Is State Nullification The Answer To Ending Obamacare?

Walter Williams thinks so.

As I am not well versed on the idea of nullification I searched the net to gain some more information on it. I found some information at Thomas Woods's LibertyClassroom. He has written an entire book on the topic. This is for those who are new to the term, don't know it's history, and are unaware of how it can be employed today.

What is it?

State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.

Says Who?

Says Thomas Jefferson, among other distinguished Americans. His draft of the Kentucky Resolutions of 1798 first introduced the word “nullification” into American political life, and follow-up resolutions in 1799 employed Jefferson’s formulation that “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.

But Jefferson didn’t invent the idea. Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Patrick Henry and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

What’s the Argument for It?

Here’s an extremely basic summary:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of 13 states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800.

Why Do We Need It?

As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.

Isn’t This Ancient History?

Two dozen American states nullified the REAL ID Act of 2005. More than a dozen states have successfully defied the federal government over medical marijuana. Nullification initiatives of all kinds, involving the recent health care legislation, cap and trade, and the Second Amendment are popping up everywhere.

What’s more, we’ve tried everything else.  Nothing seems able to stop Leviathan’s relentless march.  We need to have recourse to every mechanism of defense Thomas Jefferson bequeathed to us, not just the ones that won’t offend Katie Couric or MSNBC.

Won’t This Make the New York Times Unhappy?

More proof it’s a good idea.

Doesn’t Nullification Violate the Constitution’s Supremacy Clause?

Thomas Jefferson knew about the Supremacy Clause, it’s safe to assume.  The Supremacy Clause applies to constitutional laws, not unconstitutional ones.  For a full reply to this objection, see Professor Brion McClanahan.

Isn’t This Just a Smokescreen for Slavery?

Nullification was never used on behalf of slavery.  As I show in Nullification, it was usedagainst slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate.  Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate).  In Ableman v. Booth (1859), the Supreme Court scolded it for doing so.  In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act.  Who’s defending slavery here?

From The Daily Caller:

On Rush Limbaugh’s Thursday program, George Mason University professor Walter E. Williams outlined the case that states can nullify Obamacare, citing Thomas Jefferson’s 1789 Kentucky Resolution, which was a claim that the U. S. Constitution is a compact among the several states, and any power not delegated to the U.S. government is void. 

“I think the American citizens ought to press their state governors and legislatures just to nullify the law — just to plain nullify it and say, ‘The citizens of such-and-such-a state don’t have to obey Obamacare because it’s unconstitutional, regardless of what the Supreme Court says,’” Williams said. 

Williams cited Marbury v. Madison, which said “all laws which are repugnant to the Constitution are null and void” to further the case for nullification from the states. 

Nullification is a doctrine introduced in the infancy of the United States and was what some have suggested led to the Civil War. As far as the legal precedent of nullification and how it led to the Civil War, Williams said he doubted the repercussions would as serious as they were in 1861. 

“I think two things are different this time,” he said. “First, most Americans are against Obamacare. And secondly, I don’t believe — and you call me up and tell me if I’m wrong about this — I don’t believe that you could find a United States soldier who would follow a presidential order to descend on a state to round up or shoot fellow Americans because they refuse to follow a congressional order to buy health insurance.”

Two well known college professors, one a libertarian the other a conservative, support nullification. This has to be a good idea!  At least until full repeal of Obamacare is able to be achieved. Personally I like the idea and think we should use nullification to refuse instituting Obamacare which I still believe to be unconstitutional regardless of whether it is considered a tax or not. What do you think?