Understanding the Constitution #14: Nullification Thinking is Dangerous
“It’s just a terribly written law,” Christian County Sheriff Brad Cole said of the Second Amendment Preservation Act, which Missouri Governor Mike Parson signed in August. Cole is a Republican and supporter of Donald Trump yet fears the law will make fighting crime harder. The law declares that federal laws interfering with state laws on gun ownership and use do not apply in Missouri and that state and local authorities must not enforce them. This has already led some localities to withdraw cooperation with federal authorities in a variety of ways.
In its broader implications, the Missouri action which seeks to nullify some federal firearms laws within its borders, is a challenge to the Supremacy Clause of Article VI of the Constitution, which declares federal statutes the “supreme Law of the Land.”
The Constitution was designed to create and strengthen national union. It was ratified not by state legislatures but deliberately by state conventions so it would express the will of the whole people, not just those elected to temporary positions. It created not a compact of states but an inviolable union. States could not secede or ignore the Constitution’s provisions and federal law, though it took the Civil War to affirm that. For the framers, only a strong union could make a nation out of thirteen states and protect Americans from foreign foes and ensure domestic progress.
Missouri’s law is just one recent test of the Supremacy Clause and national unity. The Texas “heartbeat” law banning abortion after a fetal heartbeat can be detected – usually about six weeks after conception – was designed to effectively overturn Roe vs. Wade and forty years of Supreme Court decisions permitting abortion until fetal viability.
Other efforts also signal a willingness to use nullification thinking. Nearly a dozen states, 40 cities and well over a hundred jurisdictions have declared they are “sanctuaries” within which certain requests to support federal immigration laws will not be honored. There are also “sanctuary states” and smaller jurisdictions promising to ignore assumed violations of Second Amendment rights.
It should come as no surprise that the supremacy of federal laws is being challenged in a nation so politically divided. As recently as the early 1970s, nearly 70 percent of Americans trusted the government in Washington. That figure in recent years rarely exceeds 20 percent. If not surprising, it’s nonetheless disturbing. It’s not just that some state and local governments disagree with federal laws; it’s that they openly and with increasing popular support ignore or in practice overturn them. When disagreements with laws move from Constitutionally protected protests to nullification arguments and action, disrespect for the law grows (as the furor over vaccine mandates demonstrates). That can turn John Adams’s admiration that we “are a nation of laws not men” on its head. The use of force to defy or uphold laws becomes more likely. It’s no coincidence that extremist groups have grown in number as have calls for violent confrontation of authorities. January 6th may be the canary in the coal mine.
Nullification thinking is not new. Just one decade after ratification of the Constitution, Thomas Jefferson and James Madison, respectively, authored the Kentucky and Virginia Resolutions in opposition to the federal Alien and Sedition Acts. The Kentucky Resolutions articulated the idea that a state could nullify a federal law. The Virginia Resolutions talked more obliquely of “interposing” state authority against perceived unconstitutional actions by the federal government. Fortunately, these efforts faded as no other states joined them. But nullification thinking and its dangers did not.
Nullification, strongly championed by South Carolina’s John C. Calhoun, was invoked by that state when its convention in 1833 adopted an Ordinance of Nullification against federal tariff laws it opposed. The state began military preparations to resist enforcement of these laws. Violence was averted after Congress authorized and President Andrew Jackson prepared to use military force and a new tariff law was passed more to the state’s liking. But the gauntlet had been thrown.
Nullification thinking paved the path to Civil War, but even its conclusion did not dampen state efforts to nullify – directly or more craftily – federal laws. During massive resistance to school desegregation after the 1954 Brown v. Board of Education decision, states passed laws of nullification and interposition – calling upon the historical legacy of Jefferson and Madison - to evade the Court’s ruling.
Sadly, many Americans encourage nullification thinking and action. This deepens national political divisions and leads to heightened tensions within states as well. Lost in the emotional furor and self-satisfaction of nullification measures is the fact that even Jefferson and Madison were wary of the political concept they created. Neither wanted states to act alone, and Madison deliberately used the undefined “interposition” to soften the danger of union-threatening behavior.
When George Washington learned of the Kentucky and Virginia Resolutions, he told Patrick Henry that if "systematically and pertinaciously pursued" they would "dissolve the union or produce coercion". Those enamored of nullification should revisit its history and its consequences to the freedom they so highly praise.
Photo Credit: John C. Calhoun, courtesy of the Smithsonian Photo Archives
