How not to fight ObamaCare


Author: Timothy Sandefur

Opposition to the Obama Administration’s health care mandate has taken many forms; more than half of the states are now suing the federal government, and the House of Representatives recently voted to repeal the law. It’s gratifying to see the seriousness with which so many people are taking the constitutional issues at stake.

What’s not so pleasant is to see that a number of legislators are trying to revive the doctrine of “nullification”—a doctrine that has no foundation in the Constitution, is politically dangerous, and has no hope of success. Opponents of ObamaCare—insofar as they care about the actual Constitution—should refuse to participate in efforts to “nullify” this law.

Nullification is the idea that a state can unilaterally declare a federal law to be without effect. The idea was devised by the brilliant and evil John C. Calhoun, who pointed to the 1798 Kentucky and Virginia Resolutions drafted, respectively, by Thomas Jefferson and James Madison. The theory goes like this: the Constitution is basically like a treaty between the states, each of which retains its sovereignty in the same way that the member states of the United Nations retain their sovereignty. This retained sovereignty means that states still have the ultimate power to decide whether something is or is not constitutional. As Jefferson put it in the Kentucky Resolutions, “to this compact [i.e., the Constitution] each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party…. [A]s in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Jefferson was a great and brilliant man, but he was wrong about this. The Constitution is not a treaty among sovereign states; it is a Constitution—that is, it creates a single, unified, sovereign, federal union. It derives its powers, not from the states, but from the whole people of the United States. It does not give Congress only the power to ask the states permission, or to operate through the states—it gives Congress power to legislate directly for the nation. Indeed, the whole point of writing a new Constitution in 1787 was to replace the Articles of Confederation—which really was like a treaty among sovereign states, and said so in its preamble and Article II—with a government that derived its authority from, and which could legislate for, the national people as a whole. This point was made time and time again during the ratification debates. For instance, in Federalist 15:

The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist…. [I]f we still will adhere to the design of a national government…we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens….

Patrick Henry opposed ratification for just this reason. During the debate over whether Virginia would approve the Constitution, %28DOCID%2B@lit%28ed0032%29%29%230030003&linkText=1" target="_self" rel="noopener">he demanded, “Who authorized [the Constitution’s authors] to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” To this, %28DOCID%2B@lit%28ed0032%29%29%230030003&linkText=1" target="_self" rel="noopener">James Madison agreed, saying that that was just why the Constitution should be adopted: “Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect, the distinction between the existing and proposed governments is very material. The [Articles of Confederation] has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people.”

As I explain at greater length in my article, “How Libertarians Ought to Think About The U.S. Civil War,” both advocates and opponents of the proposed Constitution knew at the time that it would create a sovereign government, and not a treaty between the states—and they chose to ratify it.

This central idea—what legal scholars call “divided sovereignty”—means that the federal government cannot directly force states to do certain things (and that is one of the major arguments being made by Florida, Virginia, and several other states in their challenges to ObamaCare). But it also means that states have no authority to intercede between the federal government and its citizens. To put this idea in the form of an analogy, the federal government derives its authority from, and can legislate directly on, the people just as states can—in the same way that the gas company and the electric company provide your house with different services and send you different bills. But of course the gas company cannot give commands to the electric company, or tell you that you don’t have to pay your electric bill!

This has always been the consistent interpretation of the Constitution in federal courts. John Marshall went out of his way in McCulloch v. Maryland, to emphasize:

The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition…. [After it was drafted, the Constitution] was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject—by assembling in convention. It is true, they assembled in their several States—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people…. It required not the affirmance, and could not be negatived, by the State Governments.

Or, as Justice Anthony Kennedy wrote many years later,

The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.

Thus when Jefferson claimed in the Kentucky Resolutions that the Constitution was a treaty like the Articles of Confederation, he was simply wrong—and James Madison said so years later, when Calhoun began using the Kentucky and Virginia Resolutions as the foundation for his nullification theory. The Constitution, he emphasized, was not created by the states, but by the people of the nation; thus state governments could not simply declare a federal law void.

Sadly, Calhoun and his followers brushed aside Madison’s and Marshall’s arguments, and their theory of nullification became the basis for the theory of secession—that since the states were members of a league, they could leave that league when they chose. The idea of secession—that states may unilaterally leave the union—is based on the same error: the false premise that the Constitution is basically a treaty between sovereignties. It isn’t—the Constitution derives its power from “the people of the United States,” just as it says in its preamble. States may not absolve their citizens of membership in the nation, just as the gas company can’t interfere with your contract with the electric company.

As I explain in my article, “Privileges, Immunities, And Substantive Due Process,” the Fourteenth Amendment was written in an effort to put this debate to a final rest. At the end of the Civil War, the victorious Republican Party hoped once and for all to make it clear that the American government is not a group of sovereign states, but derives its power from the whole nation. After the ratification of that amendment, it simply can no longer be argued that the Constitution creates a treaty of sovereign states. (The states aren’t even sovereign enough to determine who their citizens are! That’s done for them by the federal government. Imagine a sovereignty unable to even determine citizenship!)

No federal court of which I am aware has ever given credence to the idea of nullification, and with good reason: there is no constitutional warrant for it whatsoever. Worse, it has pernicious consequences. Consider, for example, Alabama state senator Scott Beason, who explained his nullification proposal to a reporter: “A lot [of] people say, if the Supreme Court decides that [ObamaCare] is constitutional, you have to live with it. My feeling is, the people should have the final say.” Well, of course the people should have the final say, Sen. Beason—but the legislature of Alabama is not “the people”! If the people—the people of the United States, who are the real foundation of the federal government—want to undo ObamaCare, they have that power. The people elect Congress and the president and indirectly appoint the federal judiciary—the people can litigate, repeal, or amend the statute or the Constitution.

But confusing state governments with “the people” is a recipe for oppression. State sovereignty means allowing 50 state governments to dominate over citizens without meaningful protection from the federal government. State autonomy is a good idea in some ways—it’s good to have local decisions made locally, and to allow different states to try different ways of addressing problems. But it is not an end in itself. As James Madison said in Federalist 45, “Were the [Constitution] adverse to the public happiness, my voice would be, Reject [it]. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.” The greatest Constitutional accomplishment of the 19th century was precisely that it sacrificed the sovereignty of state governments for the freedom, peace, and safety of the people.

There are all sorts of problems with ObamaCare. It’s unconstitutional—that’s a big one. But using this controversy as an opportunity to resurrect the doctrine of nullification—a doctrine with no constitutional foundation, no hope of winning in court, and which, if successful, would allow 50 states to trample on individual rights at will—is an unwise and dangerous idea.

If you’re interested in learning more about nullification, states rights, and the constitutional order, I recommend—in addition to a careful reading of The Federalist and Anti-Federalist PapersAkhil Amar’s book America’s Constitution: A Biography, and Daniel Farber’s Lincoln’s Constitution.