[personal profile] tangaroa posting in [community profile] liberal

And when the doctrine of state nullification Rises Again, how high will it get? It's going to get high. Very high.


The doctrine of state nullification gained prominence from opposition to the Tariff of 1828, officially "An Act in alteration of several acts imposing duties on imports", and the Tariff of 1832, officially "An Act to alter and amend the several acts imposing duties on imports"; this was well before Congress learned to name their laws with clever acronyms to suggest that you must like whatever law they pass or else you hate puppies and happiness. The first Act placed per-weight tariffs on imports of iron, wool, hemp, and construction materials, and a ten percent tax on the import of any material measured in square yards. The second Act expanded the tariffs to many more imported goods, instituted penalties for those who did not comply, and placed a tariff on the import of manufactured cotton goods.

Opposition to the two laws was strongest in the southern states because the majority of the tariff-protected industries were in the northern states, so the effect of the tariffs in the south was to raise the price on stuff that they imported from overseas. And while the 1828 law did protect Southern cotton producers from foreign cotton imports, the 1832 tariff on manufactured cotton products must have hurt the American cotton exporters who supplied the European plants where these goods were produced.

It was that traditionally Progressive state of South Carolina that started a Constitutional crisis by passing the Ordinance of Nullification which declared that the state simply did not have to follow Congressional law. The Nullification Act accused Congress of "exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish". While Congress does have "Power To lay and collect Taxes, Duties, Imposts and Excises" according to the Constitution, South Carolina argues that these specific tariffs are unconstitutional because they were not meant for one of the specific powers of Congress under Article I Section 8 and because the protectionist effect of the tariffs was not equally felt among the states.

Around thirty years earlier, in the 1803 case of Marbury v. Madison, Chief Justice John Marshall had declared that "it is emphatically the province and duty of the judicial department to say what the law is" and argued persuasively that the courts have the power to throw out a law which is in conflict with the Constitution. Even before then, the legislatures of several states had ridiculed an attempt by Virginia to nullify the Alien and Sedition Acts in 1799. New Hampshire pointed out that "the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government, that the duty of such decision is properly and exclusively confided to the judicial department." Vermont added that such nullification laws are "unconstitutional in their nature, and dangerous in their tendency." Thus there was an established procedure: if you have a problem with a law, take it up in court. Here in 1832 is a state legislature saying that they can throw out federal law too.

And the legislature says a lot more than that. South Carolina required all state officials to swear allegiance to the Nullification Act or lose their jobs, and anybody attempting to question the Nullification Act's legality in court would be "dealt with as for contempt of court". In its final paragraph, South Carolina warns Congress that any attempt to enforce Congressional law would be met with secession and civil war. Like that would ever happen.

The President at the time was Andrew Jackson, who was... well, let's just say there is a reason the Democratic Party's symbol is a jackass, and it's him. But for all his faults, Jackson was not the type to take guff from anyone. In response to the Nullification Act, President Jackson attempted to lay down the law -- his law. (And that of his Secretary of State Edward Livingston, who helped write the speech.) At first Jackson makes clear that South Carolina is Doing It Wrong:

There are two appeals from an unconstitutional act passed by Congress -- one to the judiciary, the other to the people and the States. There is no appeal from the State decision in theory; and the practical illustration shows that the courts are closed against an application to review it, both judges and jurors being sworn to decide in its favor. But reasoning on this subject is superfluous, when our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land [...]

Jackson also laid down the ideological framework for Civil War Unionism and for the 20th-century expansion of the reach of the federal government:

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by compact between the States, or in any other manner, its character is the same. It is a government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.

And of the South Carolinians, Jackson had this friendly message:

Their object is disunion, but be not deceived by names; disunion, by armed force, is TREASON

While that was Jackson's opinion, it was not by any means a universally accepted opinion. Vice President John C. Calhoun, often regarded with Daniel Webster and Henry Clay as one of the three greatest American leaders of that time to never reach the Presidency, was a strong proponent of state nullification. Calhoun had declared the 1928 tariff to be "unconstitutional, unequal, and oppressive, and calculated to corrupt the public virtue and destroy the liberty of the country". As he explained:

We are the serfs of the system, out of whose labor is raised, not only the money paid into the Treasury, but the funds out of which are drawn the rich rewards of the manufacturer and his associates in interest. Their encouragement is our discouragement. The duty on imports, which is mainly paid out of our labor, gives them the means of selling to us at a higher price; while we cannot, to compensate the loss, dispose of our products at the least advance. [...]

We consider all powers as delegated by the people, and to be controlled by them, who are interested in their just and proper exercise; and our Governments, both State and General, are but a system of judicious contrivances to bring this fundamental principle into fair, practical operation. [...] But, if it be supposed that, from diversity of interests in the several classes and sections of the country, the laws act differently, so that the same law, though couched in general terms and apparently fair, shall, in reality, transfer the power and property of one class or section to another, in such case, responsibility to constituents, which is but the means of enforcing fidelity of representatives to them, must prove wholly insufficient to preserve the purity of public agents, or the liberty of the country. [...]

Calhoun argues that state nullification is both necessary to protect minorities and an intended feature of the Constitutional system of government:

If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself [...]

And so, also, in the division of the sovereign authority between the General and State Governments, by leaving to the States an efficient power to protect, by a veto, the minor against the major interests of the community, the framers of the Constitution acted in strict conformity with the principle which invariably prevails throughout the whole system, where separate interests exist.

In response to South Carolina's Nullification Act, Congress passed two laws in early 1833: one reducing tariffs, and one authorizing the use of military force against South Carolina. With the U.S. Navy arriving in its harbours, South Carolina backed down. Calhoun's position lost in this incident but the circumstances that brought it about were not forgotten; the Confederate Constitution forbid that "any duties or taxes on importations be laid to promote or foster any branch of industry".


Eight score and seven and a half years later, California stands to consider Initiative 1377 to legalize marijuana. What is the connection to the earlier battles over nullification? While marijuana is illegal under California section 11357 which would the initiative would overturn, it is also illegal under Congressional law. To declare that marijuana is legal in the state of California without changing the Congressional law which outlaws marijuana throughout the United States or overturning the Congressional law in court would be to pretend that the Congressional law does not exist. It would be a state nullification of federal law.

And we are back to the old question of whether the state can do this, one of those issues that the Civil War was supposed to put an end to. The political circumstances of today are quite different. The initiative is not in the least bit combative like the Nullification Act was; there is no threat of war and it is not as if it requires a positive drug test as a condition for employment in the offices of the state. Legalization is popular, most politicians do not care, and so we are not likely to see battleships on the horizon should the armies of Mary Jane defeat Sherman and Grant at the ballot box. There is also the recent case of Printz v. United States where the Supreme Court held on a 5-4 vote that the federal government cannot require states to enforce federal law. This allows the states an implicit right of nullification.

However, until the federal law is changed, the Constitutional crisis can begin any time the federal government decides to start it. Federal police are still obliged to enforce federal law, and so are legally obliged to arrest anyone they see selling or possessing marijuana, and all it takes is one person in the Justice Department to tell them they can do that.

There is another problem with this legal conflict, and it has to do with human behaviour. As well-known laws remain on the books but unenforced, popular respect for the whole system of laws is diminished. If we can ignore this federal law, why follow any federal law? We might as well secede.

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January 2013

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