Nullification is an attack on the very foundation of the Constitution, and as James Madison says a "fatal inlet to anarchy":
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined. —James Madison in response to the South Carolina nullification crisis of the early 1830sNevertheless, states keep being tempted by Article 2 of the Articles of Confederation, a thoroughly failed experiment in governing, defunct now for over two centuries: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." Among states considering giving in to temptation are Wyoming, South Carolina, Kansas, Oklahoma, Alabama, and Mississippi, states which have recently introduced bills to “nullify” the Affordable Care Act and federal gun laws based on the 2nd Amendment as interpreted by the U.S. Supreme Court (SCOTUS). Most of these bills nullify future federal gun laws and threaten federal officials tasked with enforcing them with arrest and indictment on state felony charges. It’s a bit hard imagining how all that would work out. One can only imagine Wyoming officials—armed or otherwise—trying to arrest members of the 101st Airborne, much less charging them. The potential for violence is not negligible in this scenario, and an armed campaign between Wyoming and the Armed Forces of the United States would be brief, brutal, and decisive.
The historical pattern of nullification is a recurring nightmare: states unhappy with federal law and/or the Constitution of the United States have again and again invoked nullification, the specter of a states’ rights theory that died with the Articles of Confederation. So far no president, including Washington, has failed to honor his oath of office. Washington, Jackson, Lincoln, Eisenhower, Kennedy—none of them blinked when the time came to defend the Constitution. Neither will the current president. Our presidents have honored their oath, and millions of Americans have sacrificed their time, treasure, blood, and lives for this nation. And like those Americans before us, we too see one nation, not 50, whenever the Stars and Stripes is raised.
In an earlier diary, I examine the history of nullification in the 18th and 19th centuries: http://www.dailykos.com/...
In this diary I examine the history of nullification in the 20th century.
More below the golden contrail.
SCOTUS issued Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, on May 17, 1954. This decision declared all laws establishing segregated public schools to be unconstitutional, and it called for the desegregation of all schools throughout the nation. After the decision, the National Association for the Advancement of Colored People (NAACP) attempted to register black students in previously all-white schools in cities throughout the South.
In September 1957, the NAACP chose to integrate Central High School in the capital city of Arkansas. The Little Rock School Board agreed to comply with the ruling, but several segregationist councils vowed to physically block the nine black students from entering the school. Governor Orval Faubus made matters worse by deploying the Arkansas National Guard to ensure the black students were not enrolled. Eight days later, President Eisenhower reminded Faubus that he was defying a unanimous decision of the United States Supreme Court. When the black students tried to enroll again, Faubus had removed the National Guard, leaving the nine students to the whims of a violent mob of segregationists. At this point the Mayor of Little Rock, asked President Eisenhower to send federal troops to enforce integration and protect the nine students.
On September 24, President Eisenhower first removed the entire 10,000-member Arkansas National Guard from Faubus' control by federalizing it and second ordered the 101st Airborne Division of the United States Army to Little Rock. The nine black students were enrolled by the end of September.
United States 4 (Whiskey Revolution, South Carolina Tariff Nullification, Civil War, Little Rock) Nullifiers 0
In 1961, the NAACP Legal Defense and Educational Fund filed suit in the U.S. District Court, alleging that the University of Mississippi (Oxford, Mississippi) had rejected James Meredith, a former serviceman in the U.S. Air Force, solely because of the color of his skin. The case wound through hearings and court proceedings until finally the U.S. Supreme Court ruled that Meredith had the right to be admitted to the University of Mississippi and ordered the University of Mississippi to admit him. However, when Meredith tried to register on September 20, 1962, he found the entrance to the registration office blocked by Mississippi Governor Ross Barnett. President John F. Kennedy instructed U.S. Attorney General Robert Kennedy to enforce the court order and to inform Governor Barnett of the consequences of interfering with a SCOTUS order. In a statewide television broadcast, Barnett stated,
[Mississippi] will not surrender to the evil and illegal forces of tyranny ... [and] no school will be integrated in Mississippi while I am your governor.On September 28, Barnett was found guilty of civil contempt and was ordered to cease his interference with desegregation at the university or face arrest and a fine of $10,000 a day.
Two days later, Meredith was escorted onto the University of Mississippi campus by U.S. Marshals, setting off riots by white students and segregationists that resulted in the death of a student and the assassination of famous French journalist Paul Guihard. Guihard's last dispatch, filed the day he died, said
The Civil War has never ended.Finally the President called in 500 U.S. Marshals, supported by the 70th Army Engineer Combat Battalion from Ft. Campbell, Kentucky, U.S. Army military police from the 503rd Military Police Battalion, and troops from the Mississippi Army National Guard and the U.S. Border Patrol. Federal forces patrolled the university, the town, and the local area for over a year.
United States 5 Nullifiers 0
After George Wallace was elected Governor of Aabama, he took the oath of office (January 1963), standing on the gold star marking the spot where, over a hundred years before, Jefferson Davis was sworn in as provisional president of the Confederate States of America. In his inaugural speech, Wallace used the line for which he is best known:
In the name of the greatest people that have ever trod this earth, I drawWallace promised the citizens of Alabama that he would prevent the desegregation of Alabama public schools. But in 1963, three African-Americans with perfect qualifications—Vivian Malone Jones, Dave McGlathery and James Hood—applied and in early June a federal judge ordered they be admitted, and ordered Wallace not to interfer.
the line in the dust and toss the gauntlet before the feet of tyranny,
and I say segregation now, segregation tomorrow, segregation forever.
On June 11, 1963, in violation the federal court order, Wallace tried to prevent two of the students, Vivian Malone and James Hood, from registering by standing in the doorway of the university’s registration building. At that point, flanked by federal marshals, U.S. Deputy Attorney General Nicholas Katzenbach told Wallace to step aside. Wallace cut Katzenbach off and refused, instead giving a speech on States' rights. Katzenbach called President Kennedy, who federalized the Alabama National Guard and ordered General Henry Graham to command Wallace to step aside “under the orders of the President of the United States." Wallace spoke further but eventually moved before the federal marshals needed to arrest and remove him to the nearest federal holding facility. Once Wallace’s staged drama had ended, Malone and Hood were allowed to enter and register as students at the University of Alabama.
United States 6 Nullifiers 0
Perhaps we should just grit our teeth and bear it whenever right-wing politicians turn to nullification. Or perhaps we should institute a Lincoln plan, a modest proposal for state remodeling, not reconstruction. I admit it’s a stretch. Still, public discussion of such correctives might persuade leaders of a state "to [in e.e. cummings’ words] think twice before you think" (well, probably not South Carolinians). Please feel free to create your own plans.
A Lincoln Plan
(1) The governor and top officials of the state legislature of a state which attempts by extraconstitutional means to “nullify” federal law and/or the Constitution of the United States shall be removed from office. The governor and top legislative officials shall receive no compensation for their offices and shall forfeit any pensions. Within six months and under federal supervision, elections will be held for the vacated state offices. The newly elected officials shall be sworn in after taking an oath of allegiance to the United States and affirming that any extraconstitutional attempt by a state to “nullify” federal law and/or the Constitution of the United States is unconstitutional.
(2) The national guard shall be federalized and all state law enforcement officers shall be put under federal jurisdiction until the swearing in of the newly elected state officials.
(3) The governor and top officials of the state legislature shall be disqualified from holding any federal, state, or local office until two years after they have taken an oath of allegiance to the United States and affirm that any extraconstitutional attempt by a state to “nullify” federal law and/or the Constitution of the United States is unconstitutional.