Nullification: The Shame of Missouri

For a century-and-a-half, the doctrine of nullification seemed safely consigned to the dustbin of history. The State Senate of Missouri, however, has chosen to arouse this beast from its slumber. And Americans must speak out.
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White supremacists and slave owners invented the doctrine of nullification -- the idea that the States possess the right to defy federal law where a State has concluded that the law in question was unconstitutional. Most Americans, I am sure, were confident that this idea died a well-deserved death at the time of the Civil War.

Regrettably, this is not the case. It seems that just days ago, on February 20, the Republican-controlled State Senate of Missouri revived that odious doctrine by passing a bill known as the "Second Amendment Preservation Act." People who believe in the rule of law and the Supremacy Clause of the Constitution must speak out to denounce this dangerous gambit.

Let us consider the legislation in question. It declares support for an absolutist interpretation of the Second Amendment's right to bear arms. It goes on to "make it a misdemeanor for federal officers to enforce federal gun-control measures within Missouri's borders if those measures are found to violate Missourians' right to 'keep and bear arms.'" In other words, it makes state legislators and state police the interpreters and enforcers of federal constitutional law and subjects federal officials to arrest at the whim of Second Amendment absolutists.

The radicalism embodied in this particular piece of legislation is breath-taking. It has its direct antecedents, however, in the debates over slavery that began in earnest in the 1820s and 1830s and that continued up to the advent of Civil War in 1861.

White Southerners from the earliest days of the American Republic had a consciousness of being different and isolated from other parts of American life. This sense of difference arose from the awareness that the Southern way of life depended upon the ownership of slaves.

By the 1820s, this sense of difference hardened into a perpetual state of grievance. White Southerners not only were not like other Americans. They saw themselves as the victims of the massed political power of the Northeast and the "West" (a broad category embracing in particular Ohio, Indiana and new settlements in places like the territory of Michigan).

In the late 1820s, White Southerners were especially upset with tariff legislation enacted by the Northern and Western states. This legislation had the effect of protecting domestic manufacturing and commercial interests even while it weakened foreign markets for Southern agricultural commodities.

It was opposition to the tariff that was the proximate cause for the invention of the doctrine of nullification. But the deeper cause, of course, was slavery. Slavery was the backbone of the Southern plantation economy and anything that weakened markets for its produce weakened the institution.

As developed by John C. Calhoun, Robert Y. Hayne and others, nullification was premised on the belief that the Constitution created a compact among the States. After all, it was the States that sent delegates to the Constitutional Convention in 1787 and it was the States that met in ratifying conventions to approve the finished text. The Constitution, furthermore, seemed to reflect this origin when it empowered presidential electors to vote by state and gave states equal representation in the United States Senate. All of this, the Southern theorists argued, meant the Constitution was an agreement among free and equal sovereign States.

And if the States were free, and equal, and sovereign, and if they had really joined together in voluntary compact, that meant that they could judge for themselves the constitutional soundness of federal legislation. If legislation was unconstitutional, States had not only the right, but the solemn duty to object and, in the final analysis, to disobey.

Daniel Webster answered this line of reasoning brilliantly in 1830. The Constitution could only be understood not as creating a compact, but as forming a Union among the States. It aimed to unite disparate peoples into a single nation, a single People, under a single set of laws. The People -- Webster consistently capitalized the term -- ratified the Constitution and gave it continuing force and power. It was the People who made their will known through their representatives in Congress. And it was the Supremacy Clause, Webster reasoned, that gave effect to the People's will by declaring that where conflict arose, federal law always superseded the particular laws of the States.

Webster had a grim foreboding of what might occur if the doctrine of nullification were ever taken seriously. Suppose, he said, South Carolina (then the chief exponent of nullification) were to decide that the tariff was unconstitutional. And suppose further that it concluded that therefore it could freely refuse payment of the tariff.

The Port Collector at Charleston might try to enforce federal law but, Webster predicted ominously, South Carolina would call up the militia to resist. The Commander-in-Chief, the President, would then be left with no choice, but to send troops to South Carolina. Webster had a name for South Carolina's contumaciousness: "Treason." At that point, South Carolina would be guilty of treason.

For a century-and-a-half, these dangerous ideas seemed safely consigned to the dustbin of history. The State Senate of Missouri, however, has chosen to arouse this beast from its slumber. And Americans must speak out. These ideas are discredited and have no place in modern society.

It is, furthermore, in the special interest of Republicans everywhere to denounce this action. For what we see in Missouri is the radicalization of a once-proud political party (the Act passed with the near-unanimous support of the Republican members of the State Senate). America needs a healthy two-party system. And when one of those two parties gives cover to a state legislature that plays games with dynamite, then our system is far from healthy.

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