I have had these past two weeks much on my mind. If I might be permitted a respite from the usual fare of this blog (gentles, do not reprehend), I would like to share my thoughts on what is, I believe, a most important matter, that which appears to have the countenance of an approaching crisis which I would rather we enter into, if we must, with minds and consciences fully formed. If it must be demanded, it must be understood.
As we are all aware, the healthcare legislation has provoked something of an uproar among its opponents; regardless of the act’s passage, the opposition to it has hardly abated. It surrounds itself with fire and vitriol, and we, the weary bystanders, must still sit and watch the violent circus that continues to play before our eyes. There is a particular tenor to it, though, that rings unfamiliar and strange to those who have not made a hobby of following fringe politics; of course, my own fascination with such movements may give me a sense of a false heightening of rhetoric, being that I, in fact, pursue these stories, this news. But the stories I have found trouble me with that odd and tense excitement bad news can often bring.
The issue under discussion now is the so-called Obamacare health act, which does lots of things, among them obliging people to purchase health insurance under penalty of law, which is the key complaint against it. Seventeen states, if I recall correctly, including my own old home of Virginia, have filed suit against the federal government charging the statute to be in violation of constitutional law. This is a perfectly valid — and I daresay the preferred — manner of bringing this sort of grievance to the government; it proceeds through proper channels, and when a decision is rendered it is abided by.
But other states, most notably Louisiana and apparently Texas, have taken a distinctly different approach. Louisiana governor Jindal has backed a proposal (which according to the New York Times mirrors proposed legislation in over thirty states) which would declare that the state will not enforce the health act within its borders, that it is null and void in Louisiana, and not to be considered law, because it is held to be unconstitutional.
This is nullification, the states’ rights doctrine which maintains that a state, as a constituent member of the compact forming the Union, has the role of Constitutional check on Federal action distinct, and inevitably above, the Supreme Court. It works from the fundamental political concept that authority derives via consent of the governed, and the more uncertain one that the Constitution is a contract between states who together agree to form (and be formed by) a common Union. Thus, the doctrine of nullification holds that a state may, if it determines legislation to be unconstitutional (and thus in violation of the interstate compact which it holds the Constitutional to ultimately be), it may nullify or abrogate that law within its own borders of its own initiative until such a time as the law is either repealed by a subsequent statute or in fact made constitutional via the amendment process.
This is the broad principle; much has been written and debated about this over time, especially considering that the United States already faced the issue of nullification way back during the presidency of John Adams, when Thomas Jefferson and James Madison authored the Virginia and Kentucky resolutions in protest of the Alien and Sedition Acts, of which nothing came as the laws were eventually repealed, but which laid the philosophical groundwork for a much more impressive challenge in the 1830′s, during the Jackson administration. The same principles as articulated above were maintained — that an act deemed unconstitutional could be nullified as law within the boundaries of the nullifying state, in this particular case the tariff of 1828.
The trouble with nullification is twofold: 1) it is a reasonable position that 2) is immensely dangerous. It’s reasonable because, yes, one can view the nature of the Union as deriving its authority from the states and thus subject to the states, the states being the signatory parties to its foundational document. There are, however, to that view dear and dangerous consequences. If the Union is subject to the states, and derives it’s sovereignty from them as legal bodies and not from the collective popular sovereignty of the people, then the Union is meaningless. It is a mere league, and confederation, and not a government
If Louisiana, now, passes this legislation, what it does is singlehandedly challenge the very nature of the United States as a body. If a state has the power to abrogate federal authority at will (and the wildly differing interpretations of constitutionality make the proviso that it will only do so if an act is unconstitutional virtual gibberish), then the federal government has no authority at all, and cannot govern. Let me repeat that: nullification means the government cannot govern. Federal supremacy — itself a constitutional principle and mandate — is essential to the existence of the Union; it ensures that there will be unity of law and administration, that the Union is capable of exercising power over the states, and that that power is not exercised at the point of a gun; it is done by mutual respect for law.
Unfortunately, in any nullification crisis — be it the one Jackson confronted in the early 1830′s or the one that seems to be brewing now — the point of a gun is the only power the Union will be able to muster. The functioning of the United States is incumbent upon all parties agreeing that, absent major constitutional reform, federal law trumps state law, and that the process for challenging that law is the judiciary. This keeps battles in statehouses and courtrooms, and outside of armies.
If this is not the case — if a state is free to follow its whims and deny federal authority wherever it happens to disagree with opinion in its legislature or governor’s mansion, then the Union has fallen. It means the Union isn’t binding. It means federal sovereignty is subject to that of the states, and thus has and can have no real power over them but that power which they agree to cede on a case by case basis; the moment this becomes even a prevailing theory, the next logical step is to contemplate secession.
This has already happened. This is the same pattern it took when the Union seemed to be hurtling towards its doom in the 1830′s, and here it is, again: the logical next step from nullification is secession. The abrogation of federal authority in a state in one instance must lead to its abrogation in all instances. There is no “Union, with limits;” option here. A state can’t determine what laws it does and does not wish to follow. To be a part of the Union is to be subject to its laws and methods, and to allow the sovereignty of the state to be subsumed into the sovereignty of the whole. It’s Union, or No.
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April 24, 2010 at 7:00 pm
Mike Visaggio
Well, while your understanding is logical, you are missing the truth, which is that the States ARE subject to legislation coming out of Congress IF the legislation is in accordance with the powers granted the federal government under the Constitution.
For many years the federal government has been amassing power not granted it by the Constitution, and the states and the people have stood by passively and allowed it. This has given us a federal government that is intrusive and tyrannical in many, many areas, although people have not felt it because it has been done as one of the Founders put it, “by insensible degrees.” (Or as the analogy goes, “boiling the frog.”) People get used to the government getting more and more power over them because it happens just a little at a time and without the knowledge of a vast swath of the public. State governments experience the same loss in states’ rights. It has worked marvelously for the ever-expanding federal government, to the point that the Federalism envisioned by the Founders has all but disappeared.
But in the last 18 months the expansion has exponentially increased, and always in the name of socialism’s favorite ploy, the common good. This is what triggered the rousing of anger by so many to the right of center, because when implemented by force of law, the common good is defined by the people making the law. It sets them up as oligarchs.
Read the Founders. Federal supremacy is NOT a Constitutional principle. Federal PROTECTION is.
Read the Preamble. It delineates the purposes behind the framing of the Constitution and then says that ordaining and establishing it is the method by which those purposes will be fulfilled. This is true notwithstanding Supreme Court rulings. The Justices have been wrong time and time again. They have ruled all too often for political rather than Constitutional reasons. And you will find that the strict constructionists, at least in the modern day, are the non-political Justices. They are simply reading what’s written.
The Federal government, as I said to you on the phone, needs to confine its lawmaking to what it has the power to legislate. The scenario you outline about not being able to govern could come about, not because of state nullification, but because the Congress FIRST passed laws at odds with the Constitution, then took steps to compel enforcement. I suggest two books to you: “The Constitution in Exile” by Andrew Napolitano, and “Liberty and Tyranny” by Mark Levin.
If Congress stops passing laws that intrude so deeply into personal and business/corporate liberty, they will not have to deal with nullification, or heaven help us, secession. Nullification, like other acts of political bodies, is driven by politics. The reason states are on this kick is precisely because their legislatures sense that what the federal government is doing is not wanted by the people at large because the people see it as tyrannical and against the most basic law of the land.
People don’t want to believe that their federal government is becoming tyrannical, but the evidence cannot be concealed in the modern day as it could be in the days before the 24-hour news cycle and the Internet. Bloggers, talk radio and Fox News are putting out there the stuff that these 2000-page behemoth bills contain, people are researching it and finding out that the talkers are not making it up. Another thing feeding nullification movements is that the public now also knows, thanks to those outlets, that their representatives themselves do not know what’s in the bills, and that they had to be bribed to vote for them. Indeed, how CAN they know what’s in them? No “normal” person can digest five pages without reaching for aspirin. In the old days, bills were short, dealing only with the issue at hand with a few amendments. Now they contain pork galore buried in subsections of paragraphs and are rife with political bribery, using the taxpayers’ money to buy votes that otherwise would not be in favor of the bills.
“Federal law trumps state law” is a principle that came began being misused all the way back in 1824.
Note the second phrase of the Supremacy Clause (article VI, Section 2) that the laws of the United States that are made in pursuance of the Constitution (read: that agree with it) are what trumps State laws that are in disagreement with federal laws. In other words, as I stated earlier, Congress will not have to deal with nullification if (1) it stops governing in opposition to the Constitution and (2) it stops governing against the will of the people. Then there will be no need for a case-by-case review by the states.
The Constitutional way for the health-care remedies and everything else proposed by this administration to find their way into law, is, as you suggest, to AMEND THE CONSTITUTION first! That would include the Bush’s Patriot Act too. If we really think we want the federal government to have this kind of all-encompassing power, we must FIRST grant it by way of an amendment. THEN laws can be passed like the current (ahem) solutions.
The People may have elected a certain party to the majority, but that does not give them license to do their own nullification, namely the nullification of the Constitution. And I would say, this is FAR more dangerous than nullification by the States, because rather than make the Union a loosely bound league as you say State nullification would do, THAT type of nullification makes the Union a dictatorship, or at best an oligarchy. And THAT is what would be enforced at gunpoint, ultimately.
So, it’s Union, Yes. Subject to the Constitution. We are NOT talking about opinion in a state legislature or governor’s mansion except insofar as it is plain that such opinion is based on the Constitution alone, and that it reflects how the people of that state so express themselves.
April 24, 2010 at 7:28 pm
Brian Visaggio
I think you’re missing my point, which has not been to say that the nullification principle is wrong, but simply that, even if right, it’s consequences are potentially disastrous, and they by necessity invalidate the concept of the Union. This moves beyond the constitutionality of individual acts, and into the realm of undermining the nature of the American system at the root.
Regardless of your interpretation of the Supremacy clause, the idea that federal law is above state law is the unifying glue of the Union. It subjects the parts to the whole, and thus ensures the whole. The nullification crisis of the 1830′s very nearly resulted in the Union splintering; John Quincy Adams, by then a senior statesmen and a member of the House, felt it likely the Union would collapse in five years from 1832. Coins were being minted in South Carolina proclaiming John C. Calhoun the first President of a Southern Confederacy. Nullification leads inevitably to secession, because it subjects the whole to the part.
If federal law lacks the bare principle of authority — which is what nullification accomplishes, because you cannot assume principled men would only exercise it in a principled manner — then the Union itself by necessity unravels. It’s a short leap from “This law is unconstitutional” to “The unconstitutional government has no authority over my state at all” to “Secession! Fight forever!” I say this because I see it happening, at least in part. The philosophical groundwork is being lain.
Allowing for nullification is asking for the death of the country, the dissolution of the union and the nullification, ultimately, the Constitution in which you have placed so much hope.
Let’s not talk the issue of what the federal government is doing now; I’m discussing the simple reality of what the exercise of nullification can and must accomplish: the complete reversal of what American statesmen have struggled to maintain for two-hundred and thirty-four years, to keep the Union afloat.
As I wrote, nullification ultimately turns Union into Confederation. There is no judgment here as to whether or not that is ultimately a good thing, but I think light needs to be cast on that reality. If it’s what you want, by all means pursue it. If you would rather live in a loose affiliated league with, perhaps, a common currency and perhaps a foreign policy, nullification is for you. It will restructure the United States into something more akin to the EU — a voluntary league where the law of the unifying authority is, ultimately, optional.
But if this isn’t what you want, nullification is by a wide margin exactly the wrong course down which to travel.
June 14, 2010 at 1:42 pm
godescalc
Sir, you have not updated your web-log in over a passing of the moon. Your readers are mildly perturbed by this. Is all well, have you been kidnapped by aliens or overrun by army ants or suchlike?