Croft: US Constitution leaves no room for nullification

Guest ColumnistFebruary 4, 2013 

The 2013 legislative session has been marked thus far by bills to nullify federal laws with which legislators disagree. Rep. Bill Chumley has introduced a bill to “render null and void certain unconstitutional laws enacted by the Congress of the United States in taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty.” Lee Bright introduced similar legislation in the Senate, and more than two dozen Republican legislators, along with the state Republican Party, have expressed support for nullification proposals. Other proposals seek to nullify new gun laws the Congress may pass.

This trend is striking primarily because nullification is forbidden under the U.S. Constitution. When Congress passes a law, the president signs it and the judiciary determines that it is constitutionally valid, individual states cannot usurp the Constitution and impose their own will.

James Madison — the author of much of the Constitution — called nullification “a deadly poison” and remarked that “a more fatal inlet to anarchy cannot be imagined.” Madison continued: “The true question therefore is whether there be a constitutional right in a single state to nullify a law of the United States. We have seen the absurdity of such a claim in its naked and suicidal form…. The amount of this modified right of nullification is that a single state may arrest the operation of a law of the United States and institute a process which is to terminate in the ascendancy of a minority over a large majority in a republican system — the characteristic rule of which is that the majority will is the ruling will!”

Jefferson agreed, remarking that “acquiescence in the decision of the majority is the vital principle of” constitutional republicanism. This form of government is what South Carolina’s founders fought for. In fact, one of the earliest rejections of nullification by the U.S. Supreme Court was authored by one of our state’s most revered sons — John Rutledge. Rutledge served as a delegate to both Continental Congresses, as our first leader under the Articles of Confederation, as our representative to the Constitutional Convention and as the second chief justice of the United States.

In 1795, he wrote for a unanimous court in United States v. Peters, declaring nullification unconstitutional and warning that if “the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” This view was shared by both Charles Pinckney and Charles Cotesworth Pinckney, two other S.C. delegates to the Constitutional Convention.

In 1932, the Supreme Court unanimously reaffirmed this position, declaring in Sterling v. Constantin: “A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases.’”

In 1958, the court in Cooper v. Aaron once again made clear that “[n]o state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” This case is particularly important given the fact that Article III, Section 26, of the South Carolina Constitution requires members of the General Assembly to take the following oath of office: “I do solemnly swear (or affirm) that I am duly qualified, according to the Constitution of this State, to exercise the duties of the office to which I have been elected, (or appointed), and that I will, to the best of my ability, discharge the duties thereof, and preserve, protect and defend the Constitution of this State and of the United States. So help me God.”

The nullification bills before the General Assembly are unconstitutional and undermine the oath that S.C. legislators have taken to respect the rule of law. Making matters worse, by expending precious time and resources on a law that will not be worth the paper it is printed on, the legislators supporting them fail to address the issues of real importance to South Carolinians: improving education; creating jobs; reforming our antiquated tax and spending scheme; protecting taxpayers’ personal information; and improving our infrastructure.

Our Founding Fathers recognized that the tyranny of lawlessness is no better than the tyranny of taxation without representation. This is why they created a political process capable of correcting the problems caused by flawed legislation, within the confines of the rule of law. South Carolina’s leaders should always advocate for their beliefs, but they should do so within the political process, not as men who claim to have final power to determine the constitutionality of laws — a job the Constitution explicitly assigns to others.

Mr. Croft, a former state Democratic Party executive committee member from Saluda County, is in his second year at the University of Virginia School of Law; contact him at zacharyrcroft@gmail.com.

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