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The Nullification Game

by Michael Austin, published


“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”– Article VI, Clause 2 of the Constitution of the United States of America "I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed."—Andrew Jackson, “Proclamation to the People of South Carolina,” November 1832

Nobody quite wanted the federal supremacy clause that ended up in the Constitution. James Madison supported a much stronger provision granting the national congress a veto over any state legislation that it deemed inappropriate. He proposed such a veto four times during the Federal Convention but was never able to secure its passage. Finally, to appease Madison and his allies, Maryland delegate Luther Martin proposed the language that became Article VI, Clause 2, the “Supremacy Clause,” and the convention adopted it without comment.

But, as he later admitted, Martin was playing a trick. The version of the Supremacy Clause that he proposed dictated that federal law would be superior to state law, but he deftly left constitutions out of the picture, paving the way for an eventual declaration that state constitutions trumped federal law.  The trick didn't work. The Committee of Detail caught it and added state constitutions to the mix of things that federal law would be superior to, and Martin left the convention to become one of the leaders in the fight against ratification. But both the Constitution, and the Supremacy Clause, survived.

The supremacy of federal law is a Constitutional fact, but it has never been a popular one, and it did not take long before the states started to pretend that the Supremacy Clause did not exist. The term “nullification” dates back to the Kentucky Resolution, which Vice President Thomas Jefferson secretly wrote in protest of the Alien and Sedition Acts. Pennsylvania, Massachusetts, and Georgia all tried to nullify federal laws in the early 1800s, and, in 1832, South Carolina’s “Ordinance of Nullification,” which proposed to nullify a federal tariff within its borders, came  perilously close to starting a civil war. In the 20th century, the doctrine of nullification is most closely associated with the refusal of of Southern States to acknowledge federal legal and judicial desegregation rulings.

But no state-level nullification of federal law has ever been allowed to stand. Andrew Jackson threatened to send the troops in 1832, Eisenhower nationalized the Arkansas militia in 1954, and Lincoln—there was that whole Civil War thing. Though nullification has never been far from the political stage, the Constitution, and laws passed under its authority, remain the supreme law of the land. And, perhaps more importantly, the federal courts remain empowered by the Constitution to determine what is, and what is not, constitutionally permissible. State legislatures do not get to make this call.

In the last few weeks, however, my home state of Kansas, and our neighbors in Missouri have ushered nullification back on to center stage. The legislatures of both states have passed “bills” indicating that no future federal gun control legislation can be enforced in the state. I use scare quotes around “bills” because, unlike previous nullification attempts, these legislative mandates do not really do anything. They do not attempt to nullify any federal law that actually exists or to declare any  Supreme Court ruling unenforceable. They deal only with possible future actions of the federal government—future actions that have been carefully limited to things that have no possibility of ever happening.

Which is another way of saying that nothing much has happened in Kansas and Missouri. There will be no federal troops dispatched to Kansas City. Governor Brownback is not going to stand on the steps of the capital waving a shotgun and daring federal agents to pass. Nobody is going to secede from the union. Most constitutional experts agree that the laws would not survive a court challenge, but, since they were not designed to ever be enforced, the laws will probably never be challenged in federal courts. The Union, the Constitution, and the Supremacy Clause are perfectly safe for now.

Nullification has always been political theater, but in the past it has at least been good theater--serious drama with high stakes and tragic characters who kept the country on the edge of its seat. This time it is simply political farce.

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