Emerging GOP Theme: Nullification

Minnesota's Governor Tim Pawlenty last week joined in the growing chorus in his party singing the praises of nullification. He didn't come right out and use the word, preferring to talk of "state sovereignty" instead, but the concept is the same. This seems to be an emerging theme among the Republican Party as it lurches slowly towards the 2012 presidential campaign. The fact that the issue was largely settled by the Civil War does not seem to faze those wishing to dish up some red meat to GOP voters.

Pawlenty made the news while talking on a conference call sponsored by the Republican Governors' Association last Thursday. Asked by a caller about using the Tenth Amendment to reject any healthcare reform passed in Washington, Pawlenty (from two media reports, one in Politico and one from Minnesota Public Radio) responded with:

"Depending on what the federal government comes out with here, asserting the Tenth Amendment may be a viable option, but we don't know the details. We can't get the president to outline what he does or doesn't support in any detail. So we'll have to see. I would have to say that it's a possibility."

"You're starting to see more governors, me and governor [Rick] Perry from Texas, speaking out on this and asserting our Tenth Amendment rights. Asserting the Tenth Amendment may be a viable option." Pawlenty also talked of "claims, and maybe even lawsuits, if need be."

To be fair to Pawlenty, the next day he walked this back considerably:

I made some comments that made it into the press last night about the Tenth Amendment. What I was trying to convey is that we have an important amendment in the U.S. Constitution and we should at least have the discussion. Not seceding from the union, not filing lawsuits, but at least some awareness that the Tenth Amendment exists.

That was a pretty fast reversal, from "maybe even lawsuits, if need be," to "some awareness that the Tenth Amendment exists," but then, after all, Pawlenty hails from Minnesota and not Texas. In Minnesota such talk is considered a bit more unseemly (even among Republicans) than in Texas; where such talk is considered pretty mild and wimpy -- when compared, for instance to Texas' governor expressing support for exploring outright secession from the Union.

For the record, here is the text of the Tenth Amendment to the United States Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But it's not just a few Republican governors speaking off the cuff about such explosive ideas as nullification and secession. State legislatures in Republican-controlled states are passing actual resolutions stating their intent to follow through on such ideas. These are not legally-binding resolutions, but still it's somewhat of an oddity in modern America.

The first I heard of such efforts was from Hendrik Hertzberg in the New Yorker, who wrote about it a few months ago under the title "Bonkers In Georgia." A website dedicated to the idea (www.tenthamendmentcenter.com) reports (speaking of a similar resolution in Alabama) that:

If HJR10 passes both houses of the legislature, Alabama would be the eighth state to pass a resolution affirming sovereignty under the 10th Amendment, joining Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee. Similar resolutions have been introduced in thirty-seven states in the past year.

While the resolution is not legally binding, supporters say it's an important first step to "serve notice" to the federal government that it's exercising powers not delegated to it by the People in the Constitution. They say that state-level nullification of federal laws is the next step, and efforts have already begun on this in a number of states.

Montana and Tennessee, for example, have passed laws exempting people of their state from certain federal firearms regulations. In 2010, Arizona voters will have the option of approving a state constitutional amendment that would effectively ban a future national health care plan in the state. Similar laws and amendments are being considered in states across the country.

They also provide the full text of the Alabama resolution, which is much more succinct than the one that passed the state senate in Georgia by a vote of 43-1. Hertzberg dissects some of the language of the Georgia resolution, which he calls: "a resolution that mixes three parts inanity and one part prospective treason into a Kompletely Krazy Kocktail of militia-minded moonshine and wacko white lightning -- a resolution that not only endorses defiance of federal law but also threatens anarchy and revolution."

Hertzberg mirthfully points out that the resolution: "is written in a mock eighteenth-century style, ornate and pompous. Just two of its twenty sentences account for more than 1,200 of its 2,200 words. But the substance is even nuttier than the style." But what he fails to connect is that he is, in essence, calling Thomas Jefferson a nutjob. Because the language in question in the Georgia resolution ("where powers are assumed [by the federal government] which have not been delegated [to it by the states], a nullification of the act is the rightful remedy") isn't merely "mock eighteenth-century style," but in fact was written in the eighteenth century, about ten years after the United States Constitution was ratified -- and that the language came directly from Jefferson's pen. Because Jefferson wrote the Kentucky Resolutions, which is where Georgia cribbed it from. James Madison wrote a similar document which became the Virginia Resolution.

Of course, this was all before the Nullification Crisis in the 1830s, where South Carolina walked up to the brink of open defiance of the federal government (President Andrew Jackson's Vice President, John C. Calhoun, actually resigned over the issue to run for the Senate, where he took up the cause). Congress actually passed a "Force Bill" in 1833 which authorized the president to use military force against South Carolina, should it become necessary; South Carolina readied a militia to fight, as well. The issue was eventually defused, and the Civil War was hence postponed for three decades.

But the Civil War (which began in South Carolina, of course) eventually was fought. The concept of nullification was laid permanently to rest, along with the thousands of soldiers who died on both sides during the conflict. So one would think the issue would be dead forever.

Apparently, one would be wrong. The Tenth Amendment is one of the rarer parts of the Bill of Rights for the Supreme Court to actually rule on, but every so often one of these cases is taken up by the Court. And, increasingly, Republicans are using it as a "last resort" against federal laws they don't like. Although, to be fair, one of the more recent decisions (Gonzales v. Raich) went against a California woman who argued that since she was growing medical marijuana on her own land for her own consumption, the constitutional powers of the federal government to regulate interstate trade simply did not apply. The Supreme Court disagreed, but at least it was consistent, since it had ruled during World War II that a wheat farmer could not use this argument to escape federal war efforts to regulate wheat production (Wickard v. Filburn). In both cases, the Court reasoned, even if the farmer didn't sell his or her crop, it could still impact the interstate commerce for that crop. Meaning Congress could, indeed, regulate it.

The Supreme Court has also upheld Congress' right to essentially blackmail states to do what the feds want, by using the leverage of withholding federal funding to the states unless they comply with the fed's wishes. Anyone who lived through the 1980s saw how Washington used federal highway funds to blackmail states into raising their drinking age in just such a fashion. But the Supreme Court has also ruled that the feds cannot tell states to actually enforce federal laws directly. Most recently, the Court has struck down gun restrictions such as a "Gun-Free School Zone," or mandatory background checks for gun sales, which (the Court reasoned) cannot be imposed by the feds on the state governments.

Meaning that the Tenth Amendment is still open to some degree of interpretation. Most people consider it as much an anachronism as the Third Amendment (which deals with "quartering troops"), but with the conservative bent of the current Supreme Court, who knows how they would rule on a state which decided to "nullify" a federal healthcare system?

Which also means that calling the Tenth Amendment movement a bunch of nutjobs may be premature. They consider themselves in the company of Jefferson and Madison, after all. And they have a few recent Supreme Court decisions to give them hope. While outright secession is still relegated to nutjob-type thinking among most Americans today, the movement among Republicans to stick their finger in the eye of a (Democratic, of course) president or Congress doesn't seem so outlandish. This is actually an old argument. The "code words" change over time (from "nullification" to "states' rights" to Pawlenty's "state sovereignty"), but the idea is the same -- we don't care what the feds say, we retain the right to ignore any laws we don't feel like following.

And, from these indications, it will likely be an emerging theme among Republican candidates (on a small scale) in next year's elections, and (on a much bigger stage) in the 2012 presidential race. Pawlenty, after all, is widely considered to be thinking about such a run himself -- which goes a long way towards explaining why a governor of a very Northern state should be talking about a concept which usually originates in the American political discussion from the Deep South.

 

Chris Weigant blogs at: ChrisWeigant.com

 

 

 

Comments

[Mildmannered]

Tenth Amendment -- he wants to get rid of Social Security and Medicare too, I guess

[Doofus]

The 10th Amendment was the last item in the Bill of Rights, and so it
represents a sort of 'miscellaneous' amendment, and seems somewhat
more ambiguous than the others. It has some relevance.

However, aside from the phrase 'provide for the general welfare', there is
nothing about healthcare (or social security) in the Constitution, so it is
arguable that the federal government should actually have a role in such
matters. The Constitution (& the Bill of Rights) was intended to establish a
constrained central government and still serves that purpose. That Social
Security was enacted without an Amendment is kind of odd, really a reflection
that national politics were such that it would have been difficult more than
it wasn't appropriate to do so. And the same is true for national healthcare,
Social Security being a weak precedent.

[Doofus]

By the way, I am still personally very much in favor of practically
any form of national healthcare, though I'd like an Amendment
to support such measures also.

[Doofus]

Oh, and the phrase is 'promote the general welfare' and it appears
in the Preamble, and suggests one of the general purposes of the
document, more than endowing a specific responsibility.

[DinkSinger]

Yes but the Article 1, Section 8 of the Constitution, which enumerates the powers of Congress begins:

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States...".

So it would seem providing for the general welfare is as much a Congressional power as providing for the common defense. The problem is the traditional interpretation of this first clause granting powers to Congress is that it only grants the power to lay taxes to provide for the general welfare not to do anything else to provide for the general welfare.

[S1m0n]

Exactly how was the "concept of nullification was laid permanently to rest" in the civil war? Which articles or amendments in the constitution were changed to accomplish such a thing, and how?

[unitron]

"Exactly how was the "concept of nullification was laid permanently to rest" in the civil war?"

It established the precendent that if the rest of the US is strong enough to beat you up it can keep you from leaving.

(I agree that The Constitution is sorely lacking, perhaps deliberately so, definitive rules on whether, and if so, how, states can leave the union or not.)

[Doofus]

If 'nullification' is the notion that states can ignore laws they don't approve of,
that's probably always going to be with us, but the Supreme Court seems to
frown on such behavior. ('How many divisions does the S.C. have, anyway?)

The matter of secession, whther states have the right to leave, was settled
by the S.C. after the Civil War. 'Texas vs. White'

'The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?' - Chief Justice Salmon Chase (Wiki)

[VioletDatura]

So how would that work, Pawlenty? Would you swap out with a saner state close to the Mason-Dixon line or what? Can we keep Minneapolis?

[DinkSinger]

Abraham Lincoln on state sovereignty in his "Special Message to Congress", July 4, 1861:

"Much is said about the "sovereignty’’ of the States; but the word, even, is not in the national Constitution; nor, as is believed, in any of the State constitutions. What is a "sovereignty,’’ in the political sense of the term? Would it be far wrong to define it "A political community, without a political superior’’? Tested by this, no one of our States, except Texas, ever was a sovereignty. And even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States, and the laws and treaties of the United States made in pursuance of the Constitution, to be, for her, the supreme law of the land. The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty. By conquest, or purchase, the Union gave each of them, whatever of independence, and liberty, it has. The Union is older than any of the States; and, in fact, it created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union threw off their old dependence, for them, and made them States, such as they are. Not one of them ever had a State constitution, independent of the Union."

[Chris Weigant - Huffpost Blogger]

DinkSinger -

I wonder what Lincoln would have had to say about how Hawai'i joined (which had been a kingdom which predated the USA)... of course, that was much later, after Lincoln's time.

But still, a fascinating quote. Thanks for posting it!

-CW

[DinkSinger]

My guess is the same thing he said about Texas.

With respect to Texas and the Mexican War it is valuable to recall that in his single term in the House, Lincoln was the Dennis Kucinich of his day, unwavering in his belief that "the war with Mexico was unnecessarily and unconstitutionally commenced by the President."

[DinkSinger]

By the way, the Kingdom of Hawaii was established in 1810. In 1776 Hawaii was still ruled by many local chiefs, similar to the tribes of the indigenous American people.

[DinkSinger]

One historical correction. John C. Calhoun did not resign from the Vice Presidency to run for the Senate (despite what Wikipedia says in the Nullification Crisis article). He ran for the Senate while still Vice President and resigned to take his seat in the Senate after his election. In May 1832 the Democratic National Convention nominated Martin Van Buren for Vice President. Subsequently, in a negotiated deal the South Carolina legislature elected Senator Robert Hayne governor. After Hayne resigned from the Senate, the legislature elected Calhoun to complete his term. Calhoun resigned his lame duck Vice Presidency on December 28, 1832, about ten weeks before the end of his term, and was sworn in as Senator the following day.

[Chris Weigant - Huffpost Blogger]

DinkSinger -

I did wonder about it, and so I looked up the date when Calhoun resigned, but all I found (in an actual encylopedia printed on paper, no less!), was "December, 1832." It did seem a little odd because it was so late in the term, and appeared to be after the election. But the entry didn't say much more than that, and I didn't track it down further because I had so many other things to look up. Another oddity was that Calhoun (this may have been in 1824, not 1828, I don't remember) was BOTH parties' candidate for VP that year. This must have been after the spoils system was instituted, since there were VP candidates, but I still found it odd. I've written previously about the 1824 election (when the House dissed Jackson), but I must admit I don't know a lot about Jacksonian era history. Thanks for the correction!

Mea culpa to everyone.

-CW

[DinkSinger]

There have been VP candidates since the 12th Amendment was adopted after the debacle of 1800. However, VP candidates were not chosen by the Presidential candidate until quite recently. In the 1824 election Calhoun was supported for the Vice Presidency by supporters of both Adams and Jackson, both still Democratic­-Republica­ns.

From 1804 until 1816 candidates were nominated by party congressional caucuses. In 1820 the caucus did not meet because of inclement weather and because the incumbent President Monroe was running unopposed. In 1824, the caucus nominated William Crawford and Andrew Gallatin, but only 66 of the 261 members of congress participated. Additional presidential candidates, Andrew Jackson, Henry Clay, John Quincy Adams and John C. Calhoun, were nominated at the state level by legislatures, caucuses and conventions. Calhoun decided that he would rather win the Vice Presidency than lose the Presidency, became a Jackson supporter but received support from both the Adams and Jackson camps. There is a sidebar in the Wikipedia that shows him as the running mate of all four presidential candidates but it is in error. Electors mixed and matched, but most Clay electors supported Nathan Sanford and most Crawford electors, Nathaniel Macon.

By 1828 the two party system was reemerging. The congressional caucus system of nominations was gone, but the national convention system was still in the future. There were clear tickets of Jackson/Calhoun whose supporter called themselves Democrats and Adams/Rush whose supporters called themselves National Republicans.

[joanndarc]

it reminds me of the Former Soviet Union. So who is going to be talking about Georgian independance now?

[LindaCat]

Secession, sedition and sovereignty are three different words for at least three different concepts with some overlap. Sometimes authors slop between these notions. It can be confusing at times.

As for the 3rd amendment - one would think it was outdated, but of course it isn't.

http://www.cbsnews.com/stories/2005/09/22/opinion/main878822.shtml - second paragraph.

The commerce clause has been overextended and hopefully will be trimmed back. Guess we'll find out in the next few years.

http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Enumerated_powers

[repearwo]

Ignorance. My state, Texas, is lead by well manicured dolt that wants to secede. Now states are declaring their sovereignty. I say fine let them be sovereign. Establish Toll Booths on all Federally funded roads in and out of the state.

They want to pick and choose what they think is constitutional, when in fact it is up to the Supreme Court to make such determinations. Pawlenty needs to be very careful how far he steps in to Wacko land.

It was a small wacko group that started the Civil War because of imaginary ills done them by the Industrial North. In Germany it was a small minority that led to the destruction of Germany. Now again a small minority with delusions of persecution are moving is all to familiar patterns. Will the 70% of this country that is relatively same raise their voices, votes, contributions to candidates and support of Business to shout down these firebrands and rabble-rousers. Or will they stand by quietly while all crumbles around them and wonder later, "What happened".

[unitron]

"...because of imaginary ills done them by the Industrial North. "

Imaginary?

[Patrick Garies]

Well, I, for one, don't consider freeing slaves to be an "ill". Not sure what other ills you speak of.

[BLBass]

Hi again, Chris. Great piece -- it must be hard to get together a whole column's worth of coherent info about the 10th Amendment, since it's so obscure, but I've noticed it popping up in conversations lately (and not always in the places it might be expected) so it's definitely good to have some scholarship on the subject. I'd love to see more when you can get it.

I'm especially glad to see the mention of Raich -- true Libertarians are justifiably upset with that decision but I doubt any but the most libertarian-leaning Republicans would be willing to acknowledge that their arguments must be applied consistently, including to cannabis cultivation. Much as it rankles, I tend to think that decision was made appropriately. (Which is the best argument for a real push on Federal cannabis legalization, or at the very least decriminalization for industrial and medical use, rather than allowing the States and the Feds to keep fighting this out.) Thus I don't see any inconsistency in my view that current "conservative" 10th-based claims are not reasonable interpretations of the Amendment. Consistency is almost as dirty a word as "liberal" or "Clinton" among some on the right, but it's an important element in any policy debate.

[Chris Weigant - Huffpost Blogger]

BLBass -

On the contrary, I thought this article would be an easy puff piece to write on Pawlenty's opportunism playing to the GOP base. But when researching it, I found a mountain of info, both historical and recent. Check out the link to "Nullification Crisis" to see how in-depth the info out there is, just for one example.

And anyone interested should check out www.tenthamendmentcenter.com as it is not a partisan site at all, but rather one spotlighting one particular issue from both sides.

Anyway, as I said, I thought this would be an easy, short piece, but it turned into a reseach-intensive thing to write.

-CW

[BLBass]

Hmm, I'm less impressed than you seem to be in tenthamend­mentcenter­'s objectivity on the matter. I agree it avoids making explicit partisan declarations and views both issues dear to both parties through the same lens, but it takes a strong stance on the matter (as expected from the name) and I don't see much conflicting evidence so I take its presentation to be somewhat slanted at best. There are some who would argue that this is because there isn't any countervailing evidence, but that requires willfully ignoring much of our judicial and legislative history -- rather like Scalia's grilling of the government's lawyer in this week's campaign finance case, aiming for a predetermined conclusion at the expense of stare decisis. In t.a.c's case that's at least internally consistent -- they come right out and say that they don't believe the Supreme Court is the rightful arbiter of the demarcation between State and Federal power.

Especially these days I know there's a lot out there on the topic, which is why I welcome any synthesis, but what I thought was impressive was that you made a coherent whole of pretty disjointed parts.

[Smithn]

I'd like to start a march against politicians who had the time & resources to come up with this stuff. Jeeeeeeeezzzzzzzzzz let's get on with getting something done and forget about making obstructionist news each week.

[Cautious]

http://www.usconstitution.net/xconst_A1Sec8.html

[Cautious]

U.S. Constitution - Article 1 Section 8

[repearwo]

not sure your point, but the "all other Powers vested by this Constitution in the Government of the United States" is the rub. The founders were necessarily vague.

The delusions of people who think that the Government is some kind of threat. We the people are the government and the Tea Party Nuts are yelling that they are a threat to themselves. The real power is with Corporate America some of which is Sinister and some of which are just foolish.

When all is said and done the Corporations will be in place and we the people will no longer have any rights. That will be justice because we just did not pay attention to the big picture. Looking out for Number one is a prescription for disaster.

[Cautious]

Isn't the phrase "general welfare"in that part too?

[VioletDatura]

Seriously, the first comment on this thread?

I can't be the only one ready to say goodbye to them.