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.