Emerging GOP Theme: Nullification

The code words change over time (from "nullification" to "states' rights" to Pawlenty's "state sovereignty"), but the idea is the same -- we retain the right to ignore any laws we don't feel like following.
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Minnesota's Governor Tim Pawlenty last week joined in the growing chorus in his party singing the praises of nullification. He didn't come right out and use the word, preferring to talk of "state sovereignty" instead, but the concept is the same. This seems to be an emerging theme among the Republican Party as it lurches slowly towards the 2012 presidential campaign. The fact that the issue was largely settled by the Civil War does not seem to faze those wishing to dish up some red meat to GOP voters.

Pawlenty made the news while talking on a conference call sponsored by the Republican Governors' Association last Thursday. Asked by a caller about using the Tenth Amendment to reject any healthcare reform passed in Washington, Pawlenty (from two media reports, one in Politico and one from Minnesota Public Radio) responded with:

"Depending on what the federal government comes out with here, asserting the Tenth Amendment may be a viable option, but we don't know the details. We can't get the president to outline what he does or doesn't support in any detail. So we'll have to see. I would have to say that it's a possibility."

"You're starting to see more governors, me and governor [Rick] Perry from Texas, speaking out on this and asserting our Tenth Amendment rights. Asserting the Tenth Amendment may be a viable option." Pawlenty also talked of "claims, and maybe even lawsuits, if need be."

To be fair to Pawlenty, the next day he walked this back considerably:

I made some comments that made it into the press last night about the Tenth Amendment. What I was trying to convey is that we have an important amendment in the U.S. Constitution and we should at least have the discussion. Not seceding from the union, not filing lawsuits, but at least some awareness that the Tenth Amendment exists.

That was a pretty fast reversal, from "maybe even lawsuits, if need be," to "some awareness that the Tenth Amendment exists," but then, after all, Pawlenty hails from Minnesota and not Texas. In Minnesota such talk is considered a bit more unseemly (even among Republicans) than in Texas; where such talk is considered pretty mild and wimpy -- when compared, for instance to Texas' governor expressing support for exploring outright secession from the Union.

For the record, here is the text of the Tenth Amendment to the United States Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But it's not just a few Republican governors speaking off the cuff about such explosive ideas as nullification and secession. State legislatures in Republican-controlled states are passing actual resolutions stating their intent to follow through on such ideas. These are not legally-binding resolutions, but still it's somewhat of an oddity in modern America.

The first I heard of such efforts was from Hendrik Hertzberg in the New Yorker, who wrote about it a few months ago under the title "Bonkers In Georgia." A website dedicated to the idea (www.tenthamendmentcenter.com) reports (speaking of a similar resolution in Alabama) that:

If HJR10 passes both houses of the legislature, Alabama would be the eighth state to pass a resolution affirming sovereignty under the 10th Amendment, joining Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee. Similar resolutions have been introduced in thirty-seven states in the past year.

While the resolution is not legally binding, supporters say it's an important first step to "serve notice" to the federal government that it's exercising powers not delegated to it by the People in the Constitution. They say that state-level nullification of federal laws is the next step, and efforts have already begun on this in a number of states.

Montana and Tennessee, for example, have passed laws exempting people of their state from certain federal firearms regulations. In 2010, Arizona voters will have the option of approving a state constitutional amendment that would effectively ban a future national health care plan in the state. Similar laws and amendments are being considered in states across the country.

They also provide the full text of the Alabama resolution, which is much more succinct than the one that passed the state senate in Georgia by a vote of 43-1. Hertzberg dissects some of the language of the Georgia resolution, which he calls: "a resolution that mixes three parts inanity and one part prospective treason into a Kompletely Krazy Kocktail of militia-minded moonshine and wacko white lightning -- a resolution that not only endorses defiance of federal law but also threatens anarchy and revolution."

Hertzberg mirthfully points out that the resolution: "is written in a mock eighteenth-century style, ornate and pompous. Just two of its twenty sentences account for more than 1,200 of its 2,200 words. But the substance is even nuttier than the style." But what he fails to connect is that he is, in essence, calling Thomas Jefferson a nutjob. Because the language in question in the Georgia resolution ("where powers are assumed [by the federal government] which have not been delegated [to it by the states], a nullification of the act is the rightful remedy") isn't merely "mock eighteenth-century style," but in fact was written in the eighteenth century, about ten years after the United States Constitution was ratified -- and that the language came directly from Jefferson's pen. Because Jefferson wrote the Kentucky Resolutions, which is where Georgia cribbed it from. James Madison wrote a similar document which became the Virginia Resolution.

Of course, this was all before the Nullification Crisis in the 1830s, where South Carolina walked up to the brink of open defiance of the federal government (President Andrew Jackson's Vice President, John C. Calhoun, actually resigned over the issue to run for the Senate, where he took up the cause). Congress actually passed a "Force Bill" in 1833 which authorized the president to use military force against South Carolina, should it become necessary; South Carolina readied a militia to fight, as well. The issue was eventually defused, and the Civil War was hence postponed for three decades.

But the Civil War (which began in South Carolina, of course) eventually was fought. The concept of nullification was laid permanently to rest, along with the thousands of soldiers who died on both sides during the conflict. So one would think the issue would be dead forever.

Apparently, one would be wrong. The Tenth Amendment is one of the rarer parts of the Bill of Rights for the Supreme Court to actually rule on, but every so often one of these cases is taken up by the Court. And, increasingly, Republicans are using it as a "last resort" against federal laws they don't like. Although, to be fair, one of the more recent decisions (Gonzales v. Raich) went against a California woman who argued that since she was growing medical marijuana on her own land for her own consumption, the constitutional powers of the federal government to regulate interstate trade simply did not apply. The Supreme Court disagreed, but at least it was consistent, since it had ruled during World War II that a wheat farmer could not use this argument to escape federal war efforts to regulate wheat production (Wickard v. Filburn). In both cases, the Court reasoned, even if the farmer didn't sell his or her crop, it could still impact the interstate commerce for that crop. Meaning Congress could, indeed, regulate it.

The Supreme Court has also upheld Congress' right to essentially blackmail states to do what the feds want, by using the leverage of withholding federal funding to the states unless they comply with the fed's wishes. Anyone who lived through the 1980s saw how Washington used federal highway funds to blackmail states into raising their drinking age in just such a fashion. But the Supreme Court has also ruled that the feds cannot tell states to actually enforce federal laws directly. Most recently, the Court has struck down gun restrictions such as a "Gun-Free School Zone," or mandatory background checks for gun sales, which (the Court reasoned) cannot be imposed by the feds on the state governments.

Meaning that the Tenth Amendment is still open to some degree of interpretation. Most people consider it as much an anachronism as the Third Amendment (which deals with "quartering troops"), but with the conservative bent of the current Supreme Court, who knows how they would rule on a state which decided to "nullify" a federal healthcare system?

Which also means that calling the Tenth Amendment movement a bunch of nutjobs may be premature. They consider themselves in the company of Jefferson and Madison, after all. And they have a few recent Supreme Court decisions to give them hope. While outright secession is still relegated to nutjob-type thinking among most Americans today, the movement among Republicans to stick their finger in the eye of a (Democratic, of course) president or Congress doesn't seem so outlandish. This is actually an old argument. The "code words" change over time (from "nullification" to "states' rights" to Pawlenty's "state sovereignty"), but the idea is the same -- we don't care what the feds say, we retain the right to ignore any laws we don't feel like following.

And, from these indications, it will likely be an emerging theme among Republican candidates (on a small scale) in next year's elections, and (on a much bigger stage) in the 2012 presidential race. Pawlenty, after all, is widely considered to be thinking about such a run himself -- which goes a long way towards explaining why a governor of a very Northern state should be talking about a concept which usually originates in the American political discussion from the Deep South.

Chris Weigant blogs at: ChrisWeigant.com

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