Guest post by Publius
Publius has lived in and spent most of his life thinking about
Washington, D.C. He is an attorney, an avid sports fan, and the editor
of The Fourth Branch.
: This is Publius's second guest post for us. You can find his first, on George Will and "engaged justices," here
have noted the irony of conservative politicians running on a platform
of undying love for and understanding of the Constitution while
simultaneously advocating the repeal of many of its significant
provisions. Vocal elements of the conservative base, primarily centered
on the Tea Party and pundits on Fox News, have advocated for repealing
part of Section 1 of the 14th Amendment (citizenship) and all of the
16th Amendment (income tax) and 17th Amendment (direct election of
Senators). Those would be significant changes to the nation's governing
text, but they pale in comparison to the most recent calls for change
The so-called "Tenther" movement holds that the Congress continues to
pass "unconstitutional" laws that are beyond Congress' power to enact,
and that the states have the right, under the Tenth Amendment, to
reject all such laws. The legal theory behind the Tenther movement
isn't novel, but it is one that has been soundly rejected -- politically,
legally, and militarily. The doctrine was used by the South to justify
its continued use of slavery prior to the Civil War. It led to the
South invoking nullification's close relative, secession, as the
ultimate exercise of state sovereignty. Military elimination of the
doctrine and the racist policies supported by the doctrine cost the
lives of over 600,000 Americans. The Constitution itself was born
following a failed history with a legal document codifying the concept
of nullification -- the Articles of Confederation.
Given the racist past of nullification and secession, and the severe
strain both policies placed on the nation and the Constitution as a
whole, one would think the conservative movement would stray far from
such policies. Instead, nullification has found new life and even a place on the ballot in many states
In Oklahoma, Missouri, Arizona, and Colorado, voters have been asked to "nullify" the recent health-care law, and nullification passed in each
of those states but Colorado. Virginia recently passed a law through
the legislature "repealing" health care with respect to that state. None
of these efforts have any legal significance (which ought to be a sign
that they aren't constitutional, but I digress).
Of course, health-care reform isn't the only law targeted by Tenthers for nullification. According to the Tenth Amendment Center
(which is pushing many of the nullification efforts), other laws
targeted for nullification include medical marijuana laws, firearm
control laws, cap and trade (which hasn't even been enacted yet), EPA
regulations, and more. In addition to repealing laws, the Tenthers
advocate passing laws or constitutional amendments which restrict the
definition of "interstate commerce" (which would restrict Congress'
ability to pass laws, because many laws are passed under the Commerce
Clause), require state approval of federal tax laws, and require a
return to the gold/silver standard.
It ought to be obvious that such efforts, if enacted, would
effectively eliminate the federal government. If the federal
government, for example, could not pass a budget without state approval,
or could not raise taxes from residents of a state until that state
consented, the federal government would be crippled. How do we know
this? Because it was already tried once before and it failed miserably
with the Articles of Confederation.
Under the Articles of
Confederation, the Confederation Congress could pass laws, but the power
of enforcement lay with the states. Furthermore, Congress itself had
no power of taxation -- all revenue had to be requested by the states.
Substantively, such provisions in the Articles of Confederation are
identical to granting states under the Constitution the power of
nullification. Under the Articles of Confederation, the federal
government neared insolvency, inflation of the "continental dollar"
skyrocketed so much that the saying "not worth a continental" was born,
and the military, desperate for funding which rarely came from Congress,
was authorized to confiscate whatever property it needed to carry on
the Revolutionary War.
Notwithstanding these clear lessons from our past and the bloodiest
war fought in U.S. history, many in the conservative base continue arguing
that embedded in the Tenth Amendment is the state right to nullify
unconstitutional laws. Taking the next step in the logical
nullification process, even conservative elected officials have articulated a state right to secession, including Republican Governor Rick Perry
of Texas, Senator Jim DeMint
(R-SC, arguably the head of the Tea Party), Rep. Steve King
(R-IA), Rep. Ron Paul
(R-TX), and more.
Arguments for nullification and even secession are, more subtly, a
rejection of Article III of the Constitution, which establishes the
judiciary and gives it the sole right to interpret the Constitution, and
Article VI of the Constitution, which establishes constitutional and
federal supremacy. Any state that considers a law to be beyond the
powers of Congress can challenge that law in the courts (as many have
done with the health-care law, for example). The courts then make a
determination as to the constitutionality of that law and, provided it
is constitutional, the law is then binding upon all states pursuant to
Article VI of the Constitution. Nullification shifts that
decision-making process away from the judiciary and into the hands of
the state political classes. In effect, the role of the judiciary as a
constitutional arbiter is eliminated.
Nullification proponents are quite familiar with the role of the
judiciary and its ability to nullify unconstitutional laws. Simply put,
such proponents have zero confidence in the judiciary and seek to
re-write Article III.
The Tea Party's admiration for the Constitution appears to end where
Article III, Article VI, and Amendments 14, 16, and 17 begin. It is an
admiration that ignores the historical fact that the Constitution was
enacted to establish a stronger central government as a replacement for
the weaker state-centered government that was failing miserably. It is
a devotion that calls for violent "second amendment remedies
" when Congress and/or the courts take an action with which one may
disagree. It is a love that calls for a return to policies that
supported the racial oppression of millions to the shame of a nation.
It is a love of the Constitution that would cause its demise.