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My Turn: What is nullification?

Posted: January 22, 2013 - 1:03am

I will answer the question first by saying what it is not.

Nullification is not: secession, unconstitutional, untried or ineffective; for those who may be a little more familiar with American history and have remembered something from their professors or history books, it is not racist or uniquely the possession of the antebellum South.

The fact is, nullification has a considerable history in the north before the Civil War. The refusal of northern states to cooperate with the federal fugitive slave laws constituted a de facto nullification.

It has also been used recently, when some 24 states resisted the implementation of the Real ID Act in 2008; when Montana refused to abide by federal law regarding guns manufactured within their own state. States are adopting nullification in defiance of federal drug laws and by establishing “sanctuary cities” for illegal aliens. The point is, the federal power is very weak when states refuse to cooperate.

To define: Nullification is the action of a state, either officially or through its failure to cooperate, to regard a federal law as unconstitutional. To say that nullification is an unconstitutional and rebellious act presupposes that all actions from the federal government are automatically in conformity with the Constitution, and that the compact between the states and the federal government is to demand obedience from the states but never restraint from Washington.

Historically, nullification was first proposed simultaneously by both Thomas Jefferson and James Madison, way back in 1798, when the Sedition Act created an overt and blatant attack on the First Amendment. Jefferson and Madison convinced both Virginia and Kentucky to defy the law and to use the power of the local states to protect its citizens from arrest and confiscation of property — in this case, newspaper editors and their printing presses that did not like President John Adams or his Federalist Party.

Apologists for federal, nationalized power are quick to declare that the Supreme Court, not the states, is the ultimate arbiter of what is and is not unconstitutional. Permitting the states such power, they contend, will create a constitutional crisis.

Without getting into the overthrow of the Constitution that took place in 1803 with the noted case of Marbury v. Madison, to this argument we say that we already have a “constitutional crisis”, that we’ve been living in one all of our lives, and it is the federal power that has created it; that the people and the states, and not the courts, are the authors and arbiters of the Constitution, as defined not only in its Preamble, but also in the ratification process. And while no state holds a lock on defining constitutionality, neither do the courts, which often reverse their increasingly absurd and convoluted opinions. Alaskans must ask their state legislators to stand in the breach for us. Don Young, Lisa Murkowski and Mark Begich will do nothing effective in these matters.

All politics is local. The Legislature and governor must realize that gas lines, roads, harbors, permanent funds and other legitimately important aspects of their legislative session, can no longer be their first priority. They too take an oath to defend the Constitution.

It is not an oath to blindly defend the federal government.

In the coming debate, pay little heed to the court historians, nationalists and socialists who cherry-pick American history, or cite nullification as historically unsound or rebellious. It is nonsense. Nullification seeks to restore the Constitution, not violate it.

• Bird, of Kenai, has been teaching the social sciences for 40 years, holds an M.S. degree in History and has twice been a candidate for the U.S. Senate.

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