Old wine in new bottles (1/23/2011)

The doctrine of nullification, a pillar of Southern resistance to the federal government in the 19th and 20th centuries, promotes a constitutional theory that was emphatically rejected by the framers of the Constitution when they cast the Articles of Confederation into the ash can of history.

A handful of Republican members of the Idaho Legislature resurrected that discredited doctrine this week and announced that they would introduce a bill to “nullify” the recently enacted federal health care act, frequently denounced as “Obamacare.” The action is a reminder that shopworn constitutional arguments can be dusted off and poured into new vessels.

In a nutshell, our legislators’ constitutional theory rests on the false claim that, in 1787, the states exercised their sovereign authority to create the Constitution. Accordingly, the sovereign states might, at any time, claim the authority to nullify federal laws that they regard as unconstitutional. Thus, they have unsheathed the sword of nullification and laid it at the neck of the health care law, which they regard as unconstitutional. The premises behind their constitutional theory, and the reasoning behind them, are severely flawed and find no support in our constitutional architecture.

Let us consider some constitutional fundamentals. In the Constitutional Convention, the framers drafted a Constitution that replaced the Articles of Confederation, a governmental scheme that was grounded in the concept of state sovereignty. The system had been a disaster, chiefly because the principle of state sovereignty precluded effective national governance. In Philadelphia, the framers replaced “state sovereignty” with the principle of “popular sovereignty,” which, they believed, meant that the authority of the Constitution flowed from “the people,” and not the states. Since state governments, like the federal government, were creatures of the Constitution and would draw their powers from the Constitution, they could not be a party to their own creation.

But the American people, the framers held, possessed the ultimate legal authority — a principle articulated in the Declaration of Independence — and could create a government of their choosing.

The proposed Constitution, moreover, would have no authority, the framers reasoned, until the sovereign people breathed life into it through the ratification process.

The assertion that states could nullify a federal law would eviscerate the Supremacy Clause (Article VI), turn the Constitution on its head and return America to the constitutional plan of the Articles of Confederation, which the framers rejected. It is of no moment that Thomas Jefferson embraced in the Kentucky Resolutions of 1798, a version of nullification as a means of halting the “evil progress” of the Alien and Sedition Acts. He was not a framer of the Constitution and, in any case, even if he were, no individual could revise the Constitution. That requires a constitutional amendment.