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Nullification? Gov. Newsom may have to consider it


I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.” – Martin Luther King, “I Have a Dream” speech, Aug. 28, 1963

“Nullification” is “a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional with respect to the United States Constitution (as opposed to the state’s own constitution). The theory of nullification has never been legally upheld by federal courts. The related idea of interposition is a theory that a state has the right and the duty to ‘interpose’ itself when the federal government enacts laws that the state believes to be unconstitutional.”

The theory of nullification has for the most part been discredited in this country, with most Constitutional scholars  arguing that federal law supercedes state law. Therefore, if the federal government enacts a law—or if the federal Supreme Court issues a ruling—then states are required to uphold it.

The reason why Dr. King was so ticked off about nullification was because southern states routinely ignored or blocked federal laws and Supreme Court rulings when it came to segregation. Following the High Court’s Brown v. Board of Education ruling, some states tried to nullify it; Arkansas, for example, attempted to block the Little Rock Nine from enrolling in high school, with Gov. Orville Faubus, an arch-segregationist, sending the Arkansas National Guard and the Little Rock police to surround Central High School and keep the black students out. That infamous episode led a very reluctant President Dwight D. Eisenhower—no fan of civil rights for Negroes, as they were then known—to federalize the Arkansas National Guard and protect the students as they entered the building.

Faubus had attempted to nullify the Supreme Court’s Brown v. Board of Education ruling, and even a conservative Republican like Eisenhower couldn’t let that happen. “Nullification” became a bad word for liberals in the Civil Rights movement, hence Dr. King’s use of the word.

The way I see it, “nullification” is a perfectly acceptable thing to do, if a state sincerely believes its rights and the freedoms of its citizens are being compromised by an overreaching federal government. In the end, “nullification” in itself is neither right nor wrong; it’s a tactic and is subject to the realities of politics. Eisenhower was right to federalize the Arkansas National Guard, because equality of education is a fundamental right of all American children, whether the Constitution explicitly says so or not. Central High School ought to have been opened to black students, not because of Brown v. Board of Education, but because it was manifestly the right thing to do (and black as well as white tax dollars paid for it). The fact that Brown v. Board of Education had been ruled by the Supreme Court merely made opening the school easier and more legitimate.

I use this example because I can easily foresee situations in which I would want my own state, California, to nullify future Supreme Court rulings that are obviously wrong. The two most salient examples concern abortion and gay rights. When Amy Coney Barrett is installed on the Supreme Court, the Court will have six (of its nine) Justices who are Catholic. The Catholic Church explicitly condemns homosexuality and abortion—this, despite the fact that it has systematically murdered millions of human beings over the centuries, including many homosexuals. If these Catholics who form the majority of the Supreme Court take away the rights of gay people to marry and of women to terminate their pregnancies, then I would want California and our Governor, Gavin Newsom, to nullify those decisions, because those decisions would be immoral and wrong.

In the event of the Supreme Court overturning Roe v. Wade, I would want Gov. Newsom to immediately announce that California will protect, using force if necessary, all women’s reproductive health centers in the state. And if the Supreme Court throws out Obergefell v. Hodges, I would want him to say that California will continue to recognize gay marriage and all other rights to which gay people are entitled, and which the Catholic Supreme Court in its hysterical homophobia will try to take away. If the federal government in retaliation (let’s say Trump is re-elected) threatens to punish California in some way (for instance, by withholding federal dollars for infrastructure or for wildfire protection), California has a big ace up its sleeve: the federal income taxes of Californians provide more money to the federal government than any other state, nearly as much as New York and Florida combined. If California withheld that money from the federal government, the federal government in all likelihood would no longer be able to sustain its obligations. Of course, withholding California’s taxes from the federal government would dramatically re-raise the topic of California leaving the union and becoming its own country (perhaps together with Oregon and Washington State). That’s a topic we can talk about at another time. In the meanwhile, Californians who thought that nullification was a horrible thing in old days should reconsider the possibility of employing it in order to resist the imposition of a religious, anti-democratic theocracy upon us.

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