Scott McKay has already given a good reply to Quin Hillyer’s completely tired, unoriginal criticism of State nullification, which rests mainly on name-calling, that one is racist if he breathes a word in support of nullification.  The Louisiana Legislature should not back away one inch from the resolution they approved (SCR 21).  They should, in fact, answer Mr. Hillyer’s column with even more defiance of what is the truly ‘loony-radical’ idea in US politics:  that the federal government gets to decide the limits of its own powers, as well as the limits of the State and local powers.

To demonstrate the falseness of Mr. Hillyer’s charge, that nullification is almost exclusively a racist Southern ‘heresy’ against the Philadelphia constitution, we present some examples of the Northern States’ exercise of nullification vis-à-vis the federal Fugitive Slave Act.  It comes from J. J. Kilpatrick’s very helpful book The Sovereign States:

But meanwhile, Northern States were far more industrious in seeking to nullify both Constitution and courts. Very early in the period, they began to adopt what were known as “Personal Liberty Laws”—State statutes designed shrewdly and deliberately to nullify the Federal Fugitive Slave Act. That this was their intention, few Northerners denied; that the enactments presented an outright defiance of law was generally conceded. Even the great Webster, no friend of slavery or the South, once commented of Southern outcries against the personal liberty laws, “The South, in my judgment, is right, and the North is wrong.”(155) The laws took a dozen ingenious forms. The Southern slave-owner, who came North seeking his escaped servant or farmhand, was susceptible of arrest himself on a trumped up charge of “kidnapping.” Should the slave-owner actually capture his fugitive, it was necessary for him to prove ownership by the most elaborate evidence— presented before a jury of hostile abolitionists. State officials were prohibited under pain of heavy punishment from cooperating in any way in enforcement of the Federal act. It was made a serious misdemeanor for any person to assist in the recapture of a fugitive slave. In Vermont, all fugitives were declared automatically free men; any person who attempted to detain such a fugitive thereafter made himself liable, on conviction, to a prison term of five to twenty years or a fine of up to $10,000.(156)

All told, fourteen respected and honored Northern States engaged in this prolonged, and generally successful interposition of their sovereign powers. Let the roll be called: Connecticut, Iowa, Maine, Massachusetts, Michigan, Pennsylvania, New York, Ohio, New Hampshire, Rhode Island, Vermont, Illinois, Indiana, Wisconsin. Theirs was a planned and deliberate program of nullification, pursued with relentless vigor, in defiance of the Constitution, over a period of nearly forty years. Each of them enacted laws willfully intended to veto the Act of Congress of 1793, and to render nugatory any effort to enforce it. As rapidly as their acts were held unconstitutional,(157) they enacted new evasions, or simply ignored the court decrees.

. . . Throughout the 1840’s, Northern States continued to encourage the escape of Negro slaves, and to harass the slave-owners in every attempt to recover them. In Ohio, Indiana, and Illinois, armed mobs forcibly took slaves from their Southern masters, evidently with the tacit approval of local law enforcement officers. Occasionally these measures encountered a frown from the Supreme Court; in Pennsylvania, one Prigg, attempting to return a Negro woman, Margaret Morgan, to her owner in Maryland, was indicted for violation of Pennsylvania’s personal liberty law, but on Prigg’s appeal to the Supreme Court Justice Story resoundingly held the State law unconstitutional.(172)

The only result, however, was that Pennsylvania in 1847 passed a new Personal Liberty Law, as ingenious as the one before. Massachusetts, fourteen months after Story’s decision, contemptuously adopted a law providing that “No judge of any court of record in this Commonwealth . . . shall take cognizance or grant a certificate in cases that may arise under the third section” of the Fugitive Slave Law of 1793.(173) Sheriffs and constables were prohibited by the Massachusetts Legislature from detaining fugitive slaves, under penalty of a fine of up to $1,000. Rhode Island, Connecticut, Vermont, and Michigan followed this example. It was as if Story and the Court had never spoken.

These few passages by themselves are enough to explode Mr. Hillyer’s thesis, yet even more ‘ordnance’ is available for use in Mr. Kilpatrick’s book, from the Tenth Amendment Center, etc.  It is very convenient that he omitted this part of the nullification story completely from his essay decrying SCR 21.

However, we think we understand the reason for his dishonest, ill-mannered outburst.  An all-powerful, irresistible central government is a deity to be worshipped for people like him.  It is the means by which all evil will be eradicated from man, and a perfect society erected.  ‘Redneck racists’ in the South will be transformed into virtuous Bostonians by its beneficent hands; other recalcitrant groups, like the Muslims in the city of Hamtramck, Michigan, which banned the LGBT flag from flying there, will likewise be re-educated and reconstructed.  Nullification – i.e., local autonomy – is an impediment on the road to utopia that cannot be tolerated.

But that is precisely its value.  Power diffused into many different institutional centers – cities, States, families, churches, schools, business guilds, etc. – protects people from dangerous concentrations of power.  Nullification is a good, healthy consequence of distributed powers in the US.  The Louisiana Legislature therefore should not reject what they have approved in SCR 21.  They ought instead to give it teeth in upcoming sessions, to give bite to their bark, the whimpering of people like Mr. Hillyer notwithstanding.