About That Georgia Nullification Resolution …

As Steve and others have reported, the Georgia State Senate has adopted a resolution allowing the state to nullify any federal laws it thinks are unconstitutional. Hendrik Hertzberg actually read the resolution, and wrote a post that made me want to read it as well: he described it as “a Kompletely Krazy Kocktail of militia-minded moonshine and wacko white lightning — a resolution that not only endorses defiance of federal law but also threatens anarchy and revolution.”

So I did, and as I read I had two main thoughts. First, while Hertzberg writes that the resolution is written in “a mock eighteenth-century style, ornate and pompous”, I thought it was an unnervingly good imitation of eighteenth-century prose. And not just in general: in referring to the Constitution as “a compact under the style and title of a Constitution for the United States”, the ‘style and title’ part struck me as pitch-perfect.

Second, there is something very peculiar about its content. Consider this passage:

“That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as 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.”

Where, I wondered, is the Supreme Court in all this? The Supreme Court determines the constitutional limits on the exercise of federal power. It has the power to nullify federal statutes. Therefore, it obviously puts a check on the executive and legislative branches. And while one might think that it has interpreted the Constitution wrongly, it’s very odd to write as though it didn’t exist, and did not have the authority to keep the other branches of the federal government within constitutional limits.

It occurred to me that there was a simple explanation for all this. So I googled a distinctive phrase, and lo! it turns out that the Georgia resolution is a lightly modified version of Thomas Jefferson’s Resolutions Related To The Alien And Sedition Acts. (Most of the resolution follows this version, but towards the end, it substitutes the eighth resolution, here.) It omits all references to the Alien and Sedition Acts themselves, as well as the part where Jefferson seems to say that states, rather than the federal government, have authority over “alien friends”, and that the federal government has no right to imprison people who do not obey deportation orders.

UPDATE: I inadvertently cut the following: And they added this piece of lunacy:

“Any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America.”

It’s followed by a list of laws that would constitute a nullification of the Constitution. Read it and weep. END UPDATE

This matters for the following reason. Jefferson wrote his Resolutions in 1798. At that time, it was still an open question how the Constitution was to be enforced, and, in particular, how the federal government was to be kept within its limits. In 1803, the Supreme Court decided Marbury v. Madison, which answered that question by holding that federal courts had the power to determine whether or not federal laws were constitutional. It did so on grounds similar to those that moved Jefferson:

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.”

Jefferson and Justice Marshall were confronting a similar problem: the need to keep the federal government within constitutional limits. They proposed different solutions: in Jefferson’s case, state nullification, in Marshall’s, judicial review. When Jefferson wrote, his views were not “militia-minded moonshine and wacko white lightning”. They were an attempt to answer a serious problem that had not yet been answered. His solution was, in my view, not the best one, but it was a serious answer to a serious question.

It matters when you write something. The Articles of Confederation were not ideal, but when they were written, they were a real solution to a real problem. Proposing them now would be idiotic. Likewise, what makes the Georgia resolution a Kompletely Krazy Kocktail is that it parrots Jefferson’s words as though we had not arrived at a solution to that problem nearly two centuries ago. But we have, and acting as though that solution does not exist, or as though it does not make state nullification both superfluous and a recipe for lawlessness, is absurd.

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