Misunderstanding the history of nullification is so commonplace that when I come across a news article or commentary (the lines are so often blurry) that gets things half-right, I’m pleasantly surprised. This is quite rare. Easily the top three misconceptions of nullification relate to the Nullification Crisis, the War Between the States, and segregation. More often than not, journalists and “enforcers of public opinion” will refer to these cases when covering the “N” word.
As it typically goes, the Nullification Crisis is described as the origin of nullification. In 1832 the state of South Carolina passed a “nullification ordinance” which sought to block a tariff that was harming trade for the Palmetto State. Our Betters typically see fit to remind us that the ordinance failed after president Andrew Jackson threatened to invade the state.
The lesson we’re apparently supposed to take away is that might makes right, and that when a dispute arises, whichever side can intimidate the other into submission has the moral high ground. What’s conveniently left out from these little nuggets of Official History is that before South Carolina could call Old Hickory’s bluff, the tariff was reduced. Note also, that nullification predates this episode by more than thirty years. Indeed, it was in the prior century that states first began to push back, at the suggestion of Thomas Jefferson.
Speaking of might making right, there’s the War Between the States. It’s often associated with nullification as well, pejoratively. This is indeed peculiar, since it was northern states which nullified federal law and not the south, as so often is reported. If you’re slightly puzzled as to why this is supposed to be a mark against nullification, don’t worry, you’re not alone.
Even though the argument makes no sense logically, it is invoked as an easy way of introducing race relations where it otherwise doesn’t fit. It’s the nuclear option for charlatans, who’s only hope is ad hominem.
Then there’s desegregation. Lest I fall victim to the fallout from some sophist wielding epithets of “racist,” allow me to point out while race is involved in this issue, for the purposes of arguing over nullification, it’s quite irrelevant. For a more thorough explanation, see here.
This is the end of the road for nullification, to hear its deniers tell the story. A bunch of southerners in various legislatures tried to ignore the opinion of the court regarding Brown v. Board of Education, so the court issued another opinion indicating that in fact, the original ruling must be complied with. Instead of throwing down the gauntlet, those states acquiesced.
Big deal. All it proves is that on this particular issue, the court’s opinion prevailed. Appealing to the court’s opinion on any issue involving nullification as proof that it’s not allowed is begging the question. The essence of nullification is that the states don’t care what’s allowed and what’s not; they’ll decide the matter and any panel of lawyers is irrelevant.
As we’re seeing, nullification is a more powerful tool now than ever. At its inception two states used it for a single purpose — opposition to the Alien and Sedition Acts. Since then a handful of states have used it for various purposes, among them opposition to war, kidnapping and slavery, and integrating government schools. A halfway decent record, I suppose.
Today it’s being actively used by dozens of states to block everything from national ID cards and weed laws, to civilian gun control and indefinite detention. Nullification is blocking implementation of the Affordable Care Act in some states, and bills to block the TSA and prohibit the use of drones domestically are making their way through state houses as I write.
Not only is nullification being used, it’s widely accepted by the general public as a means to limit the power of the federal government. This information isn’t hard to come by, either. Wikipedia’s entry for “nullification” neatly explains each of those three misconceptions mentioned above, and links to additional information are there for anyone halfway interested.
So for those looking to dismiss nullification on historical grounds, have at it. Just make sure you check the Internet before submitting something that is easily contradicted with a cursory reading of “the free encyclopedia.”
Joel Poindexter is a student working toward a degree in economics. His writing has been published by the Ludwig von Mises Institute, LewRockwell.com and the Tenth Amendment Center. He lives with his wife and daughter near Kansas City. See his blog. Send him mail.