Republicans and Democrats to blame for nullification
Published: Wednesday, September 18, 2013
Updated: Wednesday, September 18, 2013 22:09
The past few years of increased political polarization have produced an array of unconventional methods of legislating. Both major parties are taking their efforts to gain leverage to new extremes, and the most dangerous and detrimental of those methods is nullification.
Nullification is the practice of states passing laws in an attempt to invalidate federal laws. The supposed justification is that the states originally formed the Union, so their authority is higher than that of the federal government, and they have the right to interpret the Constitution as they see fit, even if their interpretations are contrary to the federal interpretation.
Nullification is a complicated legal argument, and it’s by no means fully summed up by the above paragraph, but the basic premise is that states can do anything they want, without any checks or balances. It sets a dangerous precedent and undermines the political process.
Most recent nullification attempts have come from the far right. In the past two years, 23 states have considered passing laws meant to Invalidate the Affordable Care Act. Montana, Kansas and Missouri have all passed or attempted to pass gun laws that would in some way exempt their citizens from federal gun regulations. Unfortunately, this isn’t just another instance of insanity coming out of the right wing; it’s a willfully ignorant and dangerous movement that weakens the credibility of the government at all levels. And worst of all, it’s happening in both parties.
The irony of nullification, which is done in the name of constitutionality, is that it’s flagrantly unconstitutional. The Supremacy clause in Article VI of the Constitution states that, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
The states did create the Union- they drafted the constitution and signed off on the passaging ceding power to it. If every state is allowed a different interpretation of the Constitution, then it means nothing. The supreme law of the nation becomes a suggestion.
There is a system in place to allow the states to challenge the federal government- the courts. Proponents of nullification seem to be slow on the uptake, but the courts have had supreme authority in interpreting the constitution since 1803. The idea of nullification has been around since 1789, and it has been cited in numerous cases, but it has never been upheld legally. So, the “precedent” for nullification is a precedent of failure and rejection.
Historically, nullification has been used in attempts to uphold the Fugitive Slave Act, resist desegregation and even escalated into secession with the Civil War. Naturally, it’s frightening when people want to revisit the policies that brought about those disasters.
These states claim that they’re trying to keep the federal government from gaining more power, but in reality they’re strengthening the government by destroying one of the checks on its power. Ignoring the role of the courts throws judicial review out the window and lets the Constitution be interpreted by the lawmakers. And if the states don’t follow the constitution, why should the federal government?
It’s not just the red states that are engaging in nullification. Washington has been ignoring its own rules for quite some time, but the Obama administration does so publicly, as a political maneuver. In refusing to enforce immigration policies and defend DOMA in court, the president deliberately circumvented checks and balances in the legislative and judicial branches. The president takes an oath to enforce the laws of this country. Just like the states, he can’t choose which provisions of his job he likes. While I support immigration reform and believe that DOMA was unconstitutional, a government with no limits to its power will be a much bigger civil rights issue than either of those things.
The most dangerous thing about nullification is that it creates a power struggle that only escalates. If both sides of the aisle engage in nullification (as they did before the civil war), where does it stop? I’m not saying we’re headed towards another Civil War, but it’s important to recognize that nullification has the ability to destabilize the country completely.
Crying “unconstitutional” isn’t the way to solve problems. We have a system in place for dealing with disputes over the interpretation of laws, and regardless of whether or not the system rules in your favor, the rule of law must be upheld.