Michael C. Dorf

Nullification, Secession, and Guns Show Constitutional Meaning is Never Settled

By MICHAEL C. DORF
Wednesday, February 24, 2010

Late last year, it appeared that Congress would enact healthcare reform legislation that would include an individual mandate requiring uninsured Americans to purchase health insurance. In response, some opponents of the legislation contended that it was unconstitutional. I wrote two columns on the topic for this site, one rejecting the libertarian objection to the proposed individual mandate, and another rejecting the federalism objection to it. Other scholars wrote similar analyses, many of which were cited by Senator Max Baucus in response to the doubters.

Even though healthcare-reform legislation appears to be stalled for now, the movement against the individual mandate continues, and the constitutional objection is still frequently raised. Judging by the email I have received, and by my perusal of claims being made on the air and online, the critics simply do not care that Supreme Court precedents going back nearly two centuries support the constitutionality of an individual mandate. They believe that it is unconstitutional anyway.

Critics say some things that would be laughed out of the Supreme Court. For instance, they make such claims as "The Constitution says nothing about health care or an individual mandate." That is true, but plainly unimportant to the constitutional analysis. The Constitution contains no express language authorizing the federal government to charter a bank, to organize an air force, or to protect the natural environment. Yet all of these functions, and many more, have been readily accommodated under the longstanding principle that the government has implied, as well as express, powers.

To the critics, however, that response misses the point. Many of them believe that, in the words of a recently released small-government manifesto, "the change we urgently need . . . is not movement away from but toward our founding principles." They espouse a view of federal power that was rejected by George Washington in the Eighteenth Century and by the Supreme Court in the early Nineteenth Century.

Does this mean that the critics are wrong? Not necessarily. As I explain in this column, the meaning of the Constitution is never finally settled. Even long-lasting resolutions of particular controversies can be re-opened when the People are moved to action.

Nullification: The Suggestion that States Can Void a Federal Individual Mandate

Opponents of the proposed individual mandate have not been content to challenge its constitutionality in the court of public opinion. To the contrary, legislators in a majority of states have proposed state constitutional amendments that would actually forbid the adoption or enforcement of an individual mandate.

If federal law does not ultimately include an individual mandate, then the state amendments, if adopted, would forbid state-level individual mandates. However, in listening to the proponents of many of these measures, it becomes clear that they have their sights set on a larger target: They would like the state constitutional amendments to forbid enforcement of a federal individual mandate, if enacted.

That position--the idea that a state law or state constitutional amendment can nullify a federal law--has a long history. During the Presidential Administration of John Adams, James Madison and Thomas Jefferson secretly authored the Virginia and Kentucky Resolutions, which asserted the power of those states to disregard as void the Alien and Sedition Acts.

Although history has judged the Alien and Sedition Acts to be oppressive, the Virginia and Kentucky Resolutions were also problematic: They asserted the power of states to unilaterally disregard federal law, and that assertion threatened both the supremacy and uniformity of federal law.

In the Nineteenth Century, in turn, nullification would increasingly become associated with slavery and a view of states' rights that threatened to unravel the Union.

And in the middle of the Twentieth Century, the theory of nullification was briefly revived by Southern Congressional opponents to the Supreme Court's desegregation mandate in Brown v. Board of Education. The "Southern Manifesto" nominally urged only "lawful" means of resistance to Brown, but, in context, it was rightly understood as providing aid and comfort to those who would once again set the cause of states' rights above racial justice.

Given the unseemly history of the nullification idea, one might think that modern opponents of an individual mandate (or anything else) would be reluctant to invoke it. Yet because they are either ignorant of, or undaunted by, the guilt–by-association of nullification, individual mandate opponents are pressing ahead with the notion that states can refuse to comply with federal laws that they deem unconstitutional.

Could the Secession Question and Others Be Un-settled?

Nullification is not the only idea that was rejected in the Nineteenth Century, only to re-emerge recently among opponents of all things federal. Consider secession. Last year, the governor of Texas suggested that unilateral secession is a legal possibility. Secession has also been promoted as a live option by some in the Tea Party movement.

Is secession really on the table? Surely not so far as the Supreme Court is concerned. As I explained in a 2004 column, according to the 1868 opinion in Texas v. White, we have an "an indestructible Union, composed of indestructible States." Accordingly, no state may unilaterally secede.

Has the Supreme Court changed its mind since 1868? It appears not. Justice Antonin Scalia recently wrote the following in response to a letter asking about secession: "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."

Maybe so, but secession was not addressed by any formal change in the language of the Constitution, even though other issues--such as the legal status of slavery--were addressed in constitutional amendments following the Civil War.

Thus, the Civil War's settlement of the secession issue is at risk of being "unsettled" by a sufficiently powerful movement for secession, should one arise.

Indeed, even matters that appear to have been settled by express constitutional language have become unsettled--or settled differently--over time. For most of the first century of American history, it was commonly assumed that the Constitution's grant to Congress of the power to "coin money" implied that only precious metal could be made legal tender. And so the Supreme Court held in the 1870 case of Hepburn v. Griswold. However, in the 1884 Legal Tender Cases, the Court, bowing to economic necessity, accepted the validity of greenbacks.

Another Constitutional Reversal: Un-settling the Second Amendment, and the Past Itself

The ever-present possibility of "un-settlement" is, well, unsettling. Lawyers and judges who assert that the meaning of a constitutional provision is forever fixed at the time of its enactment might contend that only new historical evidence of the original understanding should be permitted to unsettle constitutional law. But in fact, things rarely works that way.

The Second Amendment is an ironic case in point. For years, it was widely assumed by legal scholars and Supreme Court Justices alike that the Second Amendment protected state militias against federal abolition, but had almost nothing to say about a private right to possess firearms for self-defense. Then, the National Rifle Association and others began a systematic campaign to promote the idea that the Second Amendment does protect just such an individual right after all. And eventually, the Supreme Court itself went along, in the 2008 case of District of Columbia v. Heller.

Why is that ironic? Because even though the Heller case was the result of a deliberate effort by late Twentieth and early Twenty-first Century gun-rights activists to persuade the Court to side with their movement, the majority opinion was written (by Justice Scalia) as though the main factor for the Justices was an evaluation of the late Eighteenth Century meaning of the Second Amendment.

And so it is with nullification, secession, and whatever other movements arise to challenge accepted wisdom. These movements do not seek a return to some golden age, except perhaps as a matter of rhetoric or self-delusion. Rather, they are modern movements rooted in modern ideas--in much the same way that religious fundamentalism rarely seeks to recapture the religiosity of an earlier age exactly as it was, rather than imagining the gauzy past for contemporary purposes.

Whether nullification, secessionism, or any other currently-radical idea succeeds in moving from the nutty fringe to the mainstream will ultimately depend on how appealing the idea is to contemporary audiences. The Tea-Partiers cluttering my inbox with angry emails may be woefully ill-informed about constitutional law, but if they succeed in persuading enough people to join their ranks, then in the end, their views will become constitutional law.

That thought is more than a little chilling in calling to mind a scene in George Orwell's dystopian novel Nineteen Eighty-Four. Under torture, Winston Smith is made to repeat the following slogan: "Who controls the past controls the future; who controls the present controls the past."


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

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