#1596 Ten Things on Nullification

Now, under the Articles of Confederation, the states were sovereign. It was a loose collection of confederated states. Under the constitution, the states are subordinate, but they don't lose all of their sovereignty. And that's where the mischief sort of begins. And this all began really with Thomas Jefferson, who, in 1798, appalled by the Alien and Sedition Acts, which he thought were worthy of the ninth or 10th century.

He wrote secret resolutions for Kentucky, which threatened to nullify that set of federal laws. Madison talked him a little bit down from the more extreme language, but still the Kentucky resolutions are more strident, let's say, than the Virginia resolutions, which were penned by James Madison himself. And they both expected that the rest of the country would rally to their side about this, but they didn't. Most of the country was appalled by the nullification threats and secession threats of Jefferson. Although it took a long time for people to realize that he was the author of the set that went to Kentucky.

And today there are secessionist movements around the country. They don't seem to really be very serious, but you know, you never can tell. We're in a time of almost unprecedented divisiveness in the U.S. And Texas is the state that most often invokes the idea of nullification or secession. And the federal government has sued the state of Texas over border policy, including the use of concertina wire and other very serious impediments within the Rio Grande river.

So we'll see where that heads, but the supremacy clause of the constitution seems pretty strong. Up till now, the courts have always struck down any nullification threats from any state or states in the country. It's always fun to talk to Lindsay. She's working on her index. You know, an index is a very interesting thing to do.

I've written a few of them. You know, what you do in an index is you sit down and on page one, you say that, uh, this reminds me of something that Charles Dickens wrote about in great expectations. And so then, somewhere in the index, there has to be Dickens comma, Charles. Um, maybe you have a subheading great expectations, and then bleak house and then Pickwick papers and then Dombion son or whatever. And so you go through page by page and you pull out every indexable thing.

Prior to that, what we needed was an index, and a good index is one that helps the reader get to the things that the reader might want to get to. And there has to be a logic that the index has to work for the person who's using the index anyway. So she's working on her index. And when you work on an index, you, you learn to hate your book. You learn to hate life.

You wish you'd never written it. You realize it's full of bad arguments and et cetera. And so it, it kind of clouds the brain, but then, when you're done, you think, ah, look at, I've done. I've created a, I have a 450 page book. I've given the reader all the tools she needs to find out whatever it is that she wants to look at within these hundreds of pages.

So that's where Lindsay is now. Um, so, uh, it's a, it's a, it's an exciting time because the book is the book. That's Lindsay Cherminsky. And today we're talking about the doctrine of nullification. And I hope this little excursus into the world of writing and index production has been enjoyable for you.

The clock is ticking. I'm only, I'm less than two months out now from my epic journey around this country, in the footsteps and the, in the tire tracks of John Steinbeck. And, uh, it's getting very, very, very exciting. So stay tuned to my friends and help us in any way you can fulfill our goals. Let's go to the show.

Hello everyone. And welcome to this special edition of listening to America. across from me, at least virtually, it's Dr. Lindsay Cherminsky. And today's topic is 10 things about nullification.

Nullification is a term we don't hear very much in American life, except sometimes with respect to jury nullification. I'm going to ask Lindsay to sort all that out for us. So, 10 things about nullification, and this has some implications for Mr. Thomas Jefferson, and it has implications for us today. Welcome, Lindsay.

So let's begin this way, Lindsay, 10 things about nullification. We've heard jury nullification. What's that?

And in this case, they're stepping beyond the confines of their duty, which is to sort out questions of fact and weighing in on the status of the law itself. It's discouraged heavily in the American legal system, as you might expect, but it does occur sometimes and occasionally judges welcome it. So nullification. But that's not what we're talking about today. We're talking about constitutional nullification.

And let me ask you this question, my friend, is nullification anywhere enumerated as a power of anybody in the U.

S. Constitution?

But the word nullification does not exist. Now the states can challenge a law, but they have to do so through legal means. They can challenge the constitutionality of a bill or a statute or an executive order through various courts, but there is no right to just outright nullify it in the constitution.

The Articles of Confederation, our first constitution, were a compact between sovereign states who had agreed to come together to win the war and do a few other things, but wanted to maintain as much state sovereignty as possible, but under the constitution written in 1787, one draft had, we, the people of New Jersey, New York, Pennsylvania, Delaware, and so on, but in the end, and this was Gouverneur Morris, the penman of the constitution, that paragraph was replaced with the famous preamble, we, the people of the United States. That's important in this discussion, isn't it?

They are trusting the federal government to operate on their behalf. They're not putting it in the states, who then put it, or which then put it in the federal government. It is very much the people that have the sovereignty, and that's a really important.

in the 10th Amendment, the last of the original 10 says those powers not delegated to the national government belong instead to the states and to the people. So the idea, Lindsay, was a kind of a slightly dual sovereign system that the states wouldn't be swallowed up entirely. They would still have considerable local sovereignties, but they would be in cooperation and, to a certain degree, subordinate to the new national government that was set up by the 55 constitution makers in the summer of 1787.. So this ambiguity, this idea of a dual sovereign, is an interesting experiment in America and it leads to a great deal of tension. And if you are Hamiltonian, you dislike the 10th Amendment because you think that will only create disorder and the possibilities of nuisance.

If you're Jefferson, you like the 10th Amendment because he wanted to keep the states as central to people's daily lives and the public adjustment of their lives as possible. So Jefferson leans towards the states, Hamilton leans towards the central authority. The founding fathers wrestled with these questions and they decided that they needed a strong central government that was truly sovereign, particularly with respect to foreign policy and fiscal affairs. But they wanted to say they acquiesced in the very strong demands by the states, especially southern states, that state sovereignty would not be utterly extinguished in the new constitution.

And the third branch of the national government is the judicial branch, which in article three is not particularly well-defined, but the system was meant to be self-contained. In other words, if the Congress passes a law that the president finds objectionable, he or she can veto it. If Congress feels very strongly about it, they can override the veto with a two-thirds majority in both houses. Then, if the courts think that the law is not in harmony with the constitution, they can weigh in on this themselves. But the constitution makers did not contemplate that the states would have a role in this, that the states could say, Hey, wait a minute, we don't like that new law that you just passed.

Therefore, we're unlikely to enforce it within our own borders. That was not contemplated. The idea of the supremacy clause was that in the thing, the enumerated powers of the national government, the national government is simply supreme.

We're, we're talking about nullification with Dr. Lindsay Chervinsky. This is listening to America, and we will be back in just a moment.

Welcome back to listening to America, Dr. Chervinsky, 10 things about nullification. So we have state sovereignty. Jefferson wanted them to have a large amount of it. He actually called the national government, the foreign department, but the new constitution, which he did not help to write, creates a pretty strong central national government.

And it has its own boundaries that the three branches will check and balance each other to prevent any single demagogue from taking too much power or preventing any single moment of whimsy or fanaticism to sweep through into, uh, ruinous legislation. But the constitution makers did not say, oh yeah, the states shall weigh in too from time to time.

There, there were not the same sort of limitations on speech. And there was a, I think, a good faith concern that some speech was going to provoke violence, but then it was often used for partisan means, especially by people like Timothy Pickering, who thought this was a wonderful opportunity to go after Republican newspaper presses. And this was, of course, Jeffersonian Republican newspaper presses. And initially, when the bills were passed, a lot of Southerners in particular were very concerned about the Sedition Acts. And at the same time, of course, there was a lot of funding for a new army to protect against a potential French invasion.

And so there was concern, really, all of these things should be seen as one big agenda. And there was concern that the army would be used to enforce the law and to crack down on opposition. And initially Jefferson said, give me time. It's fine. The American people will see through it.

Elections happen regularly. We will be able to fight back. This is his famous Reign of Witches letter, where he says the Reign of Witches will soon blow over. He, when some of his fellow Virginians encouraged him to think about seceding from the union, he says, no, no, no, it's much better to be in the union than to be out of it. Let's be calm.

But then, as prosecutions for the Sedition Act started to ramp up in the fall of 1798, he started to think about how to fight back against this bill in particular. And this was an unprecedented constitutional situation, because during the Revolution, when Americans had protested against certain bills, they had said that the bills had been passed without any form of representation or input by Americans. And so it was not fair for them to have to abide by laws that they had no part in passing. However, that was not true for these laws. Of course, Virginians had representation in Congress, just like Pennsylvanians, just like New Yorkers.

Most Virginians had voted against the Sedition Act, but some had voted in favor of it. And so it was a constitutionally passed measure. And there were also constitutionally approved measures for overturning it. So you could bring it to a new vote. You could have, once there were new members in Congress, they could bring petitions to reconsider it, et cetera, et cetera.

But that wasn't really sufficient for Jefferson. And so then he started to think about what were ways that could be additional measures to push back on the Sedition Act.

. It's more than that. Because of the Three-Fifths Clause, Virginia had more than its share of representation in those deliberations. that, and because of the Three-Fifths Clause in the constitution, every five enslaved people of Virginia were counted as three for the purposes of apportionment and representation. So these Southern slave states had more representatives in Congress by counting their human property, their enslaved people, on a three-fifths ratio.

So that makes it even a little bit harder to justify Jefferson's response to this, but let me make the case for Jefferson's response. Congress passes the Sedition Law, which Jefferson said was worthy of the ninth or 10th century. This is a trampling upon the first amendment of the constitution. And he realized then, as we now see too, that it wasn't done in a neutral way. Its targets were anti-federalists.

They were the Jeffersonians. They were the Southerners. That New England was in favor on the whole of these acts.

unconstitutional measures. The president, instead of vetoing it by saying this doesn't square with our idea of freedom, signs the bills. Although, as you well know, Adams was not an enthusiast for the alien and sedition laws, but he signed them. The next stop needs to be the courts. Now the Supreme Court could have said, look, this is not a proper mechanism to quiet dissent.

This doesn't really square with the first amendment to the constitution. So we're not going to uphold this, but the courts were silent. So now Jefferson says, what do you do? I mean, it's kind of almost theory. Go ahead.

Jefferson thought, no, the states have a role here, that when the national authority exceeds its bounds and nobody checks it, then it's up to the states to say, no, you are not playing by the very rules that we have established and ratified, ergo, we have no choice but to place ourselves in direct opposition to this illegal set of legislative measures. That's his theory. How do you make sense of that yourself?

We encourage others to do the same, which is essentially what Madison wanted to do. There is, we...

And then there's a third measure, which is to say, the states can say, no, we reject this. We nullify this law within our state boundaries. And for the purposes of this response, Jefferson wrote a resolution, which was eventually sent to the Kentucky legislature. Madison wrote a resolution, which was sent to the Virginia legislature. Jefferson's original resolution did have language about nullification in it.

It was removed by his colleagues, recognizing that it was going to be a little bit too radical for some, and it was better to remove that language to ensure very easy passage, which they got. The measure then went to the Virginia legislature, and this was Madison's version, which was even toned down from where, where the Kentucky version was. And then Jefferson wrote a letter to the person who was managing it in the Virginia system and said, you know, I really would like you to insert some language here. And every scholar that has researched the subject believes that that was done without Madison's knowledge, because then the draft that was...

And they did. And then the resolution passed. But that was the introduction of the language to sort of our political discourse, even though it was never actually adopted by any state legislature at that point.

I hope you'll pass this. My name must not be associated with it. It's better that this just find its way through your legislature. on its own merits. He was, of course, the sitting vice president of the United States.

So, I mean, I don't think this could be called treason, but it certainly could be called disloyalty or betrayal of his trust as a national officer of the Adams administration. A couple of things that are so interesting to me, Lindsay, first of all, as usual, Madison was the moderate and Jefferson was the radical. And Madison talked Jefferson down off many ledges in the course of his life. In this case, Jefferson put in some language on nullification that Kentucky chose not to promulgate in the final version of this. Madison played a role in that, surely, but Jefferson usually allowed himself to be talked down by James Madison.

The most surprising thing about this is that Jefferson and Madison, certainly Jefferson, believe that once they pass these protests, that the rest of the country would say, my goodness, they're right. We, the people of Connecticut, need to nullify that too. And we have Vermont, because Madison, whoever wrote those resolutions, was right and that therefore Jefferson expected other states to sign on, and the silence was deafening and the resolutions were denounced in Northern legislatures in the most vociferous terms. And so Jefferson is usually regarded as a master political strategist. In this case, he misread the country.

And I mean, right away, people understood the potential for disunion that came with this type of proposal. John Quincy Adams was in Berlin at the time and he said, he wrote a letter to William Vans Murray, who was the American minister at the Hague, and he said, I don't think that this is going to lead to disunion right now, but it's going to happen at some point. And at some point, the old dominion will have to have a reckoning with the union. And so they could see, you know, six decades before it happened, what was going to, what was going to come down the road.

Wyoming doesn't like the speed limits on federal highways. Somebody else doesn't like river policy. And if, if states just begin to say, sorry, doesn't work for us, we'll, yes, we'll, we'll, we'll follow the constitution on X and Y and Z, but on R and P we simply refuse. That's a form of disunion, in embryo, at least. And it would have made for absolute chaos if it had become a widespread policy of the United States.

It's a Republican president, a Republican Congress and a Republican court. And millions of people believe that a constitutional right, a natural right, was being taken away from women and their families. And that this was a palpable violation of the very idea of what it is to be a free people living under a rule of law. And so there is a kind of anxiety when, when the federal remedies are exhausted. And yet the, the, the legislation is out of keeping with American ideals of freedom and so on, then what do you do?

There can be an enormous amount of sorrow in the interim, right?

Um, it's been approved by the FDA for decades and it is sent through the mail most of the time so that you don't have to go into the doctor's office multiple times to, to get the, the medication. So, you know, that, that then becomes a question of if it goes through USPS, or even if it goes through FedEx or UPS, can it go into states like Texas, can it go into states like Missouri? Um, and so it's an example of, as long as you have interaction between the states, there are a lot of issues that are really hard to make purely state issues because of the cross boundary implications.

We'll be back in just a moment.

Welcome back, everyone. I'm talking to Lindsay, Lindsay Chervinsky, everyone's favorite, lots of accolades from my world. And I know you have an independent following now of people who are Lindsay-ites around the country and building your fan base. All good news, because your book is coming out later this year and we're planning some sort of an event around all of that to celebrate the second of your book. So congratulations.

I know you're working on the index right now, so you are essentially brain dead.

And so it'd be nice to be able to give a little bit of that back.

Jefferson thought he was being sort of moderate, because what's the next step after nullification? Then it is secession. You know, as he said in the declaration of independence, we should not rebel for light and transient causes, but when a long train of usurpations, having a sort of a program of oppression can be discerned, then you have to stop it. You just have to step in and do something. One thing is to take your muskets into the streets, but there's a safer thing to do.

Just saying we're Virginia and we're out. That's it. We're done. We're leaving, because this is no longer a union that supports the values of this state and its people. So he thought he was doing something that was sort of moderate, and he actually toyed with the term succession in the things that he wrote and then thought better of it.

And so it didn't come up. So let's move on to the next one. The next big moment of nullification is John C. Calhoun, 20 years after all of this. And what's going on there?

The first was the National Bank. The National Bank had been first created by Alexander Hamilton's legislation that he had proposed. It had proven to be more beneficial than I think a lot of opponents originally anticipated. It was a good source for the United States for loans when they needed to buy things that were expensive. It had actually proven to be more beneficial to more Americans than were originally planned.

One argument was that it was going to only benefit the wealthy. And it did benefit the wealthy, but it also benefited other Americans. President Jackson hated the bank, hated the bank. And in fact, he went through three whole cabinets before he could find people willing to help him take down the bank. The second issue were tariffs.

The tariffs were like they are today. When you put a tariff on a particular good, it might benefit one region, but then it can often backfire and be harmful to another. That was especially true in the 1830s and 1840s, when most of the agricultural base was in the South and the West, and most of the industrial base was in the North. If you had, for example, a tariff that helped protect the new industries in the North, it could often really harm the South, because they were trying to trade their goods to the people who were then taxed. Those were the issues they were fighting on.

The tariff was really hated, and Calhoun was objecting to this tariff and put forth the idea that states could nullify it.

We can't have states nullifying whenever they disagree, even if it's a principle disagreement with federal legislation. That was a bit surprising. From the beginning of this country, Lindsay, you get the sense that the Southern states, Georgia, South Carolina, North Carolina, to a considerable degree, Virginia, lived in sort of absolute paranoia, that somehow the national authority was going to get in the way of slavery, that they were going to forbid it or abolish it, or they were going to tax it or refuse to let more slaves be brought from Africa, that if the Northern states ever got the power they wanted, they would mess with this peculiar institution. And almost all of this in the nullification world winds up being in part about the South's insistence on protecting slavery.

A lot of that was a product of slavery, but also a lot of those things also then produced the dependence on slavery. And so often when you have a disagreement over a tariff, for example, it might be over the tariff, but to your point, it often, there are these underlying issues that they have been squabbling about for decades. And the tariff is just what the, where it kind of broke out at that particular moment. A lot of Confederate supporters and leaders actually do a very important distinction between nullification and secession. And the Confederate constitution explicitly prohibits state nullification.

And the reason is because, so, for example, Jefferson Davis explicitly said that nullification was both too strong in certain areas of a measure, because it was basically backing out of a constitutional commitment to be a part of the union, but also not strong enough because it was leaving an issue at play. And so secession was required because nullification was basically not good enough in this particular instance. And those explicit differences were embodied in the Confederate constitution. So even Jefferson Davis absolutely saw this distinction and saw the importance of this issue.

West Virginia was originally part of the state of Virginia. It requested statehood from the union because it was anti-slavery and wanted to remain in the union and did not want to go with the state to the Confederacy. One of the reasons that states like Tennessee and Kentucky were so bloody during the Civil Wars, because it was very much a civil war within the state as well as within the entire union over. different parts of the state were pro-slavery and pro-Confederacy and other parts were pro-union. And that is very much true today.

So, Austin, Houston, those are blue areas. They, I don't think, generally want to secede. On the other side, California is a great example too. Most of the population in California is on the coast. that tends to be blue, but the population that's more inland tends to be redder.

So, you know, even with any given state, it's impossible to say that one state is pro-union or anti-union because there is so much complexity.

Do you think that there's any chance that secession could happen in your lifetime?

It's the most powerful nation in the world. The dollar is incredibly powerful. We benefit from two relatively friendly neighbors and oceans as boundaries, which is a very rare position to be in. And we have a lot of interstate commerce. We have interstate cooperation.

We benefit from being in this large nation. And I think that states would very quickly realize that being on the outside of that is a very, very poor choice.

And some of the biggest revenue producers in the state, things like football, things like Mardi Gras would take a real hit because the football organizations would not be able to participate in the national championship. Traveling to Mardi Gras would become more difficult because it would be leaving the country. And so the state would very quickly go into bankruptcy.

We get your rational response that it's not a good idea. But if it happened, would you say, oh my goodness, this, you know, I can't, no, no, this mustn't happen? Or would you think, okay.

That would be short-lived. I would, you know, temper that over time. My second response would be, no. The Civil War, Lawrence Tribe, I think, was the person that coined this phrase, but, and I'm going to butcher it, but he said something roughly like, the Civil War wrote in blood that secession is not permitted. So it might not be.

And then my third response would be sorrow, because in the farewell address, Washington wrote that the biggest challenge for Americans was that they were allowing their political and their partisan identities or their emotional attachment to foreign nations to interfere with their attachment to each other. And they were forgetting that for all of their differences, they had more in common than they had that was different. And that they were better off together. They were better off in the Union than they were apart. And that was perhaps a more compelling argument in 1796 when he published it, because the Union was new.

And a lot of people still remembered what it was like to not be in the Union. But that argument holds true today. And as much as I'm sometimes annoyed with a lot of my fellow Americans, I do believe that we still have more in common than we have different. And we are better off as one than we would be as multiple. I don't know how many times we need to have a national crisis to prove that and to remember that.

And it would make me so very sad and a little angry, as answer one and two indicated, that that history lesson, that that civics lesson, that that sort of national identity had not been taught or had not sunk in.

They could go it alone. They could become the Republic of Texas and enter into a kind of a Brexit arrangement with the EU, with the United States, and say, sure, we'll keep the interstate highways open and we'll allow safe passage for people. But don't you be bringing those anti, those abortion pills into our state. Be hard to administer those parts that they wanted to maintain sovereignty over and the things that they would not want to lose. For example, they wouldn't want to lose, I don't think, U.S.

military bases in Texas just for the revenue alone. And they're certainly not in a position to buy them from the government of the United States.

But I think the downstream implications for that decision, most people don't think through because they're more focused on the culture, war issues as opposed to the interconnected nature of our 50 states.

They tend to be pretty much in favor of the president having unilateral authority over a lot of things, especially border policy. And so I'm surprised that this is as much of an ongoing issue as it is.

We'll be interested to see what they would do with it. But I do think that as we get more and more divided and partisan and angry, and mutually suspicious and willing to call the other side an enemy to America, that we're going to see more of this, don't you?

I suspect that a lot of states would not abide by that. So I think those are a couple of areas in which it's likely to be front and center in the next several years.

John Adams. We have a long list of other subjects we're going to address in our 10 Things series, and we hope that people around the country will send in their suggestions too. So thank you all. To all of you, we'll see you next week for another important edition of Listening to America.