Martha Dean, the Republican nominee for attorney general in Connecticut, repeated her support for state nullification of unconstitutional federal laws in last night’s debate. She opened up my book Nullification and quoted from Jonathan Trumbull, the nineteenth-century Connecticut governor who declared: “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”
I won’t leave you in suspense regarding the reaction of her opponent, George Jepsen. Nullification, he said, is an outdated concept that led to the Civil War and “has no place in our discussion today…. The U.S. Supreme Court is the final arbitrator with what is constitutional and not constitutional. It’s not for the states to decide.”
One benefit of being a commissar is that you need never debate truly important matters. These can simply be portrayed as “extreme,” “outdated,” and having “no place in our discussion.” That’s a lot easier than openly pleading ignorance.
Since I wrote a whole book laying out the evidence against this conventional, unexamined claim, I won’t go into that here except to draw an analogy, courtesy of my friend Lou Fernandez. If you and I give a third person (call him Person C) a limited power of attorney to help govern our affairs, and that person oversteps the boundaries outlined in the contract we signed, who gets to decide if Person C is in violation of the contract? Is it Person C himself? Or is it you and I, the people who wrote and signed the limited power of attorney in the first place? Likewise, the states, as the principals to the constitutional compact, have a far better logical claim to be the judges of constitutionality than their agent, the federal government.
As for nullification causing the Civil War, that’s pretty rich. What, pray tell, would the South have had to nullify under the unamended Constitution? Now I suppose there is one way in which nullification led to the southern secession (which is not the same thing as saying it led to the war), but it will surprise George Jepsen. South Carolina’s ordinance of secession complains that the North is doing too much nullifying, and that the South is sick of it. In particular, the North was interfering with the enforcement of the Fugitive Slave Act of 1850. The Wisconsin Supreme Court got so uppity that it stood up to George Jepsen’s heroes, the U.S. Supreme Court, and declared the Act unconstitutional (the Constitution’s fugitive-slave clause notwithstanding). So I suppose in that sense nullification may have helped provoke the southern secession, but I doubt that’s what Jepsen meant by his remark.
Nullification was used throughout American history on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and the fugitive slave acts. Jepsen doesn’t mention this. No one ever does. We must stick to the narrative: the states are stupid and backward, the federal government is a progressive force, and anyone skeptical of this version of events belongs on a watch list.
Jepsen does mention the use of nullification rhetoric in Arkansas to block school desegregation, the implication being that Jeffersonian decentralism is forever discredited because states have behaved in ways most Americans find grotesque. They are states, after all, so we should not be shocked when their behavior offends us. But this is apples and oranges. This outcome was possible only at a time when blacks had difficulty exercising voting rights, a situation that no longer obtains. Things have changed since Birmingham 1963 in other ways as well. The demographic trends of the past three decades make that clear enough, as blacks have moved in substantial numbers to the South, the only section of the country where a majority of blacks polled say they are treated fairly. It is an injustice to the people of the South, as well as an exercise in emotional hypochondria, to believe the states are on the verge of restoring segregation if only given the chance. I mean, really.
By exactly the same reasoning, incidentally, any crime by any national government anywhere would immediately justify a world government. Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under such a system in the past.
Moreover, the argument is not that the federal government is bad but the state governments are infallible. The state governments are rotten, too (which is why we may as well put them to some good use by employing them on behalf of resistance to the federal government). We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction? There is a strong argument to be made that it was precisely the decentralization of power in Europe that made possible the development of liberty there.
This argument — why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again – is never used against the institution of the state itself, particularly the megastates of the nationalistic twentieth century. I rather doubt Jepsen would say, “Centralized governments gave us hundreds of millions of deaths, thanks to total war, genocide, and totalitarian revolutions. In the U.S. we can point to the incarceration of hundreds of thousands of Japanese and a horrendously murderous military-industrial-congressional complex, among other enormities. Our federal government is so remote from the people that it has managed to rack up debts (included unfunded liabilities) well in excess of $100 trillion. This is a joke. In light of this record, what intellectual and moral pygmy would urge nationalism, that outdated doctrine that led to World War II, as the solution to our problems?”
The most humane system, thinks George Jepsen, is one in which 300 million people are ruled from one city, and in which that one city gets to decide for itself whether it’s staying limited to its original charter. This is the unexamined premise that informs our entire political spectrum.
Good for Martha Dean. We need a lot more discussion of ideas that “have no place” in the regime’s world.