Sunday, August 8, 2010

Missouri's Prop C, Federalism, and Nullification

On August 3rd, the people of the state of Missouri voted on a statute known as Proposition C. The statute asked if Missouri law should be amended to "deny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?". The people of Missouri overwhelming approved of this measure, with 71% supporting. This new law was specifically designed to deny the federal government the ability to force citizens to buy health insurance. Similar measures are to be voted on in November in Indiana, New Mexico, North Dakota, and Wyoming.

While the proposition is labeled "symbolic" and not specifically called nullification, it is in fact a rare example of a state denying the federal government power within the territory of that state. Supporters of ObamaCare clearly see this proposition as a case of nullification; Dana Milbank said of Proposition C: "the initiative essentially declared null and void the federal health-care reform's requirement that individuals have health insurance." He calls nullification "a temper tantrum" and says those supporting Prop C "are jettisoning Article VI" of our Constitution with respect to the supremacy clause.

Milbank is wrong, both in respect to Prop C supporters "jettisoning Article VI" and with nullification being a "temper tantrum." Article VI only comes into play when laws are made in accordance with the Constitution; when the federal government attempts to overstep the boundaries placed upon it, Article VI no longer applies. The "Tenthers" (referring to the 10th Amendment and those who rest their argument against ObamaCare upon it) do not say states can just nullify any law they dislike; the argument is any power not delegated to the federal government belongs to the states and the people thereof. As Milbank may not have noticed, the power to force people to buy products is not one delegated to Congress, the President, or anyone else at the federal level.

Nullification, far from being a "temper tantrum", is actually a theory of federalism that deserves reconsideration. Nearly everyone who knows of nullification automatically ties it to antebellum (that bellum being the Civil War) South, with the better informed remembering South Carolina threatening to nullify tariff laws and prior to that Thomas Jefferson arguing that nullification was necessary to stop abuses of power of the Adam's Administration (with respect towards the Alien and Sedition Acts). The issue of nullification is generally lumped in with secession and then slavery, though it need not be, just as government efforts to fight tobacco use need not be tied in with the Third Reich. Nullification attempts to deal with a flaw in our federal system: what happens if the federal government oversteps its bounds? What remedies exist?

Our Founding Fathers set up a system of government via the Constitution that attempts to limit the concentration of political power. Checks and balances between the legislative, executive, and judicial branch are one way of achieving this end. The second is by dividing power on another axis, between local and national leaders. At the time of ratification, states were quite jealous of a possible central government; indeed, their first attempt at creating a central government, the Articles of Confederation, failed because of that jealousy of power. While a clear need existed for a central government capable of at least raising revenue, states were still not eager to create a powerful central government. In the end, they created a federal system in which the federal government would have predominance over foreign affairs and streamline commerce and trade while the states would control most internal matters. Powers which the federal government would have were specifically spelled out; the 10th Amendment was passed to make sure any power not mentioned belonged to the states. The federal government, when acting within its delegated powers, would have to be followed (a la Article VI), but beyond those powers it had no authority.

Governments are composed of people and in particular politicians. Everyone wants more control and politicians in particular, so it should come as no surprise that those in government would try to expand their powers. Within a decade, the new federal government was expanding its powers, much to the chagrin of Republicans (old school, as in anti-Federalists Democrat-Republicans). The problem faced by Thomas Jefferson is the same faced by John C. Calhoun and the same facing us today: what do we do if the federal government attempts to overstep its bounds?

Those bashing nullification generally have one answer to this problem: seek remedy in the courts. Which courts? Why, the federal courts, of course! The problems here are obvious. For starters, the federal courts are a part of the federal government, one of the parties involved in the controversy. The second, much more salient problem, is that the Supreme Court may make a ruling based on policy, rather than legal reasons. Just because a majority of justices wish to see the federal government expand for ideological reasons does not mean the states actually consented to the central government having that power. If anyone should know what the state delegated or did not delegate, it should be the state itself.

It is rather shocking the Founding Fathers should have left out a mechanism for determining such controversies. Of all people, the Fathers knew that governments are not by nature prone to protect the rights of others out of the goodness of their hearts. But a lack of a clearly defined mechanism does not mean we should default in favor of unchecked federal expansion.

Thomas Jefferson and James Madison (one of the three authors of the Federalist Papers, largely seen as the definitive authority in what the Constitution means and why those provisions were made) authored the Virginia Resolution of 1798 against the Alien and Sedition Acts. I want my reader to go through their argument here. The state of Kentucky adopted two similar resolutions (again largely written by Jefferson) in 1798 and 1799, which should also be read. In particular, consider this statement from the Kentucky Resolution passed in 1799:

That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy...

Nullification and a judiciary upholding the written Constitution are the only checks on an ever expanding federal government; we know from history that the judiciary cannot be trusted because more often than not justices wish to see the government expanded regardless of the contract of the Constitution. The only defense against such abuses is for the states to oppose such laws within their own jurisdiction. This is the natural check placed on an expanding federal government, no less so than judicial review, though never mentioned in the Constitution, clearly follows from the concept of checks and balances to keep the legislative and executive branch from exceeding their powers. The Kentucky Resolution of 1798 emphasizes this point: "as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

What Milbanks confuses for a temper tantrum is in fact what should occur when the central government oversteps its bounds and attempts to wield power the people of this nation never granted them. Were nullification more widely accepted and practiced, the federal government would indeed have a difficult time micromanaging internal affairs of states and people far beyond their delegated powers or ability. Those seeking a government with unchecked power certainly fear nullification; those seeking the preservation of liberty will likely find no better friend.

I intend to stop here. My reader should know that I am aware that incorporating nullification into our current political culture would be very complex and probably require reworking the federal government's ability to use funds as carrots and sticks. That will require a longer, more in depth work than I present here. As of now, with a federal government once again expanding its powers into unprecedented (and not delegated) waters, it is enough to show that some mechanism is needed to preserve the balance of powers set forth in the Constitution and that nullification is the only logical means towards that end.

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