Mark Pulliam has been engaging in a stimulating debate with Brion McClanahan, Bill Watkins, Tom Woods and, by now, possibly others about whether the Supremacy Clause in Article Six of the Constitution overrides the power of states to nullify federal laws. For those who may not recall that clause, please see below:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The same article requires all government officials to swear or (originally in the case of Quakers) affirm that they will faithfully uphold the Constitution as the foundational legal document of the American Union.

According to Pulliam, states lack the constitutional authority to nullify federal laws they find disagreeable, although they are allowed to practice “civic engagement” in expressing their opposition. His states-rights opponents by contrast believe that state governments do have the right to judge the constitutionality of federal laws. Therefore, when Thomas Jefferson and James Madison prepared the Virginia and Kentucky Resolutions in 1798 and 1799, to express opposition to President John Adams’s Alien and Sedition Acts, they were using an instrument of resistance to an unconstitutional law that was consistent with our founding document. There was nothing extralegal about what these founding fathers did, according to Watkins. Indeed, one of the authors of the resolutions was Madison, who drafted much of the Constitution and who wrote in its defense parts of the Federalist.

Moreover, the 10th Amendment reserves power to “the states respectively or the people” which is not specifically delegated to the federal government. Pulliam’s critics believe this residual power includes the right to nullify federal laws and directives that elected state governments deem unconstitutional. This is inherent in the system of divided and distributed powers that the framers intended to build into their work.

But according to Pulliam, that right to nullification was never accepted as consistent with the Constitution, outside of those limited sectional interests that promoted it during the early republic. Nullification clearly violated the legal supremacy that the Constitution explicitly conceded to the federal government that it was bringing into existence.  In 1832, when the state of South Carlina tried to nullify the “tariff of abominations” imposed by Congress, President Andrew Jackson, who was himself a Southerner, rightly threatened to send the federal army to force South Carolinians to pay the tariff.  Pulliam notes that by 1800, even Madison had come to look at the resolutions that he had helped draft as a mere intellectual exercise.

Thereupon, Congress in March 1833 obligingly passed the “Force Bill,” which authorized the use of the military, if necessary, to collect the approved tariffs. By then the doctrine of nullification had lost its credibility among most Americans as a means of resisting uncongenial federal laws. Providing such laws were passed by constitutionally authorized federal bodies, it was widely understood that states were required to follow them. 

Pulliam does not directly engage with the right of secession, which seems to me to be a more complicated issue. States, or state conventions, did agree to enter the union in several cases with the proviso that they should be able to leave if that relationship didn’t suit them. Even more interesting is the question of whether any of the states would have joined if its citizens had known that they would face a devastating military invasion if they then tried to leave. In New York and several other states, the margin of victory for the ratifying side was razor thin. Rhode Island didn’t agree to join the Union until 1791, taking four years to do so.

Alas most of this rich debate may have already assumed an academic and even antiquarian aspect. Although Pulliam seems, in my view, to have the edge in this debate, what he’s defending may no longer be our framework of government. We now live under an administrative state in which state governments are regional branches of an overweening bureaucratic monolith with ideologically homogeneous personnel. Our by now mostly leftist presidents or their unelected advisors impose their will through executive orders.

Providing the media, which is our state church, defends this increasingly unrestricted use of executive power, our leaders don’t have to worry about an 18^th century document which has less and less to do with their actual exercise of power. In any case there are lots of law professors from prestigious universities who will happily defend any power grab by a woke leftist federal or state government.  If Kamala Harris is elected by our media as our next president, the Supreme Court will likely be packed unless that body agrees to rubber stamp what the reigning left wants. I’ve no idea what civic engagement even means in this post-constitutional regime. It has become a hopelessly obsolete concept.

It may be, however, that the American constitutional government was destined to go even from the beginning in the direction of what Lincoln and other Republicans of his era called “consolidated” government. (Defenders of the earlier Articles of Confederation may have been right when they suspected this would happen if we ratified the Constitution.) Much of the real power exercised under the new order, like the national military and the largest tax revenues (at the beginning mostly in the form of tariffs), went to the federal government. The plan for a consolidated state was present from the outset with the affirmation of a ruling document intended to centralize power. While strict constructionists and states rightists could delay that outcome, they could not hold it back indefinitely.

 I for my part sympathize with the Federalists who were hoping to build a strong American nation states, which would take its places among the great powers while being able to protect its citizens and advance their commercial interests. But I also recognize, particularly after the costly Southern attempt at secession, that the states were reduced to creatures of an expanding central government. In the 20^th century that government morphed gradually into an administrative regime that all our readers properly loathe. At this point whatever the original design and intent of the Constitution may have been, is less and less relevant.

Although I incline toward Pulliam’s view of both Article Six and the nullification doctrine, I am less impressed by his concern that any attempt right now to apply nullification would sow “disunity” in our society. From where I stand, this country may be irreparably divided on every major cultural and political issue. The differences that caused a sectional war in 1861 seem trivial by comparison to what now divides this country. Nothing in 1861 could compare to the difference between, on the one side, those who believe in gender fluidity and having the government take away children from unwilling parents to alter their sex and those who, on the other side, are disgusted by what our administrative state is doing. What about the chasm separating those Americans who are cheering on America’s invasion by untold millions of illegals, including terrorists, and those who think we should stop this disaster?

 It is not Pulliam but his states’ rights opponents who grasp the desperation of our historical situation. We are tasked with finding some way of protecting ourselves from concentrated power in the hands of power-hungry and often unhinged ideologues. Moreover, there is nothing that the isolated advocates of nullification can do to add to the disunity that the authors of our anarcho-tyranny have not already achieved.

 The question then becomes what means are the best suited to resist our present political masters.  I doubt that reviving the doctrine of nullification will cut any ice here. This proposed solution may be on par with getting the Pope to place an interdict on a rebellious land. It just won’t work given the age and circumstances in which we find ourselves. It has also been discredited for the compelling reasons that Pulliam lists.

What might have some effect in allowing our side to survive is something more practical, namely moving population into deep red areas and then finding some way to thwart the federal government in its attempt to “reeducate” us, without doing anything as provocative as seceding. A more cataclysmic effort at separation was tried during the Late Unpleasantness, and we know where that heroic adventure went. But my own plan is a topic for another day.