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  • Writer's pictureMarc Johnson

Nullification Crisis


Sound and Fury, Signifying Nothing

In 1832 when the always frisky state of South Carolina objected to tariff legislation passed by the Congress and signed by President Andrew Jackson, the state’s leaders decided they could just ignore the federal act by invoking an “ordinance of nullification.”

Jackson, not for nothing called “Old Hickory,” thought his fellow southerners were nipping a bit heavy into the sour mash, while flaunting the Constitution that he and they were sworn to uphold. The president sent seven U.S. warships to South Carolina waters and Jackson told the state’s residents, with a certain decisiveness, that they were flirting with treason.

Asked by a visiting South Carolinian if the president had any message for the good people of the Palmetto State, Jackson replied, give them my compliments and tell them if they follow through with these acts of treason, “I’ll hang the first man I can lay my hand on.” Soon enough South Carolina thought better of this nullification business.

Cooler heads will surely prevail, as well, in frisky Idaho – likely in the state senate – after the Idaho House of Representatives has had its fun with a futile, costly and snicker-producing effort to nullify the federal health care legislation.

Ignoring the official opinion of the state’s Republican chief legal and law enforcement officer, Attorney General Lawrence Wasden, who is already suing the federal government over health care, as well as the considered judgment of one of the nation’s top Constitutional scholars, Dr. David Adler, the House State Affairs committee voted 14-5 on Thursday to recommend to the full House that Idaho do what South Carolina wanted to do in 1832.

At least two things are missing here: Historical perspective on the 200-plus year history of our federalist system and the kind of principled political leadership that once in a great while requires elected officials to tell the folks who elected them, sorry, you’re just wrong and we can’t do that.

The historical perspective goes back to Jackson and even farther. The principle that any state, acting on its own motion, can chose to defy the duly constructed law of the land has been rejected time and time again in American history. The legislature can hold hearings and object, it can pass a non-binding memorial voicing its displeasure, it can sue, as Idaho has, but it just can’t decide to ignore federal law. Not possible unless you subscribe to an anarchist interpretation of more than two centuries of American history.

Arkansas in the 1950’s tried to defy a federal court order – the law of the land – to desegregate its public schools and Dwight Eisenhower federalized the National Guard to make certain the Constitution was upheld; to avoid anarchy, as Ike said. End of story. States cannot ignore federal law.

At some point, genuine political leadership requires serious people to step back from these kinds of emotionally charged efforts and shine some light rather than stoke more heat. Understanding that some folks are mighty upset with the federal health care legislation and that many of them showed up to support the legislature’s nullification approach does not abrogate an elected official’s responsibility to not always play to the crowd.

One of those testifying yesterday in Idaho said, according to the Associated Press account of the hearing, “We as citizens are tired of being lorded over by representatives. We’re not conspiracy theorists. We aren’t kooks. No one is going to force me to buy anything.” It must be hard, in the face of such passion, to not get along by going along. But, once in a while it must be done.

In 1946, a very conservative Republican, Sen. Robert A. Taft of Ohio, son of the former president, delivered an historic speech at Kenyon College in his home state. Taft sought out the opportunity to publicly oppose the extremely popular Nazi war crimes trials in Nuremberg that were just then concluding. John F. Kennedy wrote about Taft’s political guts in his famous book Profiles in Courage. Here’s part of what the Kennedy Library website says about Taft, a man known in his time as Mr. Republican.

“To Taft, the [Nazi] defendants were being tried under ex post facto laws (laws that apply retroactively, especially those which criminalize an action that was legal when it was committed). These laws are expressly forbidden in the U.S. Constitution (Article I, section 9 and section 10). Taft viewed the Constitution as the foundation of the American system of justice and felt that discarding its principles in order to punish a defeated enemy out of vengeance was a grave wrong.”

Hardly anyone in America supported Taft’s views. He knew his was speaking directly into a hurricane force wind of opposition, yet he courageously stood for principle over political expediency.

“[Taft] was pilloried in the press, by his constituents, by legal experts, and by his fellow Senators on both sides of the aisle. The fallout from the speech may have also played a small part in his unsuccessful presidential bid in 1948. However, Taft so strongly believed in the wisdom of the Constitution that speaking out was more important than his personal ambitions or popularity. Many years later, William O. Douglas of the Supreme Court [a great liberal] agreed with Taft’s view that the Nuremberg Trials were an unconstitutional use of ex post facto laws.”

Only one Idaho Republican on the House State Affairs Committee, Rep. Eric Anderson of Priest Lake spoke up yesterday and ultimately voted with four Democrats to oppose the nullification proposal.

“It’s an outright defiance of the law,” Anderson said. “If we vacate that rule of law, we simply become nothing but a collection of states that decide among themselves that they’re going to nullify everything that’s inconvenient to them.”

There is a higher principle at stake here than making a useless statement about a hated health care law. Courage and political leadership, once in a while, requires an elected official to say: “I hear your concern, I may even agree with your concern, but we can’t go this far.”

The Idaho State Senate will likely have a chance to take that stand and not follow the Idaho House in making a statement of sound and fury, signifying nothing.

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