Tuesday, January 25, 2011


We Fought a War Over This... As Idaho and a half dozen other states prepare legislation to attempt to "nullify" the federal health care law, including apparently sanctions against anyone trying to implement the law, it may be worth remembering that 150 years ago this week the future President of the Confederacy stood on the floor of the United States Senate and spoke his farewells. A good part of Sen. Jefferson Davis' speech on Jan. 21, 1861 was devoted to the doctrine of nullification. His home state of Mississippi was leaving the Union, Davis said, and, in his mind at least, it naturally followed that he had to leave the Senate of the United States. Davis explained his theory of his duties as a citizen and made it clear that his allegiance to Ole Miss came before his country. "If I had thought that Mississippi was acting without sufficient provocation," he said, "or without an existing necessity, I should still, under my theory of the Government, because of my allegiance to the State of which I am a citizen, have been bound by her action." My state right or wrong, apparently. Davis went on at some length to draw a distinction between what he and Mississippi were doing - leaving the Union - and the theory, widely advanced in the 1830's by John C. Calhoun, of nullification. "Nullification and secession, so often confounded, are, indeed, antagonistic principles," Davis said. "Nullification is a remedy which it is sought to apply within the Union, against the agent of the States. It is only to be justified when the agent has violated his constitutional obligations, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other states of the Union for a decision; but, when the States themselves and when the people of the States have so acted as to convince us that they will not regard our constitutional rights, then, and then for the first time, arises the doctrine of secession in its practical application." In his somewhat tortured assessment of nationhood, Davis explained what Calhoun was trying to do by advocating nullification, or as he described it a state "assuming to judge for itself." "It was because of [Calhoun's] deep-seated attachment to the Union - his determination to find some remedy for existing ills short of a severance of the ties which bound South Carolina to the other States - that Mr. Calhoun advocated the doctrine of nullification, which he proclaimed to be peaceful, to be within the limits of State power, not to disturb the Union, but only to be a means of bringing the agent before the tribunal of the States for their judgement. "Secession belongs to a different class of remedies. It is to be justified upon the basis that the states are sovereign. There was a time when none denied it. I hope the time may come again when a better comprehension of the theory of our Government, and the inalienable rights of the people of the States, will prevent any one from denying that each State is a sovereign, and thus may reclaim the grants which it has made to any agent whomsoever." In other words, disunion in the mind of Jefferson Davis was a logical follow on to nullification for a sovereign state. The trouble with Idaho's approach to this fundamental Constitutional guestion is that it neglects a good slice of the last 150 years of American history; those years since Davis made his passionate defense of state's rights. Our ancestors fought a bloody and protracted Civil War to resolve these very questions. As a result, the United States became a singular nation, as the great historian Shelby Foote loved to point out. Prior to Lee's surrender to Grant in 1865, it was common to refer to the "United States are." But our history and our courts have consistently held since that the "United States is." Still, every few years nullification comes roaring back. During the civil rights era, ten different southern states sought to nullify the historic 1954 Brown v. Board of Education decision of the U.S. Supreme Court. The Court ultimately ruled in 1958 in Cooper v. Aaron that the Brown ruling, ending segregation, could "neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation." Idaho's foremost Constitutional scholar, Dr. David Adler, recently told the Associated Press that nullification proponents are conveniently overlooking a lot of our history. "The premise of their position and the reasoning behind it are severely flawed and have no support in our Constitutional architecture," Adler said. In their zeal to overturn an act of Congress, the proponents of nullification cite, as Jefferson Davis did on the brink of the Civil War, the "high and solemn motive of defending and protecting the rights we inherited," not to mention the wisdom of Jefferson and Madison. Funny, they rarely mention that old fire breather, Calhoun. Through a terrible Civil War and on through the long and continuing struggle for civil rights, the United States gradually and imperfectly became one country of many states. Through elections and court cases, debate and discourse, we have arrived at a federal government that makes laws and attempts, not always ably, to apply them fairly to all the people. If folks don't like those laws, they do have recourse - legal recourse. They can sue in the courts, as Idaho has done over the health care legislation, or they can have an election to change the Congress. Neither available legal approach, historically or Constitutionally, sanctions nullification. Maybe that is so because wise leaders, at least since Jefferson Davis, have been able to see where such a doctrine logically can lead. The great Supreme Court Justice Felix Frankfurter wrote a concurring opinion in Aaron more than 50 years ago and captured the essence of what is at sake in preserving our federal system. "Lincoln's appeal to 'the better angels of our nature' failed to avert a fratricidal war," Frankfurter wrote in 1958. "But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable."