Today’s debate over ‘nullification’ actually began with Founding Fathers
A constitutional duel continues in Missouri legislation
Sunday, May 4, 2014
Do state legislatures have the authority — the right — to nullify federal laws, as our own Missouri General Assembly appears poised to do?
Last year, a majority of Missouri lawmakers enacted a statute nullifying all federal gun laws and making it a crime for federal agents to enforce them here. Although the bill was vetoed by Gov. Jay Nixon, a similar proposition is likely to be passed by the end of this session.
No doubt our Founding Fathers would recognize this debate as one of their own.
The theory’s origins
The origins of the nullification theory date back to 1789 when President John Adams and the Federalists in Congress — fearing an undeclared war with France and desiring to silence trouble-makers and opponents — signed into law the Alien and Sedition Acts. The acts consisted of three laws dealing with foreigners and one dealing with inciting rebellion.
“We weren’t in war, but it could have come,” said Cinnamon Brown, an assistant professor of history at Westminster College in Fulton.
Comparing the acts to national security measures, Brown noted the laws:
• Empowered the president to imprison or deport immigrants deemed to be threatening.
• Required foreigners to live in the U.S. for 14 years before becoming citizens.
• Permitted anyone who urged resistance to federal laws or who criticized the government to be fined or imprisoned.
“These are clear violations of First Amendment rights,” she said, noting they were also intended to strike a blow at Adams’ political opponents. “But to Thomas Jefferson and James Madison, the infringement on the First Amendment was just everything that they had predicted a strong central government would do.”
Jefferson considered the Constitution a “compact,” an agreement ratified by sovereign states, explained Brown.
“You and I would call it a contract,” she said. “When the states ratified the Constitution, it meant they were agreeing to give away certain powers as long as the government didn’t abuse it. Well, to them the Alien and Sedition Acts were a clear violation of government power, therefore, the government broke the contract. I break a contract with you, you don’t have to respect your end. It’s null and void,” she said.
Jefferson rode to Kentucky and convinced the Legislature there to approve a resolution that any federal government exercise of powers not specifically delegated to it by the Constitution was unconstitutional, and therefore subject to nullification.
Madison, won a similar resolution in the Virginia legislature. The documents became known as the “Kentucky and Virginia Resolutions” and were passed less than 10 years after the Constitution had been ratified, said Brown.
“They didn’t put their names on it, but we know, through history, they were the people behind it,” said James Taylor, editor in chief of the Adams’ Papers at the Massachusetts Historical Society.
“One was called ‘nullification,’ that is a state could nullify a federal law if they believe it was unconstitutional,” Taylor explained. “The other was called interposition. It’s similar. It’s that the state would interpose itself, put itself, between the federal government and the people in the state, stopping the federal law from going into effect in the state.”
The Kentucky and Virginia Resolutions contributed to the foundation of southern secessionist ideology. Brown called them “a dangerous message that Southerners will find very convenient for their purposes.”
“Well, nothing really came from (the resolutions), at the time, but the seeds, the ideas, were planted,” Taylor said.
And those seeds germinated once again in the 1820s.
Southerners revive nullification
In December 1828, Vice President John C. Calhoun resuscitated southern enthusiasm for nullification with his “South Carolina Exposition and Protest,” also known as “Calhoun’s Exposition” although he didn’t put his name on it.
In it, Calhoun protested the Tariff of 1828, which had a key goal of protecting industries in the northern states. He threatened that if the tariff was not repealed, South Carolina would secede from the union. He also reiterated his support for the idea that the 10th Amendment gave every state the right to nullify any federal act deemed to violate the Constitution.
(Calhoun’s action irritated former president John Quincy Adams, who — in a Fourth of July oration — dismissed the idea of state sovereignty as a “hallucination” and nothing “less than treason.”)
“The north, for the most part, supported tariffs because there was more industry and they wanted their industries protected from British and European goods coming in that were cheaper,” Taylor explained.
Another tariff — deeply resented by southerners, particularly South Carolinians — was passed in 1832, according to Marsha Mullin, chief curator at the Hermitage, President Andrew Jackson’s ancestral home, in Nashville.
As an agricultural economy, South Carolina mainly exported raw goods, primarily cotton to Britain. But as the high U.S. tariffs cut British textile sales to America, British mills bought less cotton and left American planters with too many slaves to support.
“They didn’t have very many industries to protect. So the tariff was a burden on them; it didn’t help them any,” Taylor said.
Although a compromise tariff bill was passed, ultimately South Carolina’s governor called a Nullification Convention in 1832 to prohibit the collection of federal tariffs in the state. When state leaders also raised a military force and appropriated money for weapons, civil war seemed imminent.
South Carolina’s actions shocked the nation and infuriated Jackson.
A month later, Jackson issued the Nullification Proclamation, declaring that all states and cities were forbidden to invalidate federal laws. The move surprised some, because Jackson had been known as a fervent supporter of state sovereignty. However, in this case, he equated nullification with “insurrection and war.”
“… And the other states have a right to put it down,” Jackson declared.
“There’s this really wonderful moment,” Brown said. “Calhoun is (Jackson’s) vice presidential candidate for his first term. And they’re having a birthday celebration for Thomas Jefferson, commemorating it with a dinner at the White House. Jackson gets up and raises his glass and looks directly at Calhoun. He says: ‘To our Union: May She Always Be Preserved.’ It was if he was saying: ‘I might be a states-rights guy, but at the end of the day I’m for the Union.’”
At times, the sparring turned vicious.
A Georgia congressman compared his slaves to northern factories. “Our slaves are our machinery,” he said. “And we have as good a right to profit by them as do the northern men to profit by the machinery they employ.”
The idea galled Quincy Adams, who shouted: “That machinery sometimes exerts a self-moving power!”
Adams’ colleagues shouted him down and accused him of throwing a firebrand in the hall. “It is not I who have thrown the firebrand,” he retorted. “The Nullification Ordinance is the firebrand!”
Eventually, two bills — one that phased the tariffs out over time and another that allowed the federal government to collect the tariffs by force, if necessary — became law. Northerners capitulated by reducing tariffs and the South Carolinians backed away from secession — for a time.
Although the anger over the tariffs subsided, the anger over slavery only grew.
After bitter debates in Congress over which new states would be slave and which would be free, the Compromise of 1850 allowed California to come into nation as a free state in exchange for strengthening the old fugitive slave law.
Even as southerners used talk of nullification and secession to wring concessions from their political foes, northern states passed “personal liberty laws” to counter unpopular fugitive slave laws. In 1842, the Supreme Court ruled that enforcement of the Fugitive Slave Act was a federal function. But some northern states passed laws anyway “nullifying” their responsibility to cooperate in the capture and return of fugitives.
It wasn’t the last time American politicians would invoke nullification as a rationale for opposing the federal government.
The Civil Rights Movement
The issue of states’ rights came to a head yet again in 1957 during Dwight D. Eisenhower’s administration when angry mobs refused to accept the integration of Central High School in Little Rock.
Eisenhower met in private with Arkansas Gov. Orval Faubus. Could a governor defy the order of a federal court?
“In any area where the federal government had assumed jurisdiction and this was upheld by the Supreme Court,” the president reminded Faubus, “there could be only one outcome — that is, the state would lose.”
Ultimately, Eisenhower called upon the 101st U.S. Airborne to suppress the the city and maintain order. (Although the school was privatized the next year for whites-only.)
“He simply could not allow a governor to defy the orders of a federal court,” noted author Jim Newton in his biography of the president. “As Eisenhower well recognized, that would have marked the effective end of federal authority and the acceptance of nullification as a constitutional principal.”
Why hasn’t nullification succeeded?
Although nullification has been attempted periodically through the nation’s history, the federal government typically has prevailed, mainly because Americans came to accept the Supreme Court, not the states, as the final arbiter of what is, and what is not, constitutional, noted Taylor.
That acceptance took time to coalesce.
“Under the Constitution of 1787 — the Constitution we’re still under — a lot of things had to be worked out,” Taylor explained.
Taylor said the first precedent that gave the federal courts the power to void acts of Congress was set in 1803 when Chief Justice John Marshall issued a ruling in the complex Marbury vs. Madison case.
Although the facts of the case are not critically important — they involved a man, William Marbury, who was given a commission to be justice of the peace in Washington, D.C., but who didn’t receive it — the case was notable because it was the first time the judiciary was asked: Does the Supreme Court have the authority to review acts of Congress and determine whether they are constitutional and therefore void?
Marshall determined it did.
“If the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply,” he wrote.
“A precedent really doesn’t work until it’s been enforced for a while,” Taylor said.
Missouri’s nullification efforts
Throughout American history, nullification has been used by state lawmakers to try to undermine and overturn national policies they don’t support.
In Missouri, Rep. Doug Funderburk, R-St. Peters, is the author of the “Second Amendment Preservation Act,” which is being considered by legislators this session.
Stripped to its essence, the bill declares that “all federal acts … which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment … shall be invalid in this state … shall be considered null and void and of no effect in this state.”
Among its many provisions, the bill attempts to limit or invalidate: taxes on guns, the registration and tracking of firearms or their owners; and the confiscation of firearms or ammunition from law-abiding citizens.
He argues the protections only apply to law-abiding citizens, not criminals. However, critics and other observers believe the bill, if passed, would make it harder for peace officers to maintain order and prevent crimes from happening.
Last week the Missouri Senate passed the legislation and sent it back to the House. The House can either accept the Senate’s changes or negotiate a compromise version.
Funderburk noted that, historically, nullification has been invoked for purposes both good and bad. He conceded the theory may have helped instigate “the onslaught of the Civil War.”
Despite the fact that slaveholders and racists have invoked nullification to achieve their aims, Funderburk said the concept also has been applied more positively.
“The two earliest uses of the nullification process was to override the Alien and Sedition Act, where you could literally say it was used to protect First Amendment rights and the freedom of speech,” he said. “And it was used to nullify the Fugitive Slave Act, where we had (free) states saying, ‘You cannot pass a federal law that requires me to return a person to a slave-holding state.’”
Funderburk suggested, elsewhere around the nation, supporters of more liberalized marijuana policies are using nullification to oppose the federal government’s war on drugs.
“There’s just this ongoing, huge debate about what are state rights. What specifically are the clear lines of separation between what is the authority of the state and what is the authority of the federal government?” Funderburk said. “And, honestly, I think that argument is just as alive today as it was over 200 years ago. And it’s literally the same debate.”
Funderburk adheres to a philosophy that says if a power — say, defending the country or negotiating with foreign leaders — has not been specifically enumerated to the U.S. government by the Constitution, it must remain the state’s responsibility.
“People back then had as little trust in federal government as they do today,” he said. “I think these arguments and legislation like this keeps that balance out there so we never have total autonomous authority in one body.”
Although arguments over states’ rights have led to war before, Funderburk doesn’t believe his stance in the Missouri General Assembly will lead that direction.
“I see nothing in this bill that would drive us to a level of insurrection or push for secession,” he said. “In fact, I look at this as no different than what some of the other states are doing with the controlled substance laws.
“This is just going to be Missouri’s choice.”
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