The importance of Issue 3

Thomas Jefferson, father of nullification

I have a running argument with a friend on Facebook who sees no value to nullification; and I admit, his arguments are impressive and, from a legal standpoint, persuasive. He sent this letter to the Columbus Dispatch, which as far as I know, was not published:

Economically, Constitutionally, and Logically, Issue 3 is a lose-lose:

Regardless of your political leanings and view of the Affordable Care Act (ACA), Issue 3 is a bad proposition for Ohio. The amendment would cost taxpayers tens of thousands of dollars, result in needless litigation, and, in the end, leave us in the exact same place as now.

Throughout our 200 year history, state-level nullification of a federal law has been attempted on numerous occasions, always with the same results. The Supreme Court consistently has found that states do not have a right to ignore or override a law enacted by the federal government. (e.g., McCulloch v. Maryland, Osborn v. Bank of the United States, Cooper v. Aaron). With 200 years of precedent against nullification, what makes us think that this will be any different?

This time, it won't be any different – Ohio will not be allowed to nullify the ACA. The state will spend tens of thousands of dollars, and countless man-hours, defending a losing battle. Instead of being able to 'opt out' of the ACA, we will be back where we are now, only with a loss of money and time. Issue 3, in the end, will change nothing. 

If Ohioans see Issue 3 as the end of the matter, it will change nothing; because, as my friend writes, it has no legal standing. Nullification does not repeal a federal law, no matter how unconstitutional that law may be. Whether it can stop an unconstitutional federal law within its own state depends on how the battle of wills between the people of Ohio and the federal government plays out, as I shall explain presently.

In 1798, Congress passed the Alien and Sedition Acts, which greatly restricted freedom of speech. Because of the First Amendment, the Acts were grossly unconstitutional; but there was no case to bring before the Supreme Court (before it was generally acknowledged that the Supreme Court could rule on the constitutionality of a law). Thomas Jefferson and James Madison held, in the Kentucky and Virginia Resolutions, that when all else had failed, the states had a right to prevent enforcement of an unconstitutional federal law within its boundaries. The nullification resolutions started a political uproar that led to a new President and Congress in 1800, and the prompt repeal of the Alien and Sedition Acts.

In 1832, South Carolina passed a nullification ordinance against the federal tariff. President Jackson threatened force against the State of South Carolina if it attempted to block federal enforcement of the tariff. The resulting battle of wills led to a compromise, in which Congress repealed the provisions of the tariff that were most harmful to South Carolina, and South Carolina agreed to accept the amended law. 

These were two examples in which nullification succeeded, not as a legal act, but because it sent a clear signal to Congress that the acts being nullified were intolerable to the people of an entire state. In other words, nullification is not a legal act, it is a political one. There are also plenty of examples in which nullification attempts failed – because the issue being nullified was not compelling, or because the cost of upholding the nullification was greater than what the people of that state were willing to pay.

Normally, people will uphold the rule of law and use the court system when they collectively feel that the system is just and fair. In such times, nullification efforts will fail. However, when the people find that the law has become merely "an instrument of the tyrant's will" (as Thomas Jefferson wrote), then they will resort to extraordinary measures.

In American political theory, there are three political steps that can be taken when the people find that the law has turned against them:

1. They can vote the enactors of that law out in the next election, and elect a Congress that will repeal that law. But what happens when people perceive that system to be unjust, not just in the last few years, but over a generation or more?
2. They can, as Ohio's voters just did, turn to nullification, to send a strong message to the Congress that the Affordable Health Care Act of 2010 is infringing on the rights of the people to make their own health care decisions. Nine other states have made the same statement. But what happens if the federal government is determined to enforce its laws over repeated nullifications, or Congress is simply tone-deaf to the people it purports to represent?
3. A state has the right to secede. Secession, like nullification, is not a legal act even though it observes a legal process. Our Founding Fathers declared independence when it found a British Parliament that was tone-deaf to the pleas of the colonists. We may be approaching a time when, having tried and failed to repeal offensive legislation or to nullify it within the states; that separating ourselves becomes the only recourse that can be initiated peacefully. We have seen instances in the last twenty years in which secession abroad has been carried out in peace; but that does not mean that any such act can be done peacefully here.

I assert the right of secession as a natural right. A good argument can also be made, based on contract law, that the Constitution of the United States is a compact between the fifty sovereign (really, sovereign) states to provide for a common defense and agreed-upon services from a servant federal government. When the federal government rejects the authority of that Constitution, the compact is broken, and the states have the right to repeal their ratification of it. 

Failing all three, there is nothing that can be done within the legal process. If the federal government is determined to suppress secession by force, then we face a situation when (again quoting Jefferson) "the tree of liberty must be refreshed from time to time by the blood of patriots and tyrants."  In other words, we would have to resort to the natural right of revolution, just as thirteen Southern states found themselves having to do 150 years ago.

The best solution is for Congress to heed the calls of the several states to repeal the Affordable Health Care Act, Real ID, the USA Patriot Act, and other offensive legislation; and if it fails to do so, for the people to enact nullification ordinances all over the place until it does. But if the federal government is intent upon establishing a tyranny over us, we have the right to secede, before any of us resort to violence.

"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary…"  -- Ohio Constitution, Article I, Section 2.

Update Nov. 10: This is 213th anniversary of the adoption of the Kentucky Resolutions, written by Thomas Jefferson, against the Alien & Sedition Acts mentioned above.