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Refuting Nullification, Part Two

Originally posted at Talk to Action.

In this series we have been discussing the emerging influence of Thomas J. Woods and other Catholic Right neo-Confederates, who are advocating that states nullify federal statutes and court rulings with which they disagree. Some are calling for outright secession.  The next installment explained why nullification matters and how it can lead to localized tyranny and theocracy. Then we discussed the historical argument against nullification and by extension, secession.

Now we are taking the obvious next step:  The Constitutional arguments against nullification.

At the forefront of the Catholic Right’s nullification/secessionist movement is Thomas J. Woods.  His writings and speeches are frequently cited by a budding alliance of Catholic social conservatives and secessionists that extends to the likes of Opus Dei evangelist C. John McCloskey and politico Alan Keyes.  They claim that their ideas are constitutionally viable — but they are not, and here is why.

Woods justifies nullification via “the compact theory” of government – that the United States of America government was formed by a compact agreed upon by all the states, whereby making the federal government a creation of the states. In Woods’ view this give individual states the power to “nullify” laws or federal court rulings they see as unconstitutional.

But as we explored in the very last post, it is a theory with little or no basis in historical fact. If states did indeed precede the federal government, then what of states such as Alaska, California, Hawaii and Louisiana that were carved out of federal procurements of war seizure or purchase by treaty?  Both of these powers are specifically reserved to the federal government in the Constitution. Beyond that, it is a theory that ignores our nation’s founding as a people.

The Foundational Argument

Inspired by Daniel Webster, Abraham Lincoln understood the inherent weakness of the compact theory upon which Woods rests his theory. Lincoln also understood that there is no legal justification for either nullification or secession. Consider this passage from his First Inaugural Address:

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it–break it, so to speak–but does it not require all to lawfully rescind it?

Putting aside the fact that even among the original framers there was a divergence of opinion over its intent, Woods and other advocates of nullification punt on the obvious conclusion; that if it were the intent of the Founders to allow for secession of a given state of mechanism, would have been inserted into the constitution. Woods’ weak response is “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.” Directly preceding this comment, he argues, “This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.”

Woods seems to be alluding to the U.S. Supreme Court ruling for Griswold v. Connecticut, the 1965 case that overturned a state law banning the sale of birth control on the grounds that it violated the “right to marital privacy” (It is not surprising that Woods, as a traditionalist Catholic, Woods would derisively hone in on this decision). In his dissent, Justice Hugo Black then found no general “right of privacy.”  Nevertheless, majorities in Griswold  (and later in Roe v. Wade) did find support for the right to privacy in the Fifth, Ninth and Fourteenth Amendments, and this is now a matter of settled law.  However, no one has been able to reasonably infer a right to either nullification or secession in the Constitution.

While Article IV of the Constitution provides for the admission of new states, there is no provision for secession (Lincoln touched upon this in his First Inaugural Address:  “Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.”).

We can say the same about the nullification of federal legislation. Lincoln knew that neither secession nor nullification were not to be confused with the Right of Revolution as stated in the Declaration of Independence (“Whenever any form of government becomes destructive of these ends [life, liberty, and the pursuit of happiness], the people have a right to alter or abolish it, and to institute new government as to them shall seem most likely to affect their safety and happiness”).

More importantly, the concept of any state nullifying any federal law without the proper court challenge was contemplated and rejected by the Framers in Article IV of the Constitution. More broadly in the Constitution’s “Supremacy Clause” is unambiguous. The Constitution and laws made by the Congress are “the supreme law of the land.”  And it doesn’t give or suggest any override authority to the state governors and legislatures:  

“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.”

The Rub

Indeed, the radical ambiguity of Woods and his cohorts about how one determines what is and is not Constitutional — is a recipe for arbitrary and capricious behavior.  We have the Supreme Court to make those calls. And while Article III does not specifically assign that power was, as evidenced by Alexander Hamilton, one clearly intended by its proponents.

Simply put, the Woods’ formulation has the potential for radical breaks with the supreme law of the land, for example on matters of matters of birth control, reproductive rights, and even the establishment of an official state religion. In sum, the denial of some of the most basic rights guaranteed to individuals by the U.S. Constitution opens the door not to a more perfect union, but to a confederation of little theocracies.

Indeed, James Madison, writing in Federalist No. 44 observed regarding the supremacy clause of the Constitution:  “Without the substance of this power, the whole Constitution would be a dead letter.” He then presciently warned:  

“The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.”

That is indeed still the question.

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