Well, it’s been a while since I’ve had the opportunity to take apart a mainstream news report on nullification. You probably won’t be surprised when I tell you that after all of these years, reporters are still stupid on the issue.
In truth, we haven’t really seen a lot of discussion about historical nullification in the mainstream over the last couple of years. That’s mainly because states have nullified federal actions in effect by simply refusing to cooperate with the enforcement of federal laws and the implementation of federal programs. The anti-commandeering doctrine makes nullification through non-cooperation uncontroversial – at least in a legal sense. The strategy is SCOTUS-approved.
But CNN reporter Andrew Kaczynski brought historical nullification back into the spotlight by digging up statements acting Attorney General Matthew Whitaker made in support of the principle back in 2013. Whitaker was talking about state governments having the courage to nullify ObamaCare, noting that the states created the federal government, not the other way around.
“But do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that.”
Of course, he’s absolutely right. James Madison and Thomas Jefferson first formally articulated the principles of nullification in the Kentucky Resolutions and Virginia Resolutions of 1798. But the idea goes back to the ratification debates. During the Virginia ratifying convention, George Nicholas told the delegates that if the federal government ever exceeded its authority, Virginia would be “exonerated” from it.
“If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.”
But according to the obligatory “legal scholar” trotted out by CNN, nullification is “irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause of Article VI—which not only makes federal law supreme, but expressly binds state courts to apply it.”
And there it is! The supremacy clause.
In any mainstream article about historical nullification, you can expect a “legal scholar” to make an appearance. And you can also expect said “legal scholar” to trot out a bastardized explanation of the supremacy clause. They always leave out the key words in the clause, ignoring the fact that only laws made “in pursuance” of the Constitution stand as supreme. All other federal actions are, as Alexander Hamilton put it, “void.”
Our intrepid CNN reporter also took issue with comments Whitaker made back in the day, calling federal courts “the inferior branch” of the government. Every good American knows this is absurd, right? Well apparently, Alexander Hamilton didn’t get the memo. He said pretty much the same thing in Federalist #78.
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
But didn’t Marbury v. Madison make the Supreme Court supreme in determining constitutionality? Well, that’s the conventional wisdom. And in effect, the legal world functions that way today. (Even though it’s a misreading of what John Marshall wrote in his opinion.) But doesn’t it seem a little weird that the Supreme Court got to declared itself supreme? I mean, if I declare myself emperor, does that make me emperor? Is it really so odd that somebody might question this notion?
Of course, anybody who brings up nullification is racccccccciiiiiiiissssssssttttt! And Kaczynski eventually gets around to making that inference. You find all the typical talking points. John C. Calhoun shows up. And of course, “The issue of nullification gained traction with states’ resistance to the federal government during the Civil Rights movement.” As usual, CNN completely ignores the most successful historical nullification effort – the decidedly non-racist nullification of federal fugitive slave laws in the years leading up to the Civil War.
Kaczynski also exercises a bit of journalistic malfeasance. It cites the Tenth Amendment Center. I’m still waiting for the reporter to contact me. That’s journalism 101. If you’re going to cite an organization – talk to somebody there. If the reporter had talked to me, he might have done better than to only mention “non-binding resolutions asserting their sovereignty under the Tenth Amendment” in 2010. I could have told him about all the laws states have passed pushing back against overreaching federal power on a wide range of issues over the last several years. I could have also explained how the nullification isn’t a “right wing” movement. Many of the most currently successful nullification actions involve traditionally left-wing issues, including immigration and marijuana.
We used to see mainstream articles like this all the time. I used to spend a lot of time refuting silly “legal scholars” and ignorant reporters. No, the truth is it doesn’t really matter. Legal scholars and reporters can say what they will. The fact is we are nullifying already and all of their hyperbole and histrionics won’t change that.