More from Mark Pulliam (and others) on Nullification
Michael Ramsey
At Law & Liberty, Mark Pulliam wraps up a forum on nullification with a response to commentators. Here are the contributions:
Nullification of the Constitution by Mark Pulliam
Nullification and Ultimate Authority by John G. Grove
America the Compact by Tom Woods
To Restore Republicanism by Forrest A. Nabors
E Pluribus Unum by Mark Pulliam
From the response:
I am flattered that my essay received the thoughtful attention of a trio of fine scholars, who raise many interesting points and offer three distinct perspectives. American history is rich in nuance and has unfolded in a fascinating series of complex vignettes—fodder for generations of historians. Alas, the subject of my lead essay was ultimately quite narrow—and purely legal: Does the Constitution authorize individual states unilaterally to declare federal laws unconstitutional, and to resist their enforcement on that ground? The answer is no, and my respondents do not raise any serious arguments to the contrary. Yes, states can—and do—protest, complain, and lobby against objectionable federal laws. James Madison called this “interposition.”
Prior to ratification of the Seventeenth Amendment, the states’ political opposition to federal laws had substantial force. I have no beef with “interposition” or other forms of political opposition to federal laws. Nullification—meaning outright defiance, such as Arkansas Governor Orval Faubus’s resistance to Brown v. Board of Education—is a different matter. That is what this debate is about.
The concept of nullification by the states is nowhere mentioned in the Constitution, was not raised during the Constitutional Convention in 1787, is not contemplated in the pro-ratification Federalist essays, and is contradicted by over 200 years of Supreme Court decisions. In fact, the Constitution was adopted, following nearly a decade under the dysfunctional Articles of Confederation, precisely to replace the unworkably loose confederation with a strong central government. Thus, nullification advocates are left to read the “tea leaves”—fragments of history and out-of-context quotes from various founding-era figures supposedly supporting the notion that individual states have veto power over federal laws. Their case is unconvincing....
RELATED: My earlier post on U.S. v. Missouri. I think (contra the Eighth Circuit) that states are entitled to say that in their view a federal law is unconstitutional and to refuse to cooperate in its enforcement on that ground. On the Faubus example, I think states are not entitled to affirmatively interfere with enforcement of a federal law the courts have found to be constitutional (even if they think it is unconstitutional). I'm less sure about some intermediate situations.