Secession seems to be one of the closest to unaninmous ideas the founding fathers held, of course with a few dissents. Secession is also pretty well documented as being the general opinion of the time of the constitution’s convention and ratification. Now as far as nullification goes I am uncertain about it’s source.
From what I have read from Calhoun it seems like it was intended to be a state level veto upon acts of the federal congress while the federal government was protected within the states borders by the federal judiciary, who could strike down Bills of Attainder, trade restrictions and other legislation originating from the state level. So the Federal government and the State governments had effective veto powers over each other. At least that is what the South Carolina Exposition and Protest seems to state.
But I am having a hard time finding sources on state nullification around the time of the constitution’s ratification. I am aware of the Kentucky and Virginia Resolutions but to say that points to the constitutionality of nullification would be the same as saying the first national bank was constitutional because some founding fathers supported it. Of course nullification does seem more in the spirit of the American revolution than a centralized national bank but I am just looking for more hard proof than that. I also have read that the passage by Hamilton in the Federalist Papers seems to imply secession more than Nullification.
I am confused by this and am wondering if anyone could help clarify this for me and/or point me to some other sources. I would appreciate it.
I don’t know about any history of nullification (though I do believe it must exist somewhere), but it is only logical to believe that if a state had the right to secede, that they would also have the right to nullify laws. This would be the implication that I receive when I read the 10th Amendment.
Only because the states have refused to exercise their power. The federal government has no real authority, except that which is given to it. People argue back and forth about how to reduce the size of the federal government and its illegal authority but the answer is simple: Take it away. The way the US is constructed all power the federal government has, whether legal or illegal, constitutional or unconstitutional, comes from the states and the people, respectively. Take for example, the REAL ID Act. Currently 14 states have refused to comply with that law citing a number of different reasons from cost to security to constitutionality. Now, what is the state of that law if say 25 of the states said, “No, we aren’t going to comply with that law.” You now have half of the states saying they will not comply with that law. Accordingly you have half of the country unable to board airplanes, go into federal buildings, etc., etc. because their states have refused to abide by that law. What options does the federal government have? They can either rescind the law or try to enforce it with federal troops. Those aren’t very good options. They can also try to withhold federal funds from the states but that probably wouldn’t be done either (though it would be nice if they applied to withheld funds to the national debt). And if the federal government withheld federal funds then the states could simply deny those funds to the federal government anyway! It would only take 50% of the states saying, “Yeah, you don’t have to pay income taxes anymore” for the income tax to die and go away.
The states hold all of the power and always have. If they’d simply man up and grow a pair and exercise that power a lot of our problems could be solved in short order.
The reasons the states dont excercise their rights is the federal government may not have authority, but they have money. Whenever states try to exercise their 10th ammendment right on something the federal government feels strongly about, the federal government will threaten to stop giving the state federal money. An example is the drinking age. Many states kept it at 18, but the federal government wanted it to be 21, so they said that they would not give any money to the states that did not change it to 21. The federal government may not have constitutional authority over the states, but they find ways around that and do exercise authority over states consistently.
So what? If money is the issue than stop giving it to the federal government. States merely have to deny the federal government access to the funds. You can do it several ways. One way is for each of the states to simply rescind their support of the 16th amendment and tell their citizens to no longer pay income taxes. Companies that collect such taxes would face penalties from the state government. If half of the workers in this country stopped paying income taxes because half of the states said you don’t have to anymore then what is the federal government going to do? Go to war? Where are they going to get the money? Where would be the support for such an action? States could also institute their own silver certificate programs stating that the Federal Reserve is unconstitutional (which it is). Since there is no lawful currency in the US the states themselves will issue constitutional silver backed notes and only accept those in payment of taxes. No Federal Reserve Notes would be accepted to pay sales tax, property taxes, state income taxes, etc. This would force local businesses to start paying their workers in silver certificates and since only Federal Reserve notes can be used to pay federal taxes, and since no one has them anymore, the Federal Reserve, their currency and the federal government would come under direct threat of extinction. The biggest problem will come from federal employees who can no longer pay their property taxes because they are paid in Federal Reserve notes, not state issued silver certificates.
Not only that if half of the states simply refused to go along with anything it doesn’t matter how much money the federal government threatens to withhold. Without the support of the state governments the federal government cannot act.
The state governments are, themselves, states. Their legitimacy rests upon the myth of hegemony as much as the Federal Government’s. Should they start challenging Federal hegemony by nullifying laws, that opens the door to their own laws being challenged by local authorities, and so on. The whole system would collapse.
They are all in this together, whether they like each other or not.
It may not be a bad thing for the people, but it would be horrific for the states is the point of what he said. If the states took the federal government’s power away, then that would mean that the cities could take the states’ powers away, which would be good for federalism and freedom, but bad for the states.
If this is truely inevitiable then why didn’t it happen to the colonies after they seceded from the British Empire? Not one state fell prey to dismemberment by further secession (although Vermont did secede from New York during the war). Further secession was considered a real possibility by the founders at the start of the republic. The constitution contains provisions for creating new states by dividing existing states (though, importantly, it has no provisions for adding new territory - remember that when someone says the constitution doesn’t sanction secession). Further secessions didn’t occur though because there was no popular imperative for them. Left to their own devices people will make arrangements that suit them at the time.
Secession does not lead to chaos. Singapore seceded from Malaysia. Norway seceded from Sweden. Belgium seceded from The Netherlands. And fifteen republics seceded from the USSR. None of these were followed by further secessions leading to breakup (though admittedly there are still some disputed territories in the former USSR).
I don’t think nullification is a radical idea. The Founders had a specific role in mind for the federal government. It was to be a limited national government with limited power. All the power was suppose to reside with the states and the people, respectively. This is confirmed by the 10th amendment: “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I believe the Founders could see a future wherein the federal government might try to grab power not delegated to it by the constitution, which is why the right to bare arms was secured in the constitution as well as the 10th amendment. In fact every one of the amendments that make up the Bill of Rights were put there for just this reason.
Nullification has become a “radical” idea but it really isn’t. If the federal government passes a law that has no real constitutional basis then there are only two options that can be pursued. 1) The states can allow it and enforce, thus giving their consent to the law or 2) they can refuse to abide by that law citing constitutional issues and rights belonging to the states. If they refuse to go along with that law then they have in effect nullified that law. It is within the rights of every state to either secede or nullify laws which are unconstitutional.
I sometimes find myself fantasizing about the rather delightful possibility of “further secessions leading to breakup.” I agree that “secession does not lead to chaos,” even if continued to the level of individuals.