The Nullification Debate

The most important point regarding nullification that has people decrying nullification as blatantly unconstitutional is complete confusion over the nature of the Constitution. The Constitution was enacted to bind the federal government, not the state governments. It gave the federal government limited, enumerated powers, with the rest reserved to the states. It seems sophomoric but this is the most basic assumption underlying the layman’s thoughts on nullification. They seem to think that for a state to have this power it must be listed somewhere in the Constitution; but as the Constitution was made to limit federal powers through enumeration, it is unsurprising that it would not be found in the document. Federalist 45 said, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” So clearly, nullification not being listed somewhere in the document is not a deal breaker. A complementary point to be made here is that there is a fundamental difference between the federal government ‘finding’ new powers that were not expressly delegated to them in the Constitution and the state governments using powers that were reserved to them, although not expressly delegated.

Moving back to the nature of the federal government, it must be said that the thirteen sovereign states united in compact for the purpose of mutual benefit. If they didn’t believe that it would be mutually beneficial to them, they certainly would not have signed the Constitution. The Constitution enacted a federal government, that would act as an agent on behalf of the states, it would have specific powers delegated to it which they felt would mutually benefit them. It is plain to see that as an agent of the states with specific powers, if the federal government were to overstep its bounds, a state would be free to ‘call it out’, and not abide by its enactments that were outside its given authority. Indeed, three states (New York, Virginia and Rhode Island) even signed the constitution with the express condition that should the federal government make enactments that exceeded its delegated authority, they reserved the right to withdraw from the compact. Essentially, the failure to realize this point is what causes much of the confusion on the Supremacy clause. The Supremacy clause states that the Constitution, and the laws made in pursuance thereof shall be the supreme law of the land. In light of the above, a law that was not in pursuance of the Constitution cannot be binding, as laws made outside the boundaries of the constitution were not agreed on by the compacting states for their mutual benefit.

Some misguided views regarding nullification:

-Many think that the Supremacy clause explicitly outlaws nullification, but as we’ve seen from the discussion above, only laws in pursuance to the Constitution are Supreme.
-Many think that there is only one ‘proper’ way to address when the federal government oversteps its bounds: taking it to the supreme court. The problem with this is that nowhere does the Constitution list the Supreme Court as a sole arbiter to the Constitutionality of federal laws, nor can the Supreme Court be considered impartial, as it is an arm of the federal government. These individuals often state that nullification has been ‘proven’ invalid, by the Supreme Court, assuming the court to be infallible and beyond reproach.
-Many believe that since nullification has never yet been successful, although tried many times, its foolish to even bring it up, and is a relic of a bygone day. Often, they will additionally say the issue was settled by the Civil War, despite that the Civil War was not fought over nullification to begin with. They often will associate nullification with the Civil War and its death toll to pretend like nullification today would somehow mean 600,000 deaths, and is inherently violent. In their view, nullification and secession cannot be peaceful based on their grossly distorted view of the Civil War. Following this, many will either implicitly or explicitly deem nullification as racist, pretending again that the Civil War was fought over nullification and that nullification’s role in the Civil Rights era is inherently evil. Clearly as we’ve seen, the basis of nullification has nothing to do with racism. Furthermore, this is a grossly uneven treatment of nullification, since it conveniently leaves out Wisconsin’s attempt to nullify the Fugitive Slave Act, which we could say is just about the opposite of racist. Besides, just because something could be potentially used for “evil”, does not make it inherently evil and never to be spoke of again. The First amendment is a perfect example. Would we say that the First Amendment’s free speech clause is bad and should be rescinded just because it can be used for both good and bad? Certainly not.
– Some even go as far as saying that nullification is seditious or treasonous. Essentially, they’re saying that all who disagree with their approved opinions deserve to be punished. These are probably the same people who are in love with the Patriot act, NDAA, etc. The Federal government is never wrong, in their view

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