Americans for Limited Government Foundation released a paper on December 19 claiming that state attempts to nullify ObamaCare are “unconstitutional and will do harm both to the people” of those states and to the overall effort to oppose the health care debacle known as the Affordable Care Act.
The eight-page attack on nullification was authored by Dr. Bradley Gitz, a political science professor at Lyon College in Batesville, Arkansas.
Regardless of Gitz’s academic credentials, his denunciation of nullification as an effective tool against federal overreach is full of the same misunderstandings, misstatements, and outright mistakes that have plagued similar statements published recently by other “authorities.”
Framing his discussion with the current attempt by the legislature of South Carolina to stop enforcement of ObamaCare at the borders of the Palmetto State, Gitz sets out to “count the ways” that nullification “is wrong.”
In our response to Gitz’s refutation, The New American will correct Gitz’s errors in order to help constitutionalists understand the power and propriety of nullification in the ongoing battle to force the federal beast back inside its constitutional cage.
First, Gitz claims the “status of nullification” is “settled law” and that the Supreme Court has settled the matter once and for all. He cites three 19th-century decisions and one from 1958 in support of his thesis. Although he does not elaborate on just how the decisions he mentions nail the nullification coffin shut, even the mere insinuation that such is true (or even could be!) deserves some attention.
Where does the Supreme Court derive the power to declare the actions of the states unconstitutional? Despite mentioning Article III, Gitz is unable to point to that clause or provision of that article granting to the Supreme Court the authority to nullify nullification.
Simply put, such a conception of Supreme Court power was never contemplated by the Founders.
To begin with, Thomas Jefferson specifically addressed this assumption in the Kentucky Resolution of 1798.
The principle and construction contended for that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a NULLIFICATION by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy. [Emphasis in original.]
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