Nullification and Secession in Modern Constitutional Thought

Sanford Levinson

• Publisher: University Press of Kansas
• Year: 2016
• Print ISBN: 9780700622993
• eBook ISBN: 9780700622986
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

The Missouri legislature passes a bill to flout federal gun-control laws it deems unconstitutional. Texas refuses to recognize same-sex marriages, citing the state’s sovereignty. The Tenth Amendment Center promotes the “Federal Health Care Nullification Act.” In these and many other similar instances, the spirit of nullification is seeing a resurgence in an ever-more politically fragmented and decentralized America. What this means—in legal, cultural, and historical terms—is the question explored in Nullification and Secession in Modern Constitutional Thought. Bringing together a number of distinguished scholars, the book offers a variety of informed perspectives on what editor Sanford Levinson terms “neo-nullification,” a category that extends from formal declarations on the invalidity of federal law to what might be called “uncooperative federalism.”

Mark Tushnet, Mark Graber, James Read, Jared Goldstein, Vicki Jackson, and Alison La Croix are among the contributors who consider a strain of federalism stretching from the framing of the Constitution to the state of Texas’s most recent threat to secede from the United States. The authors look at the theory and practice of nullification and secession here and abroad, discussing how contemporary advocates use the text and history of the Constitution to make their cases, and how very different texts and histories influence such movements outside of the United States—in Scotland, for instance, or Catalonia, or Quebec, or even England vis-à-vis the European Union. Together these essays provide a nuanced account of the practical and philosophical implications of a concept that has marked America’s troubled times, from the build-up to the Civil War to the struggle over civil rights to battles over the Second Amendment and Obamacare.

1 ^. The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric

Frivolousness Incarnate, or Serious Arguments to Be Wrestled With?

Sanford Levinson

NULLIFICATION AND UNCOOPERATIVE FEDERALISM: DISTINCT, BUT HOW TRULY DIFFERENT?

What inspires this book is the perception that there may well be said to be a nullificationist (and even secessionist) impulse coursing through contemporary America, not to mention similar impulses abroad identified by Hirschl in his own contribution. The degree to which one perceives the presence of such strains surely depends on the definitions one uses, and there are important differences among the various participants in this volume. Read and Allen, for example, want to confine the use of the term “nullification” to a particular kind of legal claim by a state that it has authority to both opine that a law is unconstitutional and, by virtue of offering that opinion, actually to invalidate it and render it without force. Gienapp also emphasizes the difference between Jefferson’s truly nullificationist language in the Kentucky Resolution and the more modest, though ultimately no less interesting, language of interposition articulated by James Madison in the Virginia Resolution and subsequent Report. I will be offering in this essay, as is true of several other authors, a more functionalist understanding noting that the central aim—which is the placing of severe, even fatal, hurdles in the way of enforcing given federal laws—may well be achieved even in the absence of declarations of invalidity.

I begin with a bill passed by the Missouri legislature in 2013, though vetoed by Governor Jay Nixon, that was aptly described as an attempt to nullify federal gun-control laws.¹ According to one reporter, “The Missouri legislation called for misdemeanor charges punishable by up to a year in jail and a $1,000 fine against federal agents. It would have applied broadly to any attempt to enforce federal gun laws and regulations—past, present, or future—that ‘infringe on the people’s right to keep and bear arms.’” A Republican legislator from a St. Louis suburb described the legislation as “probably the most far-reaching attempt by a state to protect a citizen’s Second Amendment rights” by purportedly invalidating a number of offending federal laws; one of them, dating back to 1934, imposes a tax on transferring machine guns or silencers. More broadly, the Missouri bill also would have invalidated any federal law that, according to Representative Doug Funderburk, “could have a chilling effect on the purchase or ownership of those items by law-abiding citizens.” After Funderburk acknowledged that lawmakers may have drafted the bill a bit too broadly, he responded that the principal aim was to underscore, as summarized by the reporter, that “federal laws [restricting] Second Amendment rights aren’t made in compliance with the Constitution and thus don’t have the protection of the supremacy clause.”

Although widespread predictions claimed that the Republican legislature would have little trouble rounding up enough votes to override Governor Nixon’s veto, the Missouri Senate—following a successful override vote in the Missouri House—failed to do so on September 11, 2013, by a margin of one vote. Apparently key to the senate Republican floor leader’s withdrawal of his support for the override was a letter submitted by the state’s Democratic attorney general, in which he opposed the bill on both constitutional and policy grounds. The attorney general noted, for example, that the law might prevent cooperative efforts between Missouri and federal law-enforcement agencies.

One might contrast the proposed Missouri legislation with an Idaho law signed on March 21, 2014, by Governor Butch Otter after unanimous passage (with three abstentions) in both houses of the state legislature. It was described as “effectively nullify[ing] future federal gun laws, by prohibiting state enforcement of any future federal act relating to personal firearms, firearm accessories or ammunition.”² Otter explained that he had “signed it into law as a way of protecting our Second Amendment rights under the United States Constitution and indemnifying Idaho law enforcement officials from enforcing federal firearms or ammunition restrictions that conflict with Section 11, Article I of the Idaho Constitution.”³ More specifically, the Idaho Federal Firearm, Magazine and Register Ban Enforcement Act provides that “any official, agent or employee of the state of Idaho or a political subdivision thereof who knowingly and willfully orders an official, agent or employee of the state of Idaho or a political subdivision of the state to enforce any executive order, agency order, law, rule or regulation of the United States government as provided in subsection (2) of this section upon a personal firearm, a firearm accessory or ammunition shall, on a first violation, be liable for a civil penalty not to exceed one thousand dollars.” What this seems to mean is that no Idaho public official need feel under any legal obligation whatsoever to enforce any federal law dealing with firearms.

Does this count as an attempt at formal nullification? After all, it does not use any magic words about rendering the national legislation null and void; even more important is that federal officials are not themselves estopped from enforcing federal law. It is simply the case that Idaho wants to make sure that none of its own officials join in such enforcement. The Idaho legislation can quite easily be placed within a doctrine emphasized by the Supreme Court over the past two decades by which the national government is prevented from commandeering state officials to enforce federal law.⁴ Basically the message is that if the national government wants to enforce its own law, then it must ultimately be willing to hire those who will do so and pay them out of federal funds; states have, according to the Court, the option to refuse to cooperate in such enforcement. As will be noted below, this may be an example of what Jessica Bulman-Pozen and Heather Gerken have labeled “uncooperative federalism”⁵ rather than of nullification—at least if one is being fastidious about certain legal niceties rather than adopting a more freewheeling functional approach.

Finally, Read and Allen note the passage by the adjoining state of Kansas of legislation that also purports to prevent the enforcement of any federal laws applied to guns produced and used within that state.⁶ Again, though, it is important to note the actual wording of the legislation in question, which states that “any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.”⁷

On the one hand, it is surely true that any law that violates the Second Amendment is invalid. That is true not only in the Sunflower State but also throughout the entire United States, given the thundering declaration by Chief Justice Marshall in Marbury v. Madison that a law violating the Constitution is by virtue of that fact “null, void, and unenforceable.”⁸ So one might wonder why then–U.S. attorney general Eric Holder was sufficiently displeased with the Kansas statute to have written Governor Brownback that the law is unconstitutional and that the United States “will take all appropriate action including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”⁹ Holder could not have believed that federal officials have carte blanche to enforce even unconstitutional laws. But glittering generalities about the theory of constitutional supremacy is not what the contretemps is really about. As is so often the case in American constitutional history, the debate is about who precisely gets to say whether (and when) a law is unconstitutional and only barely about the abstract proposition that an unconstitutional law is really no law at all.¹⁰ Those of us who are legal academics may opine to our students that a given law, not yet adjudicated by the Supreme Court, is “in fact” unconstitutional, or even that the Supreme Court made a grievous error in upholding a given law against a charge of unconstitutionality. But no law professor, at least to my knowledge, claims that these assertions translate into a finding of unconstitutionality and an exculpation of any student who relies on our pronouncement as a defense when failing to comply with the demands set out in the law.

Moving a bit farther south, to Texas, it is worth noting that the Republican primary for governor in 2010 featured one candidate, Debra Medina, who became the darling of many Tea Party supporters by appearing to offer full-throated support for the idea of state authority to nullify federal laws.¹¹ Medina’s website proclaimed, under the label “Restore Sovereignty,” that the United States Constitution “divides power between the federal and state governments and ultimately reserves final authority for the people themselves. Texas must stop the over reaching federal government and nullify federal mandates in agriculture, energy, education, healthcare, industry, and any other areas D.C. is not granted authority by the Constitution.”¹² One assumes that Medina thought she was stating more than a commonplace idea about the limits of national claims that, “in fact,” are unconstitutional. Rather, I presume that Medina and her supporters additionally offered a particular theory about who would ascertain that possibly controversial fact—the ostensibly aggrieved states themselves asserting their retained sovereignty. As Mark Killenbeck argues so well in his essay in this volume, there is certainly much language in contemporary Supreme Court opinions, many of them dissenting but some, importantly, majority opinions, that fully embrace the language of state sovereignty, even if they fail to delineate fully what they mean by this potentially explosive concept. If one takes talk of sovereignty truly seriously, then that surely suggests that the states themselves are empowered to render nugatory what they perceive to be constitutionally impermissible actions by the national government.

Texas politicians continue to be perturbed by the notion that the United States Constitution might constrain state power. Thus, then-governor Rick Perry responded to a February 2014 decision by a United States district judge invalidating Texas’s refusal to recognize same-sex marriages¹³ by issuing the following statement:

Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution, and it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achie...

Table of contents

• Front Cover
• Halftitle
• Title Page
• Copyright Page
• Contents
• Introduction: Zombie (or Dinosaur) Constitutionalism? The Revival of Nullification and Secession
• 1. The 21st Century Rediscovery of Nullification and Secession in American Political Rhetoric: Frivolousness Incarnate, or Serious Arguments to Be Wrestled With?
• 2. How to Maintain a Constitution: The Virginia and Kentucky Resolutions and James Madison’s Struggle with the Problem of Constitutional Maintenance
• 3. Living, Dead, and Undead: Nullification Past and Present
• 4. Marijuana, Nullification, and the Checks and Balances Model of Federalism
• 5. Almost Legal: Disobedience and Partial Nullification in American Constitutional Politics and Law
• 6. To Kill and Die for the Constitution: Nullification and Insurrectionary Violence
• 7. Political Facts, Legal Fictions
• 8. Nullification: Three Comparative Notes
• 9. Continuity in Secession: The Case of the Confederate Constitution
• 10. The Logic and Design of a Low-Commitment Constitution (Or, How to Stop Worrying About the Right to Secede)
• 11. Secession, Transnational Precedents, and Constitutional Silences
• 12. Secession as a Problem in Negotiation
• Contributors
• Index
• Back Cover