Wednesday, December 8, 2010

Nullification Hue and Cry Renewed

According to World Net Daily, State Rep. Leo Berman (R-Tyler) has filed legislation (HB 297) to nullify the healthcare reforms passed by Congress:
The federal Act: (4) is null and void and of no effect in this state.
The legislation also refers to James Madison, stating that healthcare reform 'makes a mockery of James Madison's assurance in Federalist Paper Number 45 that the powers delegated to the federal government are "few and defined" while those that remain in the state governments are "numerous and indefinite."'

Michael Maharrey of the Tenth Amendment Center also cites Madison's language in the Virginia Resolution of 1798.

However, they seem to ignore Madison's specific writing about nullification during the Nullification Crisis of 1832:
  • The strange doctrines and misconceptions prevailing in that quarter are much to be deplored; and the tendency of them the more to be dreaded, as they are patronized by Statesmen of shining talents, and patriotic reputations (Madison to Mathew Carey, July 27, 1831).
  • For this preposterous & anarchical pretension there is not a shadow of countenance in the Constitn. and well that there is not; for it is certain that with such a deadly poison in it, no Constn. could be sure of lasting a year; there having scarcely been a year, since ours was formed, without a discontent in some one or other of the States which might have availed itself of the nullifying prerogative (Madison to Nicholas P. Trist, December, 1831).
  • It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject (Madison to Nicholas P. Trist, December 23, 1832).
  • They cannot say that the right meant was a Constitl. right to resist the constitutional authy. for that is a construction in terms, as much as a legal right to resist a law (Notes on Nullification; December, 1834).
The words of Madison on this specific instance of nullification undermine any attempts to cite him as source in favour of legislation such as that filed by Rep. Berman. If there are grounds for challenging the constitutionality of a federal act, the states can bring suit and take their case before the Supreme Court, as several states are doing with regards to the healthcare reforms passed by Congress.

This topic was previously discussed on this blog: here.

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