COLE: Nullification, a favorite of wild-eyed retro radicals (vote in poll)

June 1, 2010

By Daniel Cole

The malicious gods of the leftist press couldn’t have devised a better formula to make conservatives look like unreconstructed racists. With President Barack Obama presiding over an unprecedented expansion of the welfare state, it’s only natural that limited-government types would rise in protest. Yet when they do, there’s always a swarm of race-obsessed commentators standing on the sidelines, observing that the president is black and concluding with staggering perspicacity that these Tea Partiers must be Nazis or Klansmen.

The growing nullification craze can only intensify this perception. For those of you who didn’t live through the first half of the nineteenth century, nullification is the Jeffersonian idea that individual states, as the sovereign creators of the federal compact, can opt out of federal laws which they deem unconstitutional. According to this view, state legislatures or popular state conventions, instead of the Supreme Court, are the final interpreters of the U.S. Constitution.

The most famous moment in nullification history is associated with the antebellum South, a fact which colors the entire conversation with shades of race. In 1832, a popular convention in South Carolina declared two tariffs unconstitutional and therefore null and void within the state’s borders. In response, Congress authorized President Andrew Jackson to use military force against South Carolina. Congress then negotiated a new tariff which better accommodated South Carolina’s interests, and the South Carolina convention reconvened to repeal its original ordinance. The state had won a partial victory, but the idea of nullification had been discredited.

Or almost discredited. On the Tenth Amendment Center blog, bestselling author Tom Woods observes that as late as 1859, anti-slavery forces in Wisconsin were appealing to nullification against the Fugitive Slave Laws of 1850, which required northerners to return runaway slaves to their Southern owners. This history, however, has been largely forgotten. Now it’s well nigh impossible to broach the topic of nullification without being accused of sympathizing with the pre-war South.

But that hasn’t stopped a few rightwing politicians from embracing the concept. Down in Texas, Republican Debra Medina ran for governor on a nullification platform and became the darling of nullifiers everywhere. Here at home, Republican gubernatorial hopeful Dan Maes has more cautiously mentioned “nullification” as a political possibility. Across the country, legislators are introducing bills to declare Obamacare null and void within their respective states.

This movement is a symptom of desperation, a sign that a growing segment of the country is frantic to get out from underneath the weight of the feds. Commentators who try to draw a connection between nullification and supposed right wing racism are either historical halfwits or expect their readers to be.

But that doesn’t mean that nullification is a reliable vehicle for the conservative agenda. Even Republican Rep. Ron Paul of Texas, who thinks nullification is “a great idea,” has to acknowledge that “[i]t’s never really worked in our history.” Considering that South Carolina couldn’t successfully nullify laws emanating from the rinky-dink federal government of the 1830’s, why do today’s nullifiers think they’ll be more successful with the massive, regimented government of a George W. Bush or a Barack Obama?

(Please vote in poll to the right in red type. Must vote to see results. Thanks!)

It’s refreshing to see a group of pols, activists and academics stick to their guns and maintain such an unpopular position in the face of such overwhelming odds. But there comes a point, as Socrates suggests in Plato’s “Republic,” when courage becomes foolhardiness. Nullification’s ringleaders need to figure out what exactly they’re hoping to accomplish. If the goal is to get trounced politically but become a minor celebrity among the devotees of John C. Calhoun, as Debra Medina did, then nullification is sure to do the trick. But if the goal is to scale back the size of the federal government, then conservatives need to stay focused, disciplined and realistic.

Obamacare may never be repealed. But if it is, it will be through one of the old, established channels: federal lawsuits or federal elections. Maybe the 20 state attorneys general who have filed suit will manage to convince a federal court that Obamacare is unconstitutional. Maybe Republicans will win in 2012 and reverse the mandate. What is absolutely, positively certain is that Obama’s legislative enactments are not going to be nullified into oblivion.

What we need now are principled conservative leaders of exceptional canniness, not wide-eyed radicals who woke up yesterday thinking it was 1831.

Cole is a columnist for The Gazette’s editorial section who studies law at Columbia University.

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