Tenth Amendment Center: Open Letter to John Bolton on Nullification
Dear Mr. Bolton,
When I was young, I assumed people who went to prestigious law schools learned a great deal about the Constitution and U.S. history. As I’ve grown older, I’ve come to understand this isn’t generally the case. In fact, lawyers trained at America’s elite universities tend to be some of the most constitutionally and historically ignorant people I run across.
You reinforced this truth with recent comments about nullification you made during your interview with SiriusXM host Alex Marlow on Breitbart News Daily.
I understand that as a Republican, you have to oppose “sanctuary cities.” But I don’t really understand why you, among several other prominent Republicans including Attorney General Jeff Sessions and Rep. Tom McClintock, have to sound like Rachel Maddow in the process. All four of you dredged up the same spurious talking points on nullification. Slavery. John C. Calhoun. Confederate. blah, blah, blah.
Believe me, these assertions sound just as dumb as Republican talking points as they do as Democrat talking points.
I’m guessing you don’t really want to run around sounding like an ignoramus, so I thought I would take the opportunity to correct some of your factually dubious assertions regarding nullification.
You said that “what California is proposing, essentially, is what’s called nullification.”
Well, that’s the one thing you got right – at least in the broad sense of the word nullification. In fact, a big part of what California is doing is exactly what James Madison said states should do when the federal government commits an unwarrantable act, or even “a warrantable measure” that happens to be unpopular. The “Father of the Constitution” said “a refusal to cooperate with officers of the union,” would create impediments to federal action, “and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Madison understood the federal government would need state and local cooperation in order to effectively act, and he provided a blueprint for states follow in order to check federal actions.
We’ll get back to this particular nullification strategy in a moment, but first I want to address your historical understanding of nullification.
“That [nullification] was also proposed by South Carolina Sen. John C. Calhoun before the Civil War, to say that South Carolina and other slave states would not enforce federal law regarding slavery.”
Wrong. Wrong. Wrong.
I don’t just mean you’re maybe misinterpreting things a little bit, or that I have a slightly different take on what happened. I mean you’re 100 percent factually wrong.
Now, it is true that John C. Calhoun proposed nullification. In fact, South Carolina followed his proposal. But it had nothing to do with slavery.
Zero. Zlich. Nadda.
The “nullification crisis” was all about tariffs.
In 1828, Congress passed a tariff designed to protect the northern industrial economy, struggling to compete against low-cost imported goods. Southerners generally opposed the tariff because it raised the price of goods imported into southern states, things they could not manufacture themselves. It also indirectly hurt the southern agrarian economy by reducing cash available for the English to purchase southern cotton. Opposition proved particularly fierce in South Carolina. Many southerners dubbed it the “Tariff of Abominations.”
John C. Calhoun proposed nullifying these tariffs. It had nothing to do with enforcing federal law against slavery. This proposition doesn’t even make any sense. Slavery was the law of the land in the United States. What exactly was the South going to nullify?
Here’s the delicious irony in all of this. There were people proposing nullification to stop the enforcement of federal slave laws.
Northerners.
Yes. Abolitionists used a nullification strategy (successfully, I might add) to stop enforcement of the draconian Fugitive Slave Act of 1850. Northern states passed laws refusing to cooperate with enforcement of this act. In other words, these states refused to help federal marshals and Southern slave catchers round up runaway slaves and send them back South into bondage.
I know this story makes it a little hard for you anti-nullifiers to claim the moral high ground. Facts can be inconvenient. But yes. Harriet Tubman and William Lloyd Garrison were nullifiers.
No wonder y’all make up your own facts.
On a side-note, I noticed that you and Rachel Maddow both neglected to mention that the person who first formally articulated the principles of nullification was Thomas Jefferson. And of course, it had nothing to do with slavery. You see, in 1798, Congress passed the Alien and Sedition Acts, and President John Adams signed them into law. The federal government was arresting people for criticizing the federal government, and asserted authority to deport “aliens” (i.e.immigrants) that James Madison said, “exercises a power no where delegated to the federal government.” Jefferson wrote that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
Again, I understand that citing wild-haired John C. Calhoun as the architect of nullification works better for your political narrative. But if you’re going to invoke history to make your point, you should probably include, you know, the history.
Now, before I close, I want to circle back to Madison’s blueprint.
You said, “The idea that law enforcement at lower levels shouldn’t be required to cooperate with the feds is just unthinkable.”
But, it really isn’t unthinkable, now is it? After all, Madison thought of it in 1788. And he recommended it as a strategy to limit federal power.
And you know where else this idea of noncooperation with the federal government is completely thinkable? The Supreme Court.
In 1842, the Supreme Court codified Madison’s blueprint into federal law. In his opinion in Prigg v. Pennsylvania, Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.
It was on this basis that northern states later nullified the Fugitive Slave Act of 1850 primarily by simply refusing to cooperate with enforcement of the law.
Since that time, the Court has consistently reaffirmed this legal principle, commonly known as the anti-commandeering doctrine. In simplest terms, the Court has held that the federal government cannot force states to use their personnel or resources to enforce federal law or to implement federal programs. Printz v. U.S. serves as the cornerstone of this legal principle.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
So, not only is noncooperation with the feds thinkable, it’s been the law of the land for at least 176 years. You would think a lawyer would know this. But maybe they skipped this at Yale.
Now, I know you included a hyperbolic example of helping the FBI investigate bank robberies to drive your point home. That’s a pretty good rhetorical tactic. But really, is any state going to stop enforcing laws against robbing banks? I doubt it. Because, you know, there are also state laws against robbing banks. But here’s the thing – if they really wanted to, they could stop helping the FBI enforce those federal laws. They could just let the FBI do it themselves.
Most of California’s “sanctuary” policies follow Madison’s Federalist #46 blueprint. Now, I will grant you this: there are some questions worthy of discussion. 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 in some cases? Maybe. But if we’re going to have a rational discussion about these policies, we are going to have to get passed interjecting misleading and disingenuous history into the conversation.
Economist Murray Rothbard once said, “It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a ‘dismal science.’ But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.”
You can make the same case for history. I can understand your opposition to sanctuary cities, but your vociferous, yet totally ignorant opinion on nullification doesn’t really help you make your case. It just makes you look like you don’t know what you’re talking about. Because you don’t.
Sincerely,
Michael Maharrey
Mike Maharrey
March 27, 2018 at 03:04PM
