Ever since Rick Santelli uttered the words on CNBC that would provide the political grounding of the Tea Party—a political movement aimed at limited government, restoring power to the States, and, most importantly, a return to the Constitution and the principles of the Founders—most conservatives have rightly supported the principles and aims of the Tea Party. But, in their laudable goal of restoring power back to the States, many Tea Partiers have supposed that nullification is among the principles inherent in the 10th Amendment; that the Founders had nullification in mind as a last defense to halt an encroaching federal government.
Nullification is the “principle” that individual states have a right to invalidate federal law. Nullification implies that the states formed the Union and that they can withdraw their allegiance anytime their interests are infringed upon. This assumption is, however, based on faulty history and a rejection of the natural rights principles of the Founding. As the Founders and Lincoln repeatedly declared, the Union did not begin with the Constitution: it began with the Declaration of Independence. During the American Revolution, the colonies simultaneously gained their independence and joined together in a Union. The Articles of Confederation was created to better preserve and protect the Union; that government eventually failed, and a Constitutional Convention was formed because, as stated by James Madison in The Federalist, “no alterations or provisions in the articles of confederation, could possibly mould them into a national government and adequate government.” Because of the incompatibility of republican principles with those underlying a confederal form of government, the Articles of Confederation was replaced by the U.S. Constitution, not with the goal of forming a Union but of forming “a more perfect Union.” Although individual states ratified the Constitution, the power to ratify rested on the consent of the governed, the basis for republican government.
Nullification is built on the idea that a minority can hold a majority hostage. Even more than that, it is an attempt to break the rule of law which is binding ultimately not on the states but on the People as a whole. As understood by Madison and the Founders, civil society begins with a social compact that is binding on all those who agree to enter that compact (the compact for America, of course, was the Declaration of Independence). Unless either the majority or minority is deprived of their natural rights, there is no just way to break the compact precisely because it binds equally on both the majority and minority. This is why when the South seceded—which features the same underlying principle as nullification—they did not resort to a natural rights argument, because it would have supplied slaves with all the more reason to revolt against their masters (instead, the basis for Southern secession rested on historical or prescriptive rights which are not found by nature). Secession, however, is not the same as the natural right to revolution which, because of the speeches and writings of John C. Calhoun, are today conflated by some to mean the same thing.
Although the Tea Party is right to resist the National Healthcare Act—otherwise known as Obamacare—they should know that nullification is a direct rejection of the Founders’ principles that they are working to preserve. The Founders provided constitutional methods of resisting unconstitutional legislation; now, as in any time, those methods should be followed so that we can return, as a nation, to following the Constitution and the principles of the Declaration of Independence.
Michael Sabo is a 2009 graduate of the Ashbrook Scholar Program. He currently works in state government.