TribBlog: Nullification Now

For the disgruntled ultraconservative, nullification may be the new secession. But as one prominent legal scholar puts it, “If you believe in nullification, you don’t believe in the constitution.”

For the disgruntled ultraconservative, nullification may be the new secession.

Tomorrow, grassroots group New Revolution Now will host a rally at the Capitol to urge Gov. Rick Perry and the Texas Legislature to awaken a dormant legal theory known as “nullification” to invalidate federal health care legislation. Nullification argues that because the states originally entered the Union as sovereign entities on the terms of a compact, they have the power to nullify any law passed by the federal government they don’t like.

There’s one hurdle that’s caused that argument to stumble over the years: it’s unconstitutional. Simply put, Article VI of the Constitution declares federal law the supreme law of the land, and nullification says it’s not, according to Supreme Court historian and University of Texas law professor Lucas Powe.

“Nullification is something advocated by two groups of people — nutcases, which is much more typical — and people who are losing at the federal level and resent the fact that they are losing,” Powe said, adding, “If you believe in nullification, you don’t believe in the constitution.”

The Kentucky and Virginia resolutions, which Thomas Jefferson and James Madison drafted in reaction to 1798’s Alien and Sedition Act, originally advanced the compact theory of statehood. Their eminent authors give them rhetorical gravitas, but not much else — the Resolutions were never binding under law and were passed only by their respective state legislatures.

Since then, nullification has continued to attract the disaffected (including one newly prominent Texas Senate candidate). South Carolina instigated a national crisis in 1832 when it passed the “Nullification Ordinance” voiding two federal tariffs within state territory. Effecting a tenuous compromise (but quashing any question nullification was within a state’s rights), Congress passed bills authorizing the use force to enforce tariffs and lessening tariff rates in the same month. Shortly after, South Carolina repealed the ordinance. Secessionists also leaned heavily on Madison’s and Jefferson’s reasoning leading up to the Civil War, the aftermath of which has settled the question of whether states maintained their sovereignty after entering the Union (The one-third of Texans who believe otherwise should direct themselves to the Supreme Court’s opinion in Texas v. White). More recently, nullification emerged as an argument in the South against the desegregation of public schools.

Proponents of nullification sometimes invoke 10th amendment rights to buttress their argument. But the 10th amendment, which says states retain any powers that the Constitution does not prohibit or grant the federal government, is another dead end, Powe said.

“If the federal law is constitutional, it’s within congressional power. The 10th amendment says states retain what isn’t given. And if it’s given, then it’s over,” he said.That is, if Congress passes a law—say, healthcare legislation—under a constitutionally granted power, Article VI renders the 10th amendment argument against that law beside the point.

Like secession, the civil war has derailed whatever traction nullification may have had as a respected legal theory. But as a strategy for riling far right-wingers? Definitely not.

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