Resistance Is Not Futile: Forgotten Lessons from the Nullification Crisis

Even as calls for nullification of proposed federal health care mandates have intensified on the state level, an almost hysterical effort has arisen to discredit such measures, and paint them as part of an obsolete theory with no bearing on modern politics.

Regardless of its logical descent from our most basic founding principle, that governments derive their just powers from the consent of the governed, nullification simply doesn’t work, critics say.

Or does it?

While it’s true that our system of checks and balances has been weakened substantially over the years, federalism itself has not. Divided sovereignty remains as viable a structure of government as it was the day our Constitution was ratified.

Perhaps a better question is: Can nullification succeed peacefully?

Of course! It already has. For proof, one need look no further than the truth behind a favorite parable of establishment statists, the Nullification Crisis of 1832-33.

Over the years, that crucial victory for the sovereign states has been converted into a cautionary tale by those who wish to discourage taxpayers from ever questioning their federal masters. So distorted is the history that a recent article on modern nullification efforts in the Nashville City Paper declared

In the Nullification Crisis of the 1830s, South Carolina passed a law nullifying federal tariffs, but the state backed down after President Andrew Jackson sent Navy warships to the Charleston harbor.

That sure sounds like the story most of us learned in school. The only problem is it never happened.

After nullifying the so-called Tariff of Abominations in late 1832, the citizens of South Carolina began making serious preparations to defend themselves with deadly force against any attempt by federal agents to collect the hated tax. What followed was a tense standoff between President Jackson and a relatively small group of determined citizens, that could easily have resulted in secession or war.

But those citizens refused to be intimidated by Jackson’s repeated threats of violence, and they certainly didn’t surrender to warships in Charleston harbor.

As Wikipedia admits, it was not until the end of February 1833, when “both a Force Bill, authorizing the President to use military force against South Carolina, and a new negotiated tariff satisfactory to South Carolina [emphasis added] were passed by Congress,” that “the South Carolina convention reconvened and repealed its Nullification Ordinance.” From that point on, right up until the War Between the States, the tariff rate declined steadily.

In other words, after putting the federal government on notice that they were prepared to defend their sovereignty, with force if necessary, the people of South Carolina agreed to abide by a new “negotiated tariff,” that they felt was fair, rather than fight a war or leave the Union; neither of which they wanted to do in the first place. A clear victory for nullification, and for peace.

In fact, the entire episode is more or less a perfect demonstration of how robust federalism and divided sovereignty once protected liberty within our voluntary Union, by keeping the ambitions of the central government in check.

So why the modern spin on this event as some kind of heroic, unilateral militarism by President Jackson, and a watershed moment for centralization? Well, for one, that interpretation fits with what statists would have us all believe anyway: that there is no force on Earth (including public opinion) capable of resisting orders from the national government.

It also makes for a neat segue into the conflict that erupted 30 years later along the same fault lines of federal versus state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery and the antebellum South. At least in the eyes of an historically ignorant public.

Yet, from the Fugitive Slave Act to REAL ID, American history is replete with examples of states successfully asserting their sovereignty in constitutional disputes with the federal government. And there is every reason to believe that some will do so again with regard to health care, should it prove necessary.

If the proposed federal mandates are so unpopular in any given state that a majority of its people support legislation or a state constitutional amendment to nullify them, that should be a clear indicator to President Obama and Congress that the governed have withdrawn their consent. Any attempt to assert federal power in the face of such opposition will inevitably be seen by the citizens of those states as illegitimate and unjust.

At that point, it will be up to those in Washington to decide whether they want to respect the natural laws on which our nation was founded, or whether they would prefer to wager their lust for power against the full electoral fury of the sovereign people’s wrath.

A version of this article was originally published at the TenthAmendmentCenter.com