Wednesday, August 18, 2010

The ongoing debate about "nullification"

I've been getting lots of comments about "nullification" lately. Many pro-"nullification" commenters have been pasting in boiler-plate arguments that cite Thomas Jefferson saying that "nullification" was a right of the states, so I thought it might be worth another short post to state the following in clear, unambiguous language:

Thomas Jefferson did not participate in the writing of the U.S. Constitution nor was he ever a U.S. Supreme Court justice. His opinions as to what the Constitution allows in terms of "nullification" powers as expressed in the Kentucky Resolutions (which he authored anonymously) is just that: a personal opinion with no force of law.

On the other hand, the U.S. Supreme Court in COOPER v. AARON, 358 U.S. 1 (1958) ruled 9-0--a unanimous decision--that there is no such thing as "nullification." No where does the word "nullify" or "nullification" appear in the U.S. Constitution or any of its amendments, including the 10th Amendment.

Simply put: there is no such thing as "nullification." It is a legal fantasy. The fact that it was a legal fantasy authored by Thomas Jefferson gives it no more legal power than the legal fantasies of any other philosopher or fantasist.

1 comment:

James Young said...

"The fact that it was a legal fantasy authored by Thomas Jefferson gives it no more legal power than the legal fantasies of any other philosopher or fantasist."

Yeah. Kind of like the "wall of separation between church and state."