In the drama surrounding the firing of now former Attorney General Jeff Sessions, some interesting facts regarding his acting replacement have emerged. Specifically, the new Attorney General has in the past supported the right of states to nullify unconstitutional acts.
When Matthew Whitaker was making a run for the Iowa GOP U.S. Senate nomination, he said the following:
As a principle, [nullification] has been turned down by the courts and our federal government has not recognized it. Now, we need to remember that the states set up the federal government and not vice versa. And so, the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that? The federal government’s done a very good job about tying goodies to our compliance with federal programs, whether it’s the Department of Education, whether it’s Obamacare with its generous Medicare and Medicaid dollars and the like.
But, do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that. So that, as a principle, survives.
Before we get too deep into this, let’s first stipulate that, in the preceding quote, Whitaker is merely recognizing nullification as a founding principle, not that he thinks it’s a good idea. In fact, he’s warning his potential constituents that attempting something like that could incur the wrath of Washington. And even if he does still hold these views, it must be assumed that in his temporary assignment he would be serving the needs of the Trump Justice Department, not necessarily his own beliefs. Even so, it hasn’t stopped the media from trying to use this to make Whitaker into the latest Trump boogeyman.
On Whitaker and the principle of nullification, CNN recently quoted Texas law professor Stephen Vladeck, who said, “’Nullification as a serious, mainstream legal argument didn’t survive the Civil War (or the constitutional amendments that followed)… It’s irreconcilable not only with the structure of the Constitution, but with its text, especially the text of the Supremacy Clause of Article VI—which not only makes federal law supreme, but expressly binds state courts to apply it. For someone who holds those views to be the nation’s chief law enforcement officer, even temporarily, is more than a little terrifying.’”
Well, I know having the title of law-professor can be intimidating, leading many to just accept the narrative being given. But having a title doesn’t make one right, as they can merely be wrong with authority. When the U.S. Constitution was written, it wasn’t written for academic elites, that they would be the priestly class to divine this arcane document for the ignorant masses. It was written expressly and plainly for the people. And, with all due respect to the professor, he got this one wrong on every point.
When Vladeck says nullification didn’t survive the Civil War, he’s admitting that it was a viable principle before the war. Certainly, it had been used to great effect on legislation such as the Alien and Sedition Acts. The Virginia and Kentucky Resolutions, authored by Thomas Jefferson and James Madison (the fathers of the Declaration of Independence and the Constitution), were the legislation that put Washington on notice that they would not be enforcing their unconstitutional acts.
In Virginia, Madison frames the authority of Washington in proper perspective:
… the powers of the federal government, as resulting from the [Constitution], to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
Simply put, when Washington steps outside its constitutional lane, it’s the responsibility of the states to check it; this was the opinion of the founders, those that ought to know. As a result of the states using their right and responsibility of nullification, the federal government, in this case, backed-down.
So, what changed from the Civil War onward to make nullification not a thing, as our learned academic would have us believe? Simply, the attitudes and the willingness of Washington to come-down on those who don’t align lock-step with their agenda. The Party of Lincoln and its allies did their best to convince the states that they were merely administrative subdivisions of the federal government, instead of the sovereign states that delegated limited powers to a central authority. However, the Constitution didn’t change. The radical Republicans didn’t amend or abolish COTUS to fit their new vision of an American Nation, they just pretended like COTUS already agreed with them. And since COTUS remains the central document and source of federal authority, then the federal government remains bound by its limitations, despite how Washington may violate those limitations to impose their illegal one-size-fits-all solutions on us. And though the federal government may try to hurt a nullifying state, that doesn’t make nullification illegal. To believe that might makes right, rather than constitutional adherence, puts such arguers in the same camp with every tyrant in history who twisted law to get their way, from Caesar and Napoleon to Hitler and Stalin.
As for Vladeck insinuating that later amendments invalidated nullification and his appeal to the Supremacy Clause, he’s wrong there too. There has never been a COTUS amendment forbidding nullification. And while the Supremacy Clause is a legitimate part of the Constitution, Vladeck conveniently forgets the separation of state and federal law and that only constitutional law is to be regarded as supreme. I’m sure the good professor might protest greatly if Trump signed into law a bill forcing members of his esteemed profession to wear pointy hats, but I’m guessing you wouldn’t hear a hint about the Supremacy Clause. The argument (rightly) would be that the federal government cannot legally pass legislation that falls outside its enumerated powers; COTUS is clear on this in the 9th and 10th amendments. Conversely, the states have all powers not prohibited by the Constitution. All this is to say that checks on the federal government, like nullification and secession, remain legal until constitutionally prohibited.
Now, is having someone like Whitaker holding such views in a federal office like AG a good thing? It could be! If this is the case, it is refreshing that not everyone in Washington believes in an all-powerful federal state. However, despite the fact that nullification remains a state’s right until legally abolished, Whitaker wasn’t joking when he said that exercising this right would come with a cost. Washington doesn’t like to be reminded that there are some powers it doesn’t have, and for those states who raise this fact, Washington will have its pound of flesh so as to discourage said state from ever doing such a thing again. A better course of action is to quit the system altogether, resigning the Union as is our right under the 10th amendment. In the age of Brexit, states have little to fear of another Lincoln killing 600,000 people to make us stay. Also, it helps avoid the passive-aggressivism of a scorned federal government unhappy with people resisting its tyranny from within.
Whatever the solution, the problem of an overreaching Washington must be dealt with or we should just accept government is truly unlimited, that We the People are the servants of Washington and not the other way around. The people of the states of America must choose to either submit to increasing federal usurpations and the diminishing of the states, or make a stand and take back the Liberty lost to the federal-void. We must decide soon, for time is short.