Tenth Amendment Center: A History Lesson on Nullification for Jeff Sessions and Tom McClintock

From Tenth Amendment Center

...from Tenth Amendment Center

Opponents of the immigration sanctuary movement have taken to denouncing these efforts as “nullification.” But in so-doing, they often get the history completely wrong.

Under the provocative headline “The Administration and Nullifying Vermont,” the Memphis Daily Eagle, in its lead editorial for December 18, 1850, reported on the Vermont Habeas Corpus Act, a bill to undermine enforcement of the Federal Fugitive Slave Act.

The editors noted that President Fillmore and the entire Cabinet were “determined to enforce the fugitive slave law in Vermont … if it required the whole military force of the United States to do it.”

Vermont wasn’t alone in resisting the federal law intended to expedite and secure the capture of “fugitive slaves” and return them to bondage in the South. In fact South Carolina’s official Declaration of Causes for secession cited Northern “nullification” of the federal Fugitive Slave Act as its primary reason for leaving the Union. The South Carolina secessionists wrote, in part:

“The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them.”

Official secession declarations in Mississippi and Texas also protested nullification of federal slavery laws by Northern states.

Nullification was first formalized as a strategic approach by Thomas Jefferson in 1798. In response to the hated Alien and Sedition Acts, Jefferson wrote, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits…”

However, the idea of resisting government with these principles didn’t begin with Jefferson.

Responding to the Stamp Act, Patrick Henry’s Virginia Resolves of 1765 foreshadowed Jeffersonian nullification by declaring that Virginians were not “bound to yield obedience” to any tax law or ordinance enacted by the far-off British government instead of their own colonial general assembly.

While most popular history of opposition to the Stamp Act focuses on civil disobedience and popular resistance from the likes of Samuel Adams and the Sons of Liberty, government officials also defied it. For example, Peter Randolph, the surveyor general of Virginia, advised all customs collectors to clear arriving ships even if they didn’t have stamped paper as required by the Act.

This combination of individual and colonial government opposition led noted libertarian economist and historian Murray Rothbard to refer to it as “the people’s nullification of the Stamp Act.”

This history is far different from the narrative being pushed in some quarters today.

Ignoring the fact that slavery was the supreme law of the land, and Southern states didn’t need to nullify anything to maintain the institution, Attorney General Jeff Sessions compared three California immigration “sanctuary state” laws to actions of the slave-holding South.

“There is no nullification. There is no secession,” he said. “Federal law is ‘the supreme law of the land.’ I would invite any doubters to go to Gettysburg, to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.”

Not to be outdone, Rep. Tom McClintock (R-Calif.) claimed that nullification was a tool that “began with tariff disputes” in 1832, completely ignoring that Jefferson advised it in 1798.

Mr. McClintock also suggested that California “sanctuary state” supporters are just like “their Confederate predecessors,” even though the seceding states were officially opposed to Northern nullification of federal slavery laws.

When it comes to California’s sanctuary policies, there are certainly things worthy of debate.

For example, does the state’s attempt to withdraw resources from the enforcement of federal immigration law, a policy backed by 175 years of Supreme Court jurisprudence under the anti-commandeering doctrine, cross the line into active interference with federal agents?

Unfortunately, it’s difficult to have a rational policy debate when people like Mr. Sessions and Mr. McClintock inject misleading history into the conversation.

NOTE: This article was first submitted as an op-ed to The Washington Examiner, where Mr. McClintock’s statements were published. No response was received from the publication.

Michael Boldin
March 21, 2018 at 11:04PM