Nullification Makes a Comeback

In the seventy years between the ratification of the Constitution of these United States and the Civil War, one of the darkest shadows hanging over the Republic was that of nullification.

The theory of nullification is that any state has a right to nullify–or cancel–any federal law within its own borders.

The South used nullification to restrain the federal government, first during the fallout from the Alien and Sedition Acts. The agrarian Jeffersonians saw these laws, which were passed during the administration of John Adams, as tyrannical encroachments into the lives of citizens, and Jefferson and Madison quickly moved to destroy them. Together they passed the Virginia and Kentucky Resolutions, which nullified the hated law within those two states.

Over thirty years later, Vice President John C. Calhoun dug up their argument and attempted to nullify yet another federal law. In 1828, Calhoun secretly authored the South Carolina Exposition and Protest, which encouraged Southern states to nullify the tariff of 1828, a protective tariff that was universally deplored by the South.

Four years later, after the tariff of 1832 was passed, South Carolina’s state legislature passed the Nullification Ordinance, which nullified both the tariffs of 1828 and 1832. President Andrew Jackson threatened to hang Calhoun as a traitor and signed the Force Bill, which authorized federal troops to be deployed in order to collect the tariff.

Twenty nine years later, South Carolina borrowed heavily from the Virginia and Kentucky Resolutions as well as the Nullification Ordinance when it seceded from the Union in response to the election of Abraham Lincoln. Four years and 620,000 dead later, the issue of whether states have the right to nullify federal laws had been settled forever. Or had it?

On November 8th, 2005, the City of San Francisco included on its ballot a measure called Proposition I. In its entirety, it states “Shall it be City policy to oppose military recruiting in public schools and consider funding scholarships for education and training that could provide an alternative to military service?”

Residents of San Francisco approved the proposition by an overwhelming margin of 20%. However, the measure itself will not change anything. The 2001 No Child Left Behind Act (NCLBA) revokes federal funding for all schools who ban military recruiters on campus.

For over a decade prior to NCLBA, San Francisco had military recruiters from public schools. The city only changed its policy after NCLBA was passed, not wanting to have federal funding cut. Because of the funding clause, the Bay City’s Proposition I lacks any real punch, but its lasting impact is significant.

If any city across the nation can vote to ban military recruiters and in fact, actively hand out scholarships as an alternative to military service, the nation is in serious peril. Our military defends and serves us all, and no state, city, or town has a right to deny recruiters access to schools. If such denial becomes a trend, the military would be crippled by low recruitment levels. As we are currently in a state of war, low recruitment puts additional strain upon the courageous troops serving not only in Iraq, but in Afghanistan, South Korea, and across the globe. Inadequate troop levels mean higher casualties not only for ourselves but for Iraqis and would cataclysmically destabilize our Armed Forces at a time when the creation of a free and democratic Iraq is closer than ever before.

The only thing keeping San Francisco from actually banning military recruiters is the clause in NCLBA that ties funding to recruitment access, and even that clause is under assault. A group of college law schools, intellectuals, and “free speech” activists are challenging the Solomon Amendment, a piece of legislation which mandates that all colleges who accept federal funding also allow military recruiters on campus. If the Solomon Amendment is overturned, cities like San Francisco could potentially sue for the recruitment access clause in NCLBA to be overturned as well.

On December 6th, the case of Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) was argued before the Supreme Court. At issue was FAIR’s contention that the Solomon Amendment violated the college’s first amendment rights.

FAIR’s case was built upon the fact that the military currently maintains a policy of “don’t ask, don’t tell” towards gay soldiers. This supposedly conflicts with the tolerant progressivism of these universities, and any federal law which mandates that an institution abide by a policy with which it does not agree is unconstitutional.

A closer look reveals that FAIR’s position is anything but tolerant. Justice Steven Breyer questioned FAIR attorney Joshua Rosenkranz during the oral arguments. He asked if colleges that held a similar aversion to the federal racial integration policy should be entitled to the same protection that FAIR was seeking. Rosenkranz’s answer was “absolutely.” Consequently, FAIR is then endorsing a policy which could be used to deny blacks or any other minority entrance into a college because the college had an academic right to disagree with federal non-discrimination laws.

Things become more absurd from there. Rosenkranz went on to cite the 1995 case Invisible Empire of the Knights of the Ku Klux Klan v. Mayor of Thurmon, where the KKK argued that the federal government cannot compel the organization to admit minorities. These progressives who claim to be representing tolerance are citing the KKK in their defense.

Fortunately, the Supreme Court does not look like it will overturn the Solomon Amendment. Of course, nothing forces the colleges to accept federal aid in the first place. If they feel morally compelled to ban military recruiters, they can do so, but at the cost of grant money. Thus they are really trying to have it both ways: keep their pockets lined yet be able to nullify any federal law with which they disagree.

With the Solomon Amendment secure, military recruiters will still be able to recruit on college campuses. It also means that the clause in the NCLBA preventing schools from banning recruiters will be upheld. But the San Francisco and FAIR cases provide a disturbing trend in which educational institutions are systematically threatening our military’s strength and actively assaulting recruitment.

Not only is this a reckless endangerment of our Armed Forces, it also runs against the principle of federalism which the Civil War attempted to settle. San Francisco’s and FAIR’s defenses are nothing more than politically correct versions of nullification. It is the same reasoning advanced by John C. Calhoun and it runs contrary to the fundamental tenets of republican federalism upon which our political system was based.

There is a reason why some laws are passed at a federal instead of state level, and just as South Carolina had no right to nullify the tariffs of 1828 and 1832, San Francisco has no right to nullify No Child Left Behind nor does FAIR possess the ability to wipe the Solomon Amendment from the books. If, however, they do succeed in nullifying these federal laws, I’m sure the ghost of Andy Jackson can come up with a suitable federal response.