Nullification is dangerous, unlawful, and unconstitutional

Last night at Liberty on the Rocks, I engaged in some discussion with people who took issue with my recent blog post Beavers introduces nutty nullification gun bill. They argued that  nullification is a valid State response to Federal overreach. I have argued my view on nullification previous on the pages of this blog. I am going to repeat myself by reposting a blog post from March 4, 2013.  If you would like to argue the minutia of the issue, please see the links to National Review, Heritage, Weekly Standard, and Cato. I am sure you will find a rebuttal to your assertion. Rod

Conservatives know nullification is dangerous, unlawful, and unconstitutional

With the controversy that is brewing over SB250, the bill sponsored by Mae Beavers that would nullify any new federal gun laws in Tennessee and would require local law enforcement officers to arrest federal agents carrying out federal law, Republicans are split on the issue.  Those who favor nullification are claiming to be the real conservatives and are demonizing as statist those who support the supremacy clause of the Constitution and think that nullification is foolish, dangerous, and unconstitutional.

The pro-nullification forces are very vitriolic in their denunciation of those with whom they disagree.  Many tea party types are claiming that the conservative position is to support nullification.  If you disagree with them, well maybe you got your understanding of the constitution from liberal academics. 

Rosine Ghawji, the co-chair of  a group called Memphis Tea Party, posted a letter he wrote to Sen. Brian Kelsey on the Federation of Republican Women facebook page. Sen. Kelsey is the chairman of the Judiciary Committee and led the fight to defeat SB250.  Ghawji accuses Senator Kelsey of having been brainwashed and says he "doesn’t understand the most basic constitutional construction." He goes on to say, "Brian Kelsey is a perfect example of one whom vows an oath the the US Constitution - BUT CLEARLY doesn't know what is in it - or doesn't care."

The Tenth Amendment Center has posted a picture that features President Obama with a caption that ask, "Was this guy Tennessee Senator Brian Kelsey's law professor?" We conservative activist are being bombarded by self-taught constitutional experts who tell us to ignore the history of failed attempts by states to nullify federal law, to ignore the outcome of the civil war, and to ignore 250 years of constitutional case law. 

If like me you believe the supremacy clause really means something and that nullification is unconstitutional and dangerous but feel like the whole conservative movement is heading in the other direction, take heart. The most vocal conservative activist may be on a bandwagon that is endorsing nullification, but you are not alone. 

The Heritage Foundation is a prestigious well-respected research and educational institution that has been around since 1979.  There mission is "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense.:"  It is difficult for anyone to claim they are part of the liberal establishment. A little over a year ago, they published a short essay on their web site explaining why nullification is unlawful and unconstitutional.  "There is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally," they say. Many advocates of nullification claim that Madison and Jefferson supported the theory of nullification. Heritage says that is not so and explains the historical record to prove it. 

National Review  in an article Nullification Temptation said , "Nullification is a dangerous weapon to brandish. Its danger lies in how easily it could destroy not just Obamacare, but the entire Constitution." NR also argues against nullification in an article called Federal Nullification Is a Bad Idea. National Reveiw is the conservative journal founded by William F. Buckley in the 1950's.  They have been the leading source of conservative thought since their founding.  No one could underestimate NR's contribution to the Conservative movement. Also, the Weekly Standard has taken a position against nullification. 

Another prominent think tank often described as libertarian or libertarian-leaning is the Cato Institute.  In an article exploring the constitutionality of Obamacare a Cato Institute journalist wrote, "Under the 10th Amendment, if Congress enacts a law pursuant to one of the 'powers … delegated to the United States by the Constitution,' then that law is supreme, and nothing a state can do changes this. Any state power to 'nullify' unconstitutional federal laws has long been rejected."

There are plenty of sensible respected conservative voices speaking out against nullification. Just because the proponents may yell the loudest it does not make them right.  Do not question your conservative bona fides because you are not swept away by the passion of the moment. With National Review, The Weekly Standard, The Heritage Foundation and Cato on my side, I feel pretty confident of my position. Clearly nullification is unlawful, unconstitutional and dangerous. Below is a link to the Heritage article mentioned above.

Nullification: Unlawful and Unconstitutional

Feb 8, 2012 – Despite good intentions, some have been tempted to embrace nullification: the claim that an individual state legislature has the authority to veto ...

Top Stories