Is Nullification a Waste of Time?

by Jacob Huebert on July 9, 2010
in History, Law, U.S. Constitution

At the Volokh Conspiracy blog, Randy Barnett says libertarian political activists shouldn’t waste their efforts on nullification, as Tom Woods urges in his new book, because it’s a “sketchy” theory.

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

  • http://www.randybarnett.com Randy Barnett

    Jacob, you neglect the quote from Madison in my post and overlooked the crucial last sentence of the final paragraph about scarce energies: “and that rest on dubious claims about original meaning.” If I though Woods was right about the Constitution, my remarks would have an entirely different tenor. In the YouTube clip, I also voice support for a constitutional amendment giving 2/3 of the states the power to repeal any federal law (not merely nullify unconstitutional ones). Scarce energies by activists are better devoted to this sort of political effort than futile ones. The efficacy of court challenges is debatable, but I would never advocate reliance on the judiciary as our exclusive protection of liberty. The first line of Restoring the Lost Constitution is “Had judges done their job, this book would not need to be written.”

    Best,

    Randy

  • http://twitter.com/NSKinsella NSKinsella

    The proposed amendment is not enough. 2/3 of the states should not have to agree. Any state should be free to refuse to enforce unconstitutional laws–or, in my view, any federal law it doesn't like, even a constitutional one. If the Feds or the other states don't like it that, say, California refuses to enforce federal drug law (or to permit federal agents to enforce it), or even to enforce “constitutional” federal laws, they are free to boot California out of the union.

    The Constitution and the federal judicial appeal process is not the end-all be-all, or the only way to challenge the leviathan's evil laws. A political argument need not be merely a legal one. The Fourteenth Amendment was illegally ratified but now is de facto part of the Constitution. The Constitution itself arose out of an illegal Constitutional Convention. The nation's size owes to the illegal Louisiana Purchase. Sometimes political reality becomes legal reality. And so here. Why can't nullification be used to appeal to people's moral and political sensibilities? If you persuade people the states should have the right to nullify–they will.

    In fact the states and state officers are duty bound to uphold the Constitution, are they not? They are bound to nullify–refuse to enforce–federal laws they view are unconstitutional. The argument against this is the argument that the Supreme Court is the final word and final interpreter. Where is THAT specified in the Constitution? Professor Barnett asked where nullification is specified as a power in the Constitution. Where is federal judicial supremacy specified? In fact the very idea that the supreme court can strike down–NULLIFY–unconstitutional federal laws rests on the notion that it is an equal and independent branch of the federal governemnt, and it has an obligation, just like the executive and legislative branches, not to violate the Constitution. The very idea of judicial review rests on the tripartite nature of the federal government, rests on recognizing an independent judicial obligation not to violate the Constitution. But this does not imply judicial *supremacy*. It implies that the three branches of the federal government have independent obligation to refuse to enact or enforce or condone a federal law or policy or action that they believe to be unconstitutional.

    But the states similarly have an obligation to abide by the Constitution–and they are not beholden to the federal government's, or the Supreme Court's, interpretation, since judicial (or even federal!) supremacy is not specified in the Constitution.

  • jhhuebert

    Professor Barnett, although I think Tom Woods presents strong evidence, I'm not sure who's right about original meaning or whether there can be certain answers to such questions. I'm concerned with what will advance liberty, and it appears to me that nullification has done it in the past, is doing it to a limited extent now, and may do it more in the future.

    I wish we had a Supreme Court full of Thomas clones, and I think if the Court embraced your view of the Privileges or Immunities Clause, we would be better off. But that seems very unlikely to me, as does passage of your proposed amendment. So I'm not sure why we should pursue those to the exclusion of nullification, given that there's at least some evidence that nullification can work. Why not pursue all of these?

  • Zramjg

    I am no legal scholar but I have a question. Why would the power to nullify have to be spelled out in the constitution? If as I believe, the states retained sovereignty why would they have to spell this out. That would be asking the superior to justify itself before the inferior. The federal constitution delegated powers to the general government, not the other way around. This is the problem I have with Randy Barnett's line of argumentation agasint nullification. Sovereigns need no justification before their agent. This is the problem I have with libertarian centralist as Kinsella has aptly described persons like Mr Barnett and the Cato Institute. They have turned the federal government into the overseers of the states supposedly in the name of liberty. It is also why I agree wholeheartedly with Mr Kinsella that the states should not have to give 2/3 or 3/4 or whatever percentage of consent to nullify. With all the due respect I am surprised that Dr. Woods has fallen for this canard. Doing so gives unjustified credence that the if its not wriiten out in the constitution its not legal. Once again the constitution is a grant of specific powers to the federal government. The federal govenemt is the one that must bow its knee before the states and justify itself.

  • Phil Magness

    Professor Barnett – While the Madison statement is certainly worth noting for historical purposes, I would answer that it is not as authoritative a voice on the subject as you would have it. Ever a practitioner of political caution and pragmatism, Madison took an uncharacteristically bold stance when he echoed Jefferson's much more strongly worded Kentucky resolution in 1798. The Virginia resolution brought him into direct alliance with the Jeffersonian purists, later to become the Tertium Quids and a recurring thorn in his side as his own presidential ambitions rose (Taylor of Caroline sponsored the actual resolution in the Virginia legislature). The problem comes in the realization that from the moment of the 1798 resolutions forward, Madison spent a career backtracking away from his role in the stance against the Alien and Sedition Acts (which I also think we can all agree were constitutionally noxious, whether we recognize the validity of their nullification or not).

    An illustrative example may be found later in his life when Madison became a voice against the South Carolina nullifiers in 1828 and 1832. What the historians generally neglect is that Madison's very public spat with Calhoun came immediately on the heel of a private divergence on the same subject with a dying Thomas Jefferson in late 1825. When John Quincy Adams announced his commercial subsidy package and support for the 1824 tariff, Jefferson attempted to resurrect the nullification concept in language that directly mirrored the 1798 resolutions if not stronger, right down to deeming the Adams package as “null and void” in the commonwealth for any matter of state precedent. Madison (who had actually swung full circle in his politics and supported the Adams commercial bills) convinced Jefferson to hold off from introducing the resolution until the votes played out in Congress, as the Adams package was still very much in the bill stage. Jefferson acquiesced and died before Congress acted, though not before he also fired off two letters to other confidants expressing his desire that Virginia should stand against the Adams bill. One went to William Branch Giles, a longtime friend who was soon to be elected governor of Virginia. Acting on Jefferson's wishes, Giles succeeded in passing two declarations through the Virginia legislature in 1826 and 1827 declaring the now-passed Adams commercial bill and protective tariffs unconstitutional.

    Madison had a public fit over the whole thing in the Richmond newspapers and insisted his deceased friend Jefferson had been misrepresented, as had the 1798 resolutions. Then Giles released a copy of Jefferson's final letter to him, which urged not only taking a stance against the law but also contained a not-so-subtle expression of disunionism: Virginia should “separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation.” Jefferson also used nearly identical terms in another letter to William Gordon, the state representative who was instructed to introduce the measure.

    The issue of whether nullification obtains sanction from the founding fathers is thus not a question of Madison's authority, but of two divergent and conflicting visions between Madison and Jefferson. Madison briefly flirted with nullification in 1798 then backpeddled for the rest of his life. Though Jefferson certainly did not live up to his decentralist constitutional ideals at all points in his career, on nullification matters the Jefferson of 1825 was still in line with the Jefferson of 1798.

  • http://www.brendantrainor.com Libertreee

    I would like an explanation of the last sentence regarding …(or even federal ) supremacy is not specified in the Constitution, vis a vis the Supremacy Clause

  • Phil Magness

    It is also instructive to look at the Virginia legislature's response to the Marshall court's centralizing cases of McCulloch v. Maryland, Martin v. Hunter's Lessee, and Cohens v. Virginia. The commonwealth, with Jefferson's nod of approval, came down adamantly against the Supreme Court on the grounds that it was intruding upon state matters and interfering in court cases of state jurisdiction. On multiple occasions Virginia came very close to completely disavowing and shirking the Marshall court's decisions.

    Marshall, for what it's worth, is another textbook case of backtracking and inconsistency. He made his entire Supreme Court career save for Barron v. Baltimore as a centralizing federalist. Yet way back in 1796, Marshall (with Madison's support) was the original Virginia court attorney for the plaintiff in Hylton v. United States, the lawsuit that unsuccessfully challenged the constitutionality of a seemingly innocuous and straight forward federal excise tax on carriages before the Supreme Court.

    The founders were not a uniform voice on the subject of state and federal relations – sometimes not even with themselves.

  • Henry

    The very concept of our government was that there would be a division of power in order to keep the power of the government as a whole in check. The government was divided into a federal government of three co-equal branches, I would say, each with its own individual responsibility for ensuring a proper interpretation of the Constitution, and then a the state government with differing responsibilities (See Federalist 45).

    The very concept of judicial review did not even take shape until the assertions made by John Marshal in Marbury v Madison. I find it hard to conceive of three supposedly co-equal branches of government when one branch can overrule the other two branches and it takes not only a super majority in the legislature, but also the concurrence of three fourths of the state legislatures to turn back that decision.

    With respect to state nullification of federal laws, the question is about who decides.

    Can the federal judiciary, a branch of the federal government be considered impartial in disputes between the federal government, of which it is a part, and the individual states? Despite their status as an independent branch, it is hard to believe that they would not favor and have favored the federal government in almost all cases, leading to a question about their impartiality. Article III Section 2 of the Constitution states that the Supreme Court shall have original jurisdiction in all cases involving a State, but nowhere in Article III does the Constitution give the judiciary explicit and sole authority to determine the constitutionality of a law. That is only an assertion, made by one Supreme Court justice and one that has been challenged. For example President Andrew Jackson, is said to have stated in the case of one supreme court decision, “They have made their decision, now let them enforce it.” Abraham Lincoln, in his first inaugural address alluded to the limitations on the Supreme Court with respect to the Dred Scott decision. He said that they were entitled to high respect on cases, but that implied that there were limitations to their authority.
    “At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” – Abraham Lincoln, First Inaugural Address

    In the end, I believe that certain decisions are strictly political decisions and must be addressed by the legislatures and by the executives of the respective bodies. If a state feels strongly enough that the federal government has overstepped its bounds, then they should refuse to enforce that law. What is the federal government going to do? Arrest the State officers? If the commitment is there the federal government will back down so long as the state can reasonably argue the issue of constitutionality.

  • Stephan Kinsella

    Libertree: that clause says only that the Constitution is the supreme law of the land–not that the federal government, or its court system, is the final interpreter of it. http://en.wikipedia.org/wiki/Supremacy_Clause

    What I said was: “judicial (or even federal!) supremacy is not specified in the Constitution.”

    This is correct. Judicial supremacy is the idea that the federal Supreme Court's interpretation is final. Nonsense. Initially even the idea of judicial review was controversial; but I do believe judicial review (as part of the idea of concurrent review) is implied by the judiciary's independent status and independent obligation to abide by the Constitution.

    I look at it this way: the federal judiciary, Congress, and executive, each have an independent obligation to abide by the Constitution. So do the States. The federal government is not supreme over the states. In fact, in my view, the best interpretation is that the federal government is not even party to the compact; only the 50 states are. It is like a treaty between 50 international persons that creates a limited-purpose agency, similar to NATO or ANZUS, or in other ways to the Coast Guard or the Post Office or the Department of Commerce. Or the UN. Etc.

    The problem here is the assumption that nullificaiton is only “legitimate” if the Supreme Court would agree. But this is question-begging since the idea of nullification is that it comes into play precisely when entire federal government, including its court, is wrong. Constitutional law experts like the idea of a nice written framework to refer to, a neat potential solution to disputes. This is the legalistic and positivistic way of looking at it. It is the lawyers' way. It is the way the central state likes to frame it. They want to say, oh, you have the right to protest–just file the an appeal. Let the system work! Meanwhile the implicit presumption is their dominance and supremacy. Nonsense. The states should assert nullification as their right, regardless of Supreme Court approval. They should defy the feds. They should state clearly their right of sovereignty over their soil and their reserved, plenary power to protect their citizens from the actions of a rogue pissant limited-powers agency gone wild. If 13 states formed a united dog-catcher's agency, or piracy-stopping agency, they have the right to cut the legs out from under this upstart agency if it starts to go beyond its authorized powers (to act ultra vires). It is the same with the pisher federal government. It has arrogated to itself the supreme, overlord status, even though unlike every other normal sovereign state in the world it does not even have the power to outlaw murder, rape, trespass, or robbery. It is not a state, really, though it has this status now under international law. It is just a limited-powers, special-purpose agency formed by compact of 13 (now 50) sovereign states. It should be roped in as it has acted ultra vires.

  • Stephan Kinsella

    Woods had fallen for no canard. A constitutional amendment as Barnett endorses would be good and a step in the right direction–just as a 5% reduction in tax is good even though 100% is the desideratum.

  • Zramjg

    I couldn't strongly disgree with you. First I dont understand your analogy to taxation. The analogy is way too imperfect to make your point if I understand it correctly. “…a step in the right direction”? Soveriegnty either exists indivsiby or not. With all those amendments, there is more than one actually, why not go ahead and restore the Articles of Confederation?
    The huge problem you have then is, will you then need to have an amendment to secede if you need one to nullify? If not, why not? Whatever answer you give to the “why not”, if you do, is mine to the reason why we need none to nullify.

    Im also curious on a philosphical level why this need to legitimate the constituional amendment process as an anarcho libertarian. The link to Diloenzo's “Constituional Futility” says it all. By all means go ahead with the amendment process and best of luck on getting the national governemt to acquiesce to these elegant and simple parchments and to recognize state sovereignty one step at a time. Its worked dandy so far.

    Canard? Absolutley.

  • http://www.libertarianpapers.org Stephan Kinsella

    “The very concept of judicial review did not even take shape until the assertions made by John Marshal in Marbury v Madison. I find it hard to conceive of three supposedly co-equal branches of government when one branch can overrule the other two branches and it takes not only a super majority in the legislature, but also the concurrence of three fourths of the state legislatures to turn back that decision.”

    I agree in part–that judicial review was not even certain at first. Yet I do believe this is implied in the equal and independent status of the judicial branch, coupled with its obligation to abide by the Constitution. If you are on the Court, you have a moral and constitutional duty NOT to go along with some unconstitutional law. Same if you are President or a Congresscritter. Or–a State official.

    “In the end, I believe that certain decisions are strictly political decisions and must be addressed by the legislatures and by the executives of the respective bodies.”

    Or by judges too. They all are obligated to not participate in unconstitutional acts.

    “If a state feels strongly enough that the federal government has overstepped its bounds, then they should refuse to enforce that law.”

    More: they shoudl actively block the federal agents from enforcing the law on the State's territory.

    “What is the federal government going to do? Arrest the State officers?”

    Of course it would. Unless the state manages to stand up to it somehow.

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