In a May 2 column [Alabama State Senate Embraces Crackpot, Antebellum Legal Theory], Robert Schlesinger relegated the idea of nullification to the historical trash heap. But if James Madison and Thomas Jefferson strolled down the streets of D.C. today, listening to current political discourse, they'd likely declare conventional wisdom holding the federal government supreme in all it does a "crackpot post-antebellum legal theory."
Even Alexander Hamilton would undoubtedly express shock. After all, he was one of the first Constitution defenders to point out the limits of federal supremacy in Federalist 33.
Thirteen independent sovereign political societies came together to form the United States, delegating specific powers to a general government. Both supporters and opponents of the Constitution agreed the new government was to remain limited. The ratification debate revolved around one question: Would the Constitution create the limited government intended?
When anti-federalists insisted the government wouldn't remain constrained, Madison countered that the states would serve as a check. In Federalist 46, he wrote that state "refusal to cooperate with officers of the Union" and "legislative devices, which would often be added on such occasions" would serve to "present obstructions."
Here we find nullification's roots before the Constitution was even ratified.
Recently, Americans have embraced that principle in practice, if not in name. The Second Amendment debate spun the idea into the news cycle, but California began nullification efforts back in 1996 by passing Prop 215. Today, 19 states have legal medical marijuana programs, despite a Supreme Court-approved federal prohibition. Last year, Virginia outlawed state cooperation with indefinite detention under the National Defense Authorization Act. And the national ID program envisioned under the Real ID Act of 2005 still doesn't exist. Under the leadership of the American Civil Liberties Union, states simply refused to implement it.
Still, pundits continue vilifying nullification, branding it a wacky legal theory concocted by John Calhoun to support slavery.
In fact, Madison and Jefferson formalized the principles in 1798. And while nullification did play a role in the Civil War, it wasn't one you think. Northern states claimed state sovereignty to block the Fugitive Slave Act of 1850. They passed liberty laws, effectively nullifying this disgusting act denying due process to any black person accused of escaping slavery. They were so successful, South Carolina accused northern states of enacting "laws which either nullify the Acts of Congress or render useless any attempt to execute them" in its Declaration of Causes for secession.
And while some argue that the Civil War "settled" the nullification argument, it did no such thing – no more than President George W. Bush's war "settled" anything legally or morally in Iraq.
Those who brush nullification aside as "wacky" wash away the very foundation of American political thought. Jefferson wrote that the states aren't "united on the principle of unlimited submission to their general government," and the government created "was not made the exclusive or final judge of the extent of the powers delegated to itself."
Federal supremacists would have us believe the people of the states created a federal government with limited, enumerated powers, insisted on a Bill of Rights further limiting power and then left it to that government to decide the extent of its own power. In other words, we must accept the founders believed a government could exist as a self-limiting institution. Absurd.
Nullification flows from the American system. Without some check on federal power, we end up not with a limited government, possessing enumerated powers, but an indefinite one, subject to particular exceptions.
National communications director for the Tenth Amendment Center
Author of "Our Last Hope: Rediscovering the Lost Path to Liberty"