A legacy of nullification
By Daniel Ponder | Posted: Wednesday, July 28, 2010
Our Constitution calls for the federal government to tackle national issues like health care, but politicians are trying to get around this mandate by using a doctrine known as nullification, which is as old as the Republic, but poses real dangers to our form of government.
Nullification was a theory advanced by Thomas Jefferson and James Madison that says states can choose within their borders to reject actions of the federal government if the actions are deemed unconstitutional. But they used this theory in very specific and narrow circumstance when they urged Kentucky and Virginia to nullify the Alien and Sedition Acts.
Since then, nullification has been a failed theory throughout our history. But it is being resurrected increasingly today, and when Missourians vote Tuesday on Proposition C, the measure to opt out of national health care reform, the vote will be the latest example of the politics of misplaced nullification.
Let's be clear about the intention of our Founding Fathers — they believed that individual states absolutely have no right to decide which nationally made laws they would abide by and which they would not, unless the law was plainly unconstitutional. An example of an unconstitutional law might be if the government tried to establish an official religion. Health care clearly does not fall into this category.
One could question what the framers of our Constitution intended states' powers to be. The Constitution is relatively silent on "intent" because so much of it was hashed out in a series of compromises. Pointing to what some framers intended surely is not enough. For example, the Bush administration's insistence that it had the power to expand executive power was compatible with Alexander Hamilton's thinking, but Hamilton's view was explicitly rejected by the other framers.
Nullification's biggest test led to the Civil War. It was thought to have ended then, but it has come up occasionally, most notably with respect to the issue of race. I believe its current popularity could weaken our Constitution, which provides preferable avenues to question the federal government's legislative actions.
President Andrew Jackson argued rightly that if a law is wrong for one state, it should be presumed to be wrong for all states, and the only way to determine such questions is in the judicial courts and the court of public opinion. Why aren't we following these paths? Simple answer — politics.
The would-be nullifiers in Missouri point to the 10th Amendment, which reserves to the states those powers not explicitly granted to the federal government. But the Constitution often conflicts with itself, tilting toward states rights in the 10th Amendment, then leaning heavily toward the national government via a number of sweeping clauses. And whether health care reform is a good idea, it is a federal issue based on legal readings of numerous court decisions that find in favor of the national government over states rights.
Much of the history of nullification rests on the idea that the Supreme Court is not necessarily the final arbiter of the constitutionality of the laws. Indeed, the framers supported the idea that the court would invalidate state laws that encroached on federal jurisdiction. It is not clear they thought that the court should have the power of judicial review over federal laws passed by the co-equal branches of Congress and the president. Regardless, nullification essentially would return the country to the state it was under the Articles of Confederation, which didn't exactly work out.
Why not use existing processes explicitly contained in our Constitution? If health care reform is so unpalatable that it should be overturned, a constitutional amendment would do the trick. So would the people's voice via the ballot box.
Missourians should recognize that the nation cannot endure with a two-tiered system in something as fundamental as the health of its people. Either all states should abide by health care reform or none of them should. If the majority supports the latter, there are other, far better means available to reaching that conclusion. Andrew Jackson was wrong about a lot of things, particularly slavery and Indian removal. But he was right about the dangers of nullification.
Daniel Ponder is associate professor of political science at Drury University in Springfield, Mo., and author of "Good Advice: Information and Policy Making in the White House."
