Constitutional Opinions

Null and Void?

The question of nullification, though, is going to be difficult to avoid in the months ahead. Talking Points Memo puts at 20 the number of states mulling legislation to resist federal gun controls.

By From the March 2013 issue

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"Be careful!” a crony, Myron Magnet, fairly exclaimed when I mentioned to him, en passant at our club, that I was going to do a column on the doctrine of nullification. “Just be careful.” “But, but, but…” I said, “it’s such a hot topic right now. County sheriffs are threatening to refuse to enforce President Obama’s restrictive gun laws. Some state legislators are talking about passing laws to prohibit their enforcement. I mean, we are getting down to the bedrock.”

Magnet, who has muttonchop whiskers and whose book on the American Founders is being brought out by Norton, dropped his chin and looked at me over his spectacles. “I’m telling you,” he said, “be careful.”

No doubt Magnet was referring to the fact that it was slaveholding states, seeking to defend their agrarian economies from high tariffs, that promoted the notion that states could nullify federal laws. Jim Crow sought refuge in nullification during an era when opponents of the civil rights movement were flying the flag of states’ rights. I was then, and am now, with the civil rights movement. Magnet wants no part of racism, either.

The question of nullification, though, is going to be difficult to avoid in the months ahead. Talking Points Memo puts at 20 the number of states mulling legislation to resist federal gun controls. Sheriffs are talking about refusing to enforce them. “Neither I, nor any of my deputies, will participate in the enforcement of laws that violate our precious constitutional rights, including our Second Amendment right to keep and bear arms,” NBC quoted Terry G. Box, the sheriff of Collin County, Texas, as saying. The New York Times reports that in recent weeks, dozens of sheriffs from across the country have announced public opposition to Obama’s call for new gun laws. They have been releasing what the Times calls “a deluge of letters, position papers and statements laying out their arguments in stark terms.”

These sheriffs know they have Mr. Obama right where they want him. Their responsibility, after all, is the same as his. They are sworn to uphold the same Constitution. This is a feature of the Constitution itself, which requries that all members of Congress, members of state legislatures, and all executive and judicial officers, “both of the United States and of the several States” shall “be bound by Oath or Affirmation, to support this Constitution.”

Clearly Mr. Obama feels he has no responsibility to enforce laws he views as unconstitutional. He said as much in respect of the Defense of Marriage Act. In February 2011, the president determined that the 1996 law, which bars federal recognition of same-sex marriages, is unconstitutional. The New York Times reported that the president told the Justice Department to stop defending it in court.

In an editorial, the Times congratulated the president. It called the law, which President Clinton signed, “deplorable.” It said Mr. Obama did “the right thing” and “scored Congress’s shabby violation of constitutional rights that supposedly protect all Americans.” The Supreme Court has signaled that it will have the last word on the question, and, in respect of guns, that may be the ultimate goal—or fate—of the sheriffs. The thing to mark is that the sheriffs and the president are in the same situation. They don’t feel bound to enforce a law they reckon is unconstitutional.

IT HAPPENS THAT THIS STREAK goes back a long way in America. Our republic was just getting tuned up when the Fifth United States Congress passed the Alien and Sedition Acts. John Adams signed them with a quill dipped in the ink of the Devil’s own squid. No one could do anything about it because a) the Supreme Court hadn’t yet announced its possession of the power to overrule Congress and b) the Court was controlled by Federalists anyhow. But it was such an affront to the First Amendment that both Virginia and Kentucky passed resolutions saying the Acts violated the Constitution (though most of the other states promptly rejected similar measures).

Nor were these state resolutions written by rednecks. Virginia’s was authored by James Madison and Kentucky’s by Thomas Jefferson. The Kentucky resolutions actually said that the state had the power to nullify the acts and declare them void. In Virginia, Madison went about it a bit more delicately. He knew he was playing with constitutional fire. As a result the legislature limited itself to a protest against Congress’ “palpable and alarming infractions of the Constitution.” Madison also later wrote a famous report in which he tried to extricate himself from the nullification arguments that would have unraveled the country he’d done so much to create.

The report, adopted by the state assembly in 1800, renewed the Virginia Resolution, but clothed it in ameliorating language. It pointedly stopped short of calling for secession, but sketched a right of interposition. One set of notes on the report recorded that an original backer of the resolution, John Taylor of Caroline, had wanted to declare the Alien and Sedition Acts null and void, but, at Madison’s behest, the phrase was taken out in favor of, simply, “unconstitutional.” The acts themselves went off the books once Jefferson became president.

The most famous nullification crisis erupted in 1832, when sectional disputes over tariffs prompted South Carolina to “nullify” federal taxes on imports within its boundaries. President Andrew Jackson objected, readying the armed forces and arguing that, “If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy.”

Myron Magnet, in an essay two years ago in City Journal, invited readers to imagine Madison’s horror when South Carolina cited the Virginia resolution in defending its claim to a right to nullify tariffs. Later nullification was used by abolitionists to try to block enforcement in the north of the Fugitive Slave Act. The idea took an ugly turn when it was used to defend Jim Crow. When nullification has been tested in the courts, it has failed to prosper.

So it’s going to be something to see, when the sheriffs go to the mat against new laws and executive orders narrowing gun rights. It will be a new test of the old idea of interposition, part of the perpetual motion of our system of checks and balances. But one doesn’t have to read too far into the history of all this to share Magnet’s instinct to advise, “Be careful, be careful.”

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).