Brief response to David Barton on nullification
Wednesday, February 24, 2010 9:14 AM

A friend who read my column sent me a copy of a 20-page paper on nullification authored by David Barton, who of course is a great friend to the cause of re-establishing constitutional government in the U.S. Our disagreement here is in the nature of a gentlemen's disagreement.

I read through David Barton's treatise and was not persuaded of his argument. In some of the cases he cites, states were trying to nullify acts of Congress which the Constitution clearly gave Congress the right to enact (such as controlling tariffs or handling negotiations with Indian tribes). In these cases, the states were wrong, not because nullification is wrong, but because they were actually opposing the Constitution rather than upholding it.

In several other instances, he treats nullification as if those who subscribe to it believe that one state can invalidate a federal law for every other state in the Union. I hadn't heard that  theory before, but in the Kentucky Resolutions Jefferson says only say that an unconstitutional federal law would have no authority in the state of Kentucky. The lawmakers of Kentucky didn't think they could nullify a federal law for another state - that's why they sent a copy of the Resolutions to every other state.

Barton's solution is to let the federal judiciary have the final say. This proposed solution certainly would not have made Jefferson happy, for he saw the germ of dissolution of the entire Constitution in the overreaching creep of the federal judiciary, and thought that the doctrine which made the Supreme Court the final arbiter of what was constitutional to be a particularly pernicious doctrine.

So the bottom line here is that if Congress passes a law it is authorized by the Constitution to enact, then a state has no basis to ignore the law, since the central government has the legal authority to enact it. The state would have no legitimate right of complaint, since it participated in delegating that particular authority to Congress.

However, if Congress enacts a law it has no authority to enact, then a State has the moral right to disregard it without waiting for the federal judiciary (itself a branch of the central government) to agree.