Jefferson and Madison vs “Staff Writer”

Via Hans

Interestingly, opponents of nullification rarely, if ever, challenge James Madison and Thomas Jefferson’s reasoning head on.

Those who manage to get past the straw-man arguments centering around racism and the Civil War generally go straight to constitutional jurisprudence and Supreme Court rulings to make their case. But the principles of nullification articulated by Madison and Jefferson reject the authority of the Supreme Court as the final arbiter, based on the fundamental nature of delegated powers, and opponents never directly challenge their reasoning. Anti-nullifiers simply march right along declaring the doctrine fatally flawed with statements like this one by the author of an article published by the North Carolina Institute for Constitutional Law.

“It has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958).”

Interestingly enough, the author is listed only as “Staff Writer.”

“Staff Writer” follows the lead of the SCOTUS and flatly rejects nullification as well, based primarily on the “supremacy” of the Supremes and a laundry list of other nullification opponents. He couldn’t make his utter disdain for the doctrine any clearer.

“Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court. Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.”

The staffer deserves some credit. He does a fair job of presenting the history of nullification, even including the fact that northern states relied on the principles to battle the draconian fugitive slave laws in the 1850s. And for the most part, he resists the temptation to categorically paint nullification with the racist brush, taking a milder approach, asserting the principles have “a checkered past.”

But despite his reasoned approach and utilization of numerous academic references, the staffer falls into the same shallow arguments as his less sophisticated counterparts.

In general, the writer relies on a subtle method to make nullification seem unreasonable. In the introduction, he asserts “nullification has never been widely accepted as a solution to alleged unconstitutional federal actions” and builds on that premise throughout the article, creating the impression that no thinking person could possibly embrace the doctrine. For instance, he points out that 10 northern states flatly rejected the Kentucky and Virginia resolutions. But he leaves out important political context and never mentions that those same states embraced nullification just a decade later when politically expedient. Those northern states that vehemently opposed nullification when it applied to the Alien and Sedition acts embraced the principles to resist Jefferson’s embargo, and later, military conscription during the War of 1812.

The illegitimacy of the staffer’s subtle reasoning becomes apparent when pulled out into the open. He tries to prove nullification flawed by arguing that “most people reject it,” as if most people denying a fact makes it untrue. Most people rejected the notion that the earth revolved around the sun for hundreds of years. Their doubts clearly didn’t alter the course of the planets.

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