by Tim Baldwin
Opponents to using an expressed remedy in the Constitution (Article V) to limit federal power have declared their preferred remedy for limiting federal power: state nullification. Notable among these opponents is The New American. In its October 7, 2013 edition, author Larry Greenley tries to rebut the use of Article V as presented by Mark Levin in The Liberty Amendments. He concludes,
One of the constitutionalist strategies for reining in our out-of-control federal government is state nullification of unconstitutional federal laws. (“Levin’s Risky Proposal: A Constitutional Convention,” page 7.)
Presumably, Greenley expressed what he believes is the most useful remedy to confront federal abuses, even though he does not discuss—even slightly—how nullification will rein “in our out-of-control federal government.” In truth, Greenley cannot show how nullification works because, in the grand scheme, nullification has not reined in federal power, all constitutional constructions about State rights notwithstanding.
When States “nullify” a federal law, history shows us that it only leads to federal litigation. A nullifier could as easily call that remedy litigation. We know laws without force are no laws at all but are only resolutions or statements. Yes, statements are necessary to express political will and change public opinion, but these statements have no effect of limiting force. Looking at the Virginia and Kentucky Resolutions, which explain nullification’s platform, nullification was never expressly a remedy of force but only of political expression.
In truth, Madison’s Report of 1800 explained that the States’ duty of defending the Constitution included not just statements but using Article V to actually control the federal government. As well, the debates in Kentucky concerning the Resolutions of 1798 showed their understanding of how Article V could be used to control Congress. But consider how today’s nullifiers refuse to view Article V as the Founders intended and refuse to treat it in the same manner as other forms of nullification.
Nowhere in the Constitution does state nullification or interposition exist, just as the right of secession is not expressed in the Constitution. Thus, the argument for the existence of such a state right derives from (deductive and inductive) arguments about the implied or inherent powers of the States relative to the federal government. In so doing, nullifiers have written countless volumes to “prove” the matter and use a host of sources including the Enlightenment Philosophers, the Federal Convention Debates of 1787, the Virginia and Kentucky Resolutions, the Federalist Papers, correspondence among Founding Fathers, and more. To them, their conclusions are based on a firm foundation derived from constitutional construction, which we know is, at best, subject to (differing) interpretation.
But many nullifiers reject any interpretational latitude on the subject despite the fact that some opponents to nullification would be grouped in the same political team as nullifiers (i.e. they want less federal government and restored Federalism). In sharp contrast, these nullifiers claim Article V is the biggest unknown constitutional factor in our system of government, despite its having an article all to itself (not an insignificant fact).
These nullifiers’ treatment of Article V begs these questions:
- Why do nullifiers use all sorts of interpretive formulas and legal constructs to declare the absolute certainty of a State power that is not even in the Constitution yet refuse to do the same regarding Article V?
- Why do nullifiers refuse to use the same kinds of sources to understand and prove the limited purpose and known procedures of Article V as they do to prove that States can nullify federal law?
- Why do nullifiers ignore Madison’s description of nullification as including amending the Constitution using Article V?
- Why do nullifiers ignore America’s history regarding the ineffectiveness of limiting federal power through nullification?
Nullifiers’ refusal to approach Article V with the same intellectual pioneering and zeal reveals their intent to cover evidence contrary to their personal proclivity. Instead of interpreting the Constitution in a manner that puts certainty and predictability to Article V (comporting to the age-old maxim that no legal interpretation is to produce an absurd result), they adopt the opposite approach: they shed no light on Article V; they cast it in the most horrific and fearful manner; and they expect everyone to despise a remedy the Founders gave us to limit federal power. In short, they are constitutional hypocrites.
The truth is, Article V is more certain than state nullification, and it is a power that should be embraced by any society capable of self-government. As Rob Natelson shows, as well as other scholars like Michael Stern, American history and constitutional law provide us with details of how Article V operates. Article V is not a mysterious black hole as opponents purport it to be. Nullifiers simply choose to ignore the evidence.
There is coming a time in America’s future when not supporting Article V to control the federal government will amount to aiding the federal government. You cannot sit on the fence on this issue. A democratic republic requires numbers to win political victories. Not supporting this constitutional remedy puts more numbers on the side of maintaining status quo. Your sincerity does not make your action correct, and your fear of the “unknown” does not justify your apathy.
Additionally, if one is going to argue that “voting for the lesser evil” has done nothing to protect liberty (using experience, of course, to prove the point) and thus that method should be abandoned, then the same argument and conclusion must be made about state nullification since it has done nothing to reign in federal power since 1798. If the absence of liberty and the diminishing power of the States is proof to those who reject political “mainstreams” of voting, then the same proof must be used to abandon state nullification because it has not effectively limited federal power.
Alternatively, if the argument against this analysis rests in speculation, then the same speculation must be used to uphold the method of voting for the “lesser evil.” In other words, if one argues that our conditions would be even worse had the States not nullified federal laws over the years and thus we must continue to nullify, then the same speculative argument must be used to vote for the “lesser evil” because the “lesser evil” effectively wards off the “greater evil” from taking effect, thereby preserving more liberty for more people for a longer time.
Those who argue that voting for the “lesser evil” is ruining America admit that not all methods of redress are adequate to restore liberty as fast as we are losing it. This admits that not all remedies lead to liberty, at least not at the same rate. It admits that means are important to accomplishing ends. It admits that focusing on remedies that experience shows are worthless or fruitless to withstand the bulging expansion of a forceful federal government are likened to those straightening picture frames on the walls of the Titanic.
Empathy being a trait of human nature (especially among people of common interest), some leaders in the liberty movement want to view everyone who claims to be a part of the “movement” as accomplishing good for liberty. They say, “your strength is in this area or that area, so you continue to work for liberty there…keep up the good work!” In reality, they are appeasing bad choices, and even ignorance. Sadly, these leaders deem this approach sufficient to restore liberty.
Curiously though, they care nothing about the results of those remedies as long as the remedy choices are considered “non-mainstream.” If the remedy is “mainstream” (such as voting for a “lesser evil”) then all of a sudden, these leaders point to the results of that remedy to denounce it. They use “principle” to support the actions of their friends but use experience to oppose the actions of their “enemies.”
You cannot have it both ways. You cannot accept (and even praise) the remedy choices of your friends that are ineffective while denouncing the remedy choices of your “enemies” because they are ineffective.
Appeasing “friends of liberty” for doing nothing effective does not help liberty, and ignoring Article V only prolongs educating people in what will inevitably be the case one day: America will be forced to deal with our future in a convention one way or another, whether it is an amendment convention by choice and reflection or a convention of force.
In conclusion, if nullifiers would get as excited about limiting federal power through Article V as they do through a legal construct, liberty’s revival would be well on its way—and the change would be as permanent as any remedy can be in our system of government. As long as patriots focus their time, energy and money on remedies that have proven ineffective, expect nothing but more federal encroachment. But do not blame people who vote for “lesser evils.” Blame yourself.