Nodding Towards Nullification

On a conference call organized by Americans for Prosperity, Sen. Jim DeMint and Rep. Michele Bachmann, two of the more reliably nutty members of Congress, made some oblique references to nullification when discussing the states' response to healthcare reform. From TPMDC:

A caller asked DeMint what the states could do in order to stop unconstitutional action by the federal government on health care. DeMint replied, "I think the key to pushing back against the federal government is some governors and state legislators who champion individual freedom."

DeMint said he would love to see states go to court to invoke the Tenth Amendment: "If we had some states come together and say the only way to save this country is to push back." He also added: "I think you'll see some states say no more, we're not going down with the federal government."A few minutes later, Bachmann commented on this possibility as well, noting that the efforts of some Republican governors to reject stimulus money failed in large part because they were too isolated from one another. A collective action, on the other hand, would stand a much greater chance of success.

The idea that states can selectively ignore or deny the validity of federal laws is nullification. Responding to the statements of DeMint and Bachmann, Josh Marshall - who, by the way, holds a PhD in American History from Brown, where he must have studied with Gordon Wood (jealous!) - calls nullification "a crackpot idea from the start" that "hasn't been seriously entertained anywhere in the county since the Civil War (with the exception of feigned attempts in the South during the Civil Right Era)." This is basically true, but allow me one small quibble: the assertion that nullification was a "crackpot idea from the start" doesn't ring perfectly true to me.

Nullification can be traced back before the Civil War to Thomas Jefferson, who most clearly articulated the idea in response to the almost-certainly unconstitutional Alien and Sedition Acts of 1798, which, among other things, criminalized "false, scandalous, or malicious writing" against the government. Jefferson was enraged by the Acts, and not just because they were a transparent power grab by his political rival, President John Adams.

In 1798, the consensus on the relationship between federal and state power was fragile at best, and Jefferson's Kentucky Resolution asserted boldly that "the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself." To that end, Jefferson (and James Madison, who drafted a similar resolution in Virginia) articulated a more compartmentalized vision of constitutional interpretation, arguing that each branch and level of government had the authority to interpret the Constitution for itself. Madison, it should be noted, was not willing to go as far as Jefferson on this notion: he proposed using the federal judiciary to settle disputes, and though he admitted it would not be a perfect system, he still insisted that "as some such Tribunal is a vital element, a sine qua non, in an efficient & permanent Govt. the Tribunal existing must be acquiesced in, until a better or more satisfactory one can be substituted." Basically, governments need an ultimate arbiter. Jefferson, for his part, preferred to settle disputes by democratic referendum (a view he defended in an 1823 letter). The problems with this approach are obvious, but it's still a bit of a stretch to assert that this theory was "crackpot from the start." It was certainly wrong, but Jefferson and Madison weren't just any random folks writing about government (cough) - and hey, they were wrong for pretty interesting reasons.