21 March 2011

The Nullification Amendment

Today's Albany Times Union prints a letter to the editor from Eric Retzlaff of Schenectady, one of the local Tea Party Patriots. Retzlaff writes to endorse House Joint Resolution 46, introduced by freshman Rep. Morgan Griffith (R-Va.). The resolution would amend the Constitution to give a supermajority of states the power to nullify acts of Congress. Sponsored solely by Griffith, it's been referred to the House Judiciary Committee, where it's likely to go nowhere unless Tea Partiers like Retzlaff start making more noise for it.

Griffith seems to be a typical Tea Partier with a special beef against the EPA's allegedly unjustified interference with mining interests in his district. Retzlaff is unhappy with the federal government's power to " block America's development of all its energy resources." Each seeks a remedy in giving states power to veto federal law. Griffith's proposal is more ambitious than the nullification doctrine identified with John C. Calhoun. While Calhoun asserted a single state's right to obey a federal enactment it deems unconstitutional, but didn't assume that the state could compel Congress to back down, Griffith seeks a mechanism through which two-thirds of the states would compel Congress by making allegedly unconstitutional enactments null and void.

While I haven't found any statements from Griffith explaining his resolution, Retzlaff refers back to Thomas Jefferson to legitimate Resolution 46. He invokes the 1799 Kentucky Resolutions, authored by Jefferson to justify the state's refusal to enforce the Alien and Sedition Acts. As Retzlaff notes, Jefferson (who had no hand in drafting the Constitution) described the Union as a "compact" of states. In Jefferson's view, by the nature of a compact the states retain an irreducible sovereignty as parties to the compact, and are not "united on the principle of unlimited submission to their general government." In forming the Union the states only delegated certain powers to the federal government under terms set in the Constitution. Jefferson believed that the several states retained a sovereign right to determine if the federal government had exceeded its constitutionally delegated powers.
[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

The Supreme Court, presumably, can't play the role of the "common judge" because it's part of the federal government, though the Court later claimed that role for itself by striking down acts of Congress. Jefferson presumably believed that the Court was as much a "creature" of the Constitution as Congress, and thus equally "subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified." If the analogy applies, then the states are higher authorities on the Constitution than the Court, and the federal government would have no right of appeal to the Court should states nullify its laws. As Jefferson writes, "every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them."

Jefferson fears "unlimited submission" and "absolute and unlimited dominion" should federal supremacy be conceded. Not yet envisioning a judicial check on legislation, his worst-case scenario was a united front of all the branches of the federal government, with a judiciary arbitrarily confirming the arbitrary acts of the legislature or the executive and leaving the states with no hope of appeal until the next national election, if then. His were typical fears of the first federal generation, when the Constitution and government seemed most fragile. His friend James Madison, who did help write the Constitution, shared many of Jefferson's fears and wrote a concurrent set of Virginia Resolutions around the same time. Decades later, however, Madison came out against Calhoun's doctrine of nullification. Had experience mellowed his anxieties, or had age reduced him to complacency? Let historians decide.

But let's not blame Jefferson or Madison for Griffith and Retzlaff. There's one crucial difference between the Kentucky Resolutions and H.J. Res 42. For Jefferson, the time to nullify came when Congress overstepped its constitutional bounds; nullification was meant to be a statement on the unconstitutionality of a federal law. Griffith's resolution sets no such condition on state action. A constitutional opinion may be implicit in a nullification resolution, but a strict construction of Griffith's proposed amendment would deny any state obligation to back up its action by constitutional argument. From what I see, states could nullify laws "or executive regulations" for any reason they pleased. Arguing for Griffith, Retzlaff invokes constitutionality while discussing Jefferson, but claims that Resolution 42 could be used to nullify merely "detrimental" laws or regulations. His opening complaint against Obama makes no constitutional case against the President's alleged obstruction of resource development. Executive regulations, one can infer, are to be nullified not because they're unconstitutional, but because states and their residents find them inconvenient. Jefferson hoped that nullification would serve as the states' principled defense against arbitrary power; Griffith seems willing to grant states an arbitrary power to veto federal enactments with no principle attached.

Americans are touchy about "submission" and "dominance." Those words might not have been as loaded in Jefferson's time as they are for some of us today, but they do make the fears of many Founders more vivid now than they might be otherwise. Many of them knew what slavery looked like and acknowledged, on some level, that it could happen to them. For the same reasons, many of them knew what arbitrary power looked like, and believed that its practice could be widespread. Today, many of us worry more for our own personal sovereignty than for the states we live in, but the fear is largely the same and it isn't surprising that it might seek the same theoretical remedies that Jefferson reached for. All along, the problem with these fears has been their subjectivity, their blending with fantasies and paranoia. The answer isn't to tell people not to worry about arbitrary power or to coo that it can't happen here. Nor is the answer a purely reactive measure like nullification. As long as most of us think of government -- not just federal, but state and local as well -- as someone else doing something to us, many of us actually will be governed by fear. We might be better off once we believe that all government is self-government -- unless we can't even submit to ourselves.

1 comment:

Anonymous said...

So basically, what Ratlaugh is saying is Republicans and their bootlicks shouldn't have to follow the dictates of the federal government when the democrats are in power. In other words, republicans only have to support democracy when only republicans are in power.

I'd say people like Ratlaugh ought to be tarred and feathered for their continued attempts to undermine and thwart the democratic process.