ECO 481:
Public Choice Theory
Week 13:
Nullification
Dr. Dennis Foster
Constitutionalism
• Government’s authority derives from the
people.
• Limits to government are implicit or spelled out
in a constitutional document.
• U.S. government one of “limited and
enumerated powers.”
• "This government is acknowledged by all, to be one of enumerated
powers. The principle, that it can exercise only the powers granted
to it, would seem too apparent . . . that principle is now universally
admitted."
Article 1, Section 8
• Congress shall have the power to . . .
• Collect taxes.
• Provide for the common Defence.
• Regulate commerce.
• Coin money
• Establish Post Offices.
• Declare War.
Nullification - Basic Issues
• Do politicians even accept the idea of a
Are you
limited government?
serious?
• Electoral approach to limiting
has been a failure.
Are you
government
serious?
I think we should just
trust our president in
every decision he
makes and should just
support that, you know,
and be faithful in what
happens.
• Can we trust the federal courts in this matter?
•
In questions of …
power, then, let no
Should the federal
government
more be heard
of
confidenceon
in man,
but
have a monopoly
deciding
bind him down from
constitutional
questions?
mischief
by the chains
of the Constitution.
Nullification - Marijuana
• Gonzales v. Raich;
ruling of 9th Circuit Court:
“Federal law does not recognize a fundamental right
to use medical marijuana prescribed by a licensed
physician to alleviate excruciating pain and human
suffering.”
• Spillover effects? --Alabama/Mississippi/LA
• Supreme Court & Thomas dissent.
Nullification:
In its fair and
What the Constitutionconsistent
Says
meaning,
• General welfare clause
• What’s the point of listing
[the general welfare
clause] cannot
enlarge the
enumerated powers
powers? [Madison]
vested in
Congress.
• Does Congress promote “general” welfare?
• Commerce clause
• Making commerce “regular.”
• Contortions on gun-free school zones.
• Necessary and proper clause
• To build the buildings, need to order lumber.
Nullification:
What the Constitution Says
• 10th Amendment as a reinforcement of
federal limits.
• Why was that necessary?
• A “living” constitution is not a constitution.
• How can it “shackle” politicians?
• The Jeffersonian “rightful remedy” of
state nullification or “interposition.”
• It is the duty of the state!
Nullification - History
• Historical uses:
--Alien & Sedition Acts
--Embargoes
--”Tariff of Abominations”
--Conscription
--Enlistment of minors
--Internal improvements
--Fugitive Slave Act
--Use of state militia
--Second Bank of the U.S.
Nullification:
Running out of remedies
• “National” vs. “compact” theory of Union.
• How does the U.S. get bigger?
• What does “more perfect union” refer to?
• The degeneration into the “modern state.”
• The 17th Amendment as a crucial blow.
• Is constitutional change really possible?
Appendix:
The Nullification Debate
Comes to Flagstaff
Spring 2011
Nullification is serious business – it
was a cause of the U.S. Civil War
Ann Heitland 2/13/2011
The nullification movement would be laughable if
those involved were not so deadly serious...
The U.S. Constitution contains the Supremacy Clause
(Art. 4, No. 2) for a reason: The Founders of our nation
had just lived through a decade of government under
the Articles of Confederation, which gave power to
states to ignore most federal laws. That didn't work, so
the Founders made federal law supreme…
[W]e fought a bloody Civil War over the enforcement of
federal law by an unpopular president (Lincoln) and
the South's claims to "state's rights."
States empowered to curtail
federal power
Dennis Foster 2/20/2011
How do you control a federal government that
has an insatiable appetite…? You craft a constitution
that limits its powers…
The principle of nullification was most often used by
northern states, but more famously by South Carolina
in 1840 to oppose crushing federal tariffs. That
standoff led to a compromise on these tariffs, and not
to the Civil War as some have suggested.
Today, there are two de facto applications of the
nullification principle at work. The Real ID Act is the
law of the land … [and] marijuana possession is still a
federal crime.
Nullification given voice at NAU
4/08/2011 p. 1
For those familiar with the principle of state
nullification, it might conjure up thoughts of the Civil
War … [b]ut New York Times bestselling author
Thomas Woods told an audience … at Cline Library
on Wednesday that those ideas are unfounded.
The idea of nullification dates back to 1798, when
Thomas Jefferson tried to use it to get rid of the Alien
and Sedition Acts -- a series of bills that, among other
things, made it illegal to criticize the president or
Congress.
Foster said … whether or not people agreed with that
assessment, "the university campus is still a place for
us to gather and debate the issues of our time."
Civil War should have ended
nullification
Bob James 4/22/2011
Thomas Woods was invited to air his views and discuss
his book on nullification in the NAU Cline Library...
Both Davis and Calhoun were utterly destroyed by
Henry Clay and Daniel Webster in debate after debate.
Their ideas are as bankrupt now as they were shown to
be then.
Woods' views that the Constitution is dead and the
separate states should ultimately go their own way was
treason then and smacks of treason now.
More than 600,000 Americans died in [the Civil War]
over slavery and the concept of nullification and
interposition.
ECO 481:
Public Choice Theory
Week 13:
Nullification
Dr. Dennis Foster