situation into a modern-day Selma or Little Rock, with the National Guard called in to police state Medicaid offices, insurers, hospitals, and doctor’s offices — all to ensure the health care law is in fact implemented.
Don’t think it can happen? See Andrew Jackson. See Dwight Eisenhower. Obama has shown no evidence of backing down. So perhaps the sort of confrontation outlined above is precisely what advocates of nullification relish.
But it is hard to contrive a more divisive outcome for the nation, and at the expense of the people of South Carolina who would be compelled at the barrel of a gun into yet another federal regime. Is this the direction we really want the debate over the health care law to go this year?
Hopefully, Davis is not persuaded into adopting the extremely flawed doctrine of nullification. But so far, he is not taking the bait. At TheState.com, Davis is quoted stating, “The conversation really has gotten off the rails a little bit. Everybody talks about nullification. This isn’t nullification. We can’t nullify.”
That is good that Davis is saying that, because the last thing this country needs is another crisis over this issue.
Mark Levin rescues James Madison’s reputation
Talk show host and author Mark Levin, for his part, waded into the debate, somewhat inadvertently, stemming from his appearance on C-Span’s Book TV when he stated, as a matter of fact, that James Madison rejected nullification.
That he rejected it is undeniable.
It’s plain enough to read from Madison’s own writings. On Facebook, Levin cites an 1830 letter Madison wrote on the matter, in which he plainly states he never supported nullification, and had been misrepresented over the years.
Wrote Madison, “It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against, in the language used; and it is due to the distinguished individuals, who have misconceived the intention of those proceedings, to suppose that the meaning of the legislature, though well comprehended at the time, may not now be obvious to those unacquainted with the contemporary indications and impressions.”
Those “erroneous constructions” Madison wrote of were of the Virginia Resolution adopted in 1798 against the John Adams administration’s Alien and Sedition Acts that the legislature felt was unconstitutional.
That resolution stated, “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
Yet, nowhere does the resolution endorse or even mention nullification. As Madison noted in 1830, the legislature went out of its way to avoid that appearance: “It is worthy of remark, and explanatory of the intentions of the legislature, that the words ‘not law, but utterly null, void, and of no force or effect,’ which had followed, in one of the resolutions, the word ‘unconstitutional,’ were struck out by common consent. Though the words were in fact but synonymous with ‘unconstitutional;’ yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word ‘unconstitutional’ alone was retained, as not liable to that danger.”
Leaving no doubt, Madison in his Report of 1800 states unequivocally that the Virginia Resolution was stating the opinion of that legislature on the constitutionality of the Alien and Sedition Acts: “The declarations, in such cases, are expressions of opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force.”
Those declarations, in short could not, repeat not “be deemed in any point of view an assumption of the office of the judge.”
Pretty simple, right? Did the Virginia legislature say it thought the law was unconstitutional, or did it bar implementation of that law in the Commonwealth’s borders? Plain as day, Madison says it was just an opinion, that it is still up to judges to say what the law actually is.
In 1834, he affirmed that position, that the only purpose of the Virginia Resolution was “to produce a conviction everywhere, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts.”
Nullifiers: “Pay no attention to what Madison actually wrote!”
Not so, reply the nullifiers.
Joe Wolverton at the New American replied with the missive, “Correcting Mark Levin’s Repeated Misrepresentation of James Madison.”
The Tenth Amendment Center reacted, “Mark Levin Doubles Down on James Madison and Nullification. He’s Still Wrong.”
Michael Lotfi at the Washington Times responsed to Levin, “Is Mark Levin the poster child for nullification?” that makes the remarkable argument that Madison and Levin, despite having explicitly stated repeatedly they rejected nullification, actually supported it.
For Madison’s part, the verbal gymnastics are rather creative in order to recreate his alleged support of nullification. They include citing the Virginia Resolution as somehow striking down enforcement of the Alien and Sedition Acts in the Commonwealth even though it was clearly a non-binding resolution.
Or, citing his 1834 writings on nullification that explicitly rejected the idea: “it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.”
Pretty compelling evidence there, guys.
Of course, as is clear from the historical record, misattributing Madison as some sort of champion of nullification is a pretty old American tradition with about two centuries of experience. Why stop lying now?
It’s like those fake Founder quotes you always find on the Internet that are designed to prove any point that anyone wants to make. After all, because, if it’s on the Internet, it must be true!
“A more fatal inlet to anarchy, cannot be imagined”
Levin, for his part, is defending against anarchy, not endorsing it. He is seeking to restore the constitutional rule of law via the Article V states convention process for proposing amendments to the Constitution, as he did in his new book, The Liberty Amendments.
And why was that Article V process included? Because George Mason, the father of the Bill of Rights, demanded that it be in there at the Constitutional Convention. According to Madison’s notes at the convention, Mason feared that if Congress were the only body that could propose amendments, because it would “depend… ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.”
The Article V power for states to amend the Constitution on their own, unlike nullification, actually appears in the Constitution, and is the states’ final legal recourse should the republic ever devolve into a tyranny.
If there was any legal justification for nullification, it would have to be that the Constitution does not, either implicitly or explicitly, delegate to the Supreme Court the power to say what is and is not constitutional, and that therefore the same power is reserved by the States or the people under the Tenth Amendment.
Yet, the Framers clearly intended that the courts would be the final arbiter on the Constitution. Madison, in his Report of 1800, says as much. In the Federalist No. 78, Alexander Hamilton in 1788 wrote of the judicial branch, “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
While the well-intentioned notion of nullification may seem like a viable means of dealing with an out-of-control federal government, it is impossible to conclude that it is justified constitutionally, and would not obliterate the very constitutional order it seeks to uphold.
(Correction: An earlier version of this post mistakenly attributed the Tenth Amendment Center’s preference of the House version of the South Carolina nullification bill over the proposed Davis amendment.)
Robert Romano is the senior editor of Americans for Limited Government.