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Edward Lazarus

Why the Tenth Amendment "Nullification" Arguments Against the Stimulus Bill Are Sheer Folly - and Why It's Disturbing that So Many Years After the Civil War, They Are Still Being Raised


Thursday, March 12, 2009

In this space, over the span of many years, I have written often about the long shadow that the Civil War, now more than 140 years behind us, still casts over contemporary lawmaking. The events of this week have brought fresh reminders of how true this is – how legal arguments that one might have thought had been safely buried under the bloody fields of Gettysburg are now being resurrected as if unsullied by a Confederate history and how, no matter how much progress we make as a nation, old ideas – and bad ones – still find their way forward in difficult times.

In the wake of the passage of the stimulus bill, it was widely reported that a bevy of states, many of them so-called "red" states, entertained legislation purporting to declare the federal legislation "unconstitutional" – as, allegedly, a violation of rights guaranteed the states under the Tenth Amendment – and asserting a right of individual states to ignore the law. Stripped of the rhetoric about the immorality of the stimulus package, what these states are proposing is plain and simple a constitutional scheme under which states have a right to "nullify" any federal laws that they deem to intrude on their prerogatives.

It is difficult to see where the legislators who have drafted these states' rights bills find this "nullification" authority in the Tenth Amendment. That Amendment simply states that "the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people." Nowhere in this somewhat opaque text does the Constitution vest states with the right to unilaterally pick and choose what federal laws to obey based on their own conceptions of the Constitution. And if it somehow did, our system would simply fall apart. Federal power either overrules state power – as the Supremacy Clause dictates – or is merely advisory, which is untenable.

But if these state actions have only dubious grounding in the Constitution, they do have long and obvious historical roots – and shameful ones.

The Shameful History Behind the Nullification-Power Claims We Are Hearing Now

Back in 1828, then-Vice President John C. Calhoun gave voice to the doctrine of "nullification" in his fury over the federal tariffs that were then being imposed on states by the federal government. Like the modern-day nullifiers, Calhoun read the Tenth Amendment as providing states with a veto over disfavored federal legislation, to wit, a tariff too high for South Carolina's views of what was proper.
As Calhoun famously framed the idea: "That the sovereign powers delegated are divided between the General and State Governments ... it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction." And on this theory, a South Carolina convention passed the "Ordinance of Nullification," which declared the tariffs of 1828 and 1832 to be null and void.

The President at the time obtained legislation to coerce compliance from South Carolina, including the use of force if that proved necessary. Under this threat, a compromise was eventually reached, whereby South Carolina obtained a lower tariff rate but repealed the Ordinance of Nullification.

The nullification doctrine did not die there, however. Nullification was born with the issue of slavery in mind. Southerners conceived of the doctrine as a potential tactic for fighting any federal attempts to abolish slavery – claiming that they could just refuse to enforce any such law. And beyond serving as a potential tactic for trying to preserve slavery, the concept underlying nullification – the idea that states could act in defiance of the federal government – paved the way for the even more radical concept of secession. Indeed, it was no coincidence that South Carolina, which birthed nullification (and which is jumping on the nullification bandwagon again now), was the first state to secede 30 years later and to set us upon each other in the fight for the survival of the Union.

At Best, Invoking Nullifcation Is Simply Grandstanding; At Worst, It Is a Troubling Sign of Turmoil and Discontent in the Face of a Frightening Recession

It is hard to know what to make of the fact that a bunch of opportunistic politicians are now holding out a tarnished artifact of constitutional history as a serious interpretation of the Constitution and of our national structure. Perhaps this can be written off as mere grandstanding – symbolic gestures by politicians who are hoping to tap into a potential backlash against the inevitable growth of the federal government as it comes to grips with our economic crisis.

But nullification is a deeply pernicious idea. It strikes at the core of the constitutional bargain that was struck after the Revolution when the Articles of Confederation failed – the working principle that we are all in this together and that the purpose of the federal government, a government in which every state is represented, is to calibrate the shared sacrifices that all of us will have to bear to preserve the country's economic vitality and help it prosper. In place of this unifying idea, nullification substitutes the easy way out – by making the claim that we must all be allowed to judge our own contribution and take our own path, no matter how much our cross-purposes and divergent interests might undermine the common good.

To state the obvious, however, we do not live in ordinary times and the strains on the national fabric are increasing. A number of states already face double-digit employment – and that grim figure does not count those who are underemployed or have given up looking for a job. Unemployment nationwide will probably soon reach a comparable level. Overall, the risk of social unrest and the need for collective action to weather the economic storm are both rising.

In the face of this, it is not just wrong, but outright irresponsible to talk of nullification, much less, as actor Chuck Norris (Presidential candidate Mike Huckabee's celebrity sidekick) did today, to announce that he could readily imagine Texas seceding from the Union "sooner than we think" and that there would be "thousands of cell groups" united in solidarity around the country.

This all sounds like a very bad movie – but we need to be vigilant that this vision of how we should govern ourselves remains more fiction than fact.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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