The Flaws and Dangers of the Nullification Movement

July 26th, 2010 by rubenr

We’ve discussed the increasing use of constitutional rhetoric on DeObfuscate before, but I wanted to delve into the issue a little deeper, and specifically addressing the “nullification movement” (a.k.a.  “tenthers”) and the increasing rhetoric that everything President Obama does is unconstitutional.

If you’re not familiar with the idea of nullification it boils down to this:  States can declare federal laws unconstitutional and thereby “nullify” them and make them void within their state.  It’s the sort of flawed logic that got us into the Civil War, and it’s been a debunked legal theory since 1832.  The primary legal inconsistency is that if Federal law can be nullified by states, then there’s no point in a federal government… and well, we’re basically back to the days of Articles of Confederation (and that worked out oh-so-well).  There are a LOT more issues with nullification, but I won’t get into all of them here.

As an Attorney, you’re generally ethically bound to avoid asserting fringe legal theories as hard and true fact, and if it’s a totally debunked legal theory then you shouldn’t assert it at all.  I have many Conservative Lawyer friends who would probably love living in a world where States can trump federal law whenever they feel like through nullification, but they would never assert that this is such a world.  So I was surprised to see organizations like the Tenth Amendment Center and scholars like Thomas E. Woods describe nullification pretty much as a given. When I started poking around, i realized that Woods is a historian, not a legal scholar, and I couldn’t identify anyone with formal legal training associated with the Tenth Amendment Center.  I don’t mean to suggest that a social or political movement needs attorneys or lawyers, but when your underlying claim is one to Constitutional interpretation, it might help.

But my main point in bringing all this up is the Rhetoric flowing out of if.  Rhetoric has consequences.  If you start with the assumption that the Constitution stands for what “tenthers” say it does, then it’s true: Everything President Obama’s done might be Unconstitutional.   Of course, by that measure everything George W. Bush did was also unconstitutional, as was anything done by Clinton, Reagan, Nixon, Johnson, etc.  all the way back to George Washington.  But that fact is lost in all the rhetoric describing Obama’s supposed unconstitutional assault on our “freedom”.  Rhetoric that leads Representatives in Colorado to call Obama a greater threat than Al Qaeda, or another in Tennessee to suggest secession from the U.S..  Combine that with the below video promoting “Nullify Now” get-togethers,  which features gun-shots and machine guns firing in the background and things look pretty ugly.

As Americans, no matter what our ideology, we’d expect a natural inclination to “honor and defend” the Constitution of the United States.  It’s what our soldiers do, and it’s what our elected officials are supposed to do.  By bypassing a generally acceptable framework for constitutional interpretation and substituting their own as fact, the nullification movement manages to evoke people’s passions while avoiding the more difficult (and likely unpopular) issue of what a world with nullification would actually be like.

So, not that I really want to propound my own flavor of Constitutional Rhetoric, but, given the widely accepted view that nullification is a dead legal concept, those who continue to support it are … well… striving for something Unconstitutional.

2 Responses to “The Flaws and Dangers of the Nullification Movement”

  1. fx_infidel says:

    Greetings I do not have time to respond in depth to rubner’s drivel; however, Brian McCandliss’ piece at refutes the silly notion that the States are not Sovereign Nations in an of their own selves.


    Since the States did in fact retain their primary sovereignty, they can either nullify illegal federal legislation or secede from the Union if necessary.

    If the States are not Sovereign, then they have no right of secession or nullification and The US is an absolute despotism from which we as living rational reasoning beings have a moral obligation to both escape and abolish. Rubner seems to be arguing for an all powerful nationalism without restraint or limits. Sadly the writer forgets what Jefferson and the founders knew:

    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” ~ Declaration of Independence

    It is our moral duty to abolish, secede from, or nullify the national government of the United States if we are to live as righteous people regardless of what delusional tyrant occupies the office of the Whitehouse.

  2. rubenr says:

    fx_infidel, while a appreciate your comment, I don’t really appreciate having my words relegated to “drivel” without any further argument or critique.

    That said, you’re free to think that we’d be better off in a world where states are full sovereign nations on their own, but my post is mostly focused on stressing the fact that that is NOT the world we live in.

    And if a delusional tyrant actually occupied the White House, then maybe all your rhetoric might be merited. But until then, it’s unhelpful and dangerous.

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