GOP gathering hears about history of nullification

As state legislators continue to ponder several bills to declare parts of federal authority “null and void” in Montana, Flathead Republican women got their own history lesson in nullification last week.

John Fuller, a retired history teacher and former Republican candidate for House District 4, talked about nullification at a gathering of Republican women on Monday in Kalispell.

“Nullification does exist and is a legitimate means of dealing with federal law,” Fuller said.

Although nullification is generally considered the right of a state to invalidate federal laws that the state deems unconstitutional, Fuller expanded that definition to include actions by presidents, governors, state Legislatures and local entities.

Montana Republicans introduced nearly a dozen nullification bills during this legislative session. Some have been killed, but several are still alive. Among the proposed legislation is a bill making it illegal to enforce some federal gun laws in the state, and another aimed at establishing state authority over federal regulation of greenhouse gasses.

Various Western states passing medical marijuana initiatives, including Montana in 2004, is also an example of citizens nullifying federal law, Fuller said. In the case of marijuana, the federal law does not allow the purchase of the product.

Fuller said nullification dates back to the Kentucky and Virginia resolutions of 1798, which were written by Thomas Jefferson and James Madison against the Alien and Sedition Acts. Jefferson later was elected president and Congress repealed the Alien and Sedition Acts.

In another context, President Andrew Jackson effectively nullified federal laws when he didn’t make Southern postmasters deliver abolitionist propaganda, Fuller said. Jackson also didn’t enforce a Supreme Court ruling that required the federal government to protect Cherokees who didn’t want to leave Georgia.

“Remember, there isn’t a single court in the nation with a police authority,” Fuller said, noting the courts rely on the president and other entities to carry out their decisions.

One of the most significant areas where nullification is being attempted today, Fuller said, is the effort of individual states to nullify “Obamacare,” otherwise known as the Affordable Care Act of 2010.

“If you don’t fund it, it dies,” Fuller said. “We don’t resort to violence. The people of the state of Montana are the ultimate judge if they are being grievously injured by federal law.”

Fuller said nullification has been given a bad name because it’s been closely associated with secession. South Carolina tried to nullify the “Tariff of Abominations” through a state law, but ended up repealing the ordinance after Congress reached a compromise.

He compared the effect of state nullification to jury nullification, which happens when a jury of the people nullifies law enforcement’s prosecution efforts by refusing to convict on laws that they consider unjust.

“The people are sovereign. Not the federal government. Not the state of Montana,” he said. (As a point of reference, the Montana Constitution actually refers to Montana as “a free, sovereign and independent state.”)

Fuller said that a number of states, including Montana, nullified the federal REAL ID law that attempted to crack down on illegal immigrants obtaining drivers licenses. That law was a response to the terrorist acts of Sept. 11, 2001.

And Gov. Brian Schweitzer took a stand to nullify federal law in regard to the protection of wolves when he said the state wasn’t going to enforce wolf protection provided for in the federal Endangered Species Act, Fuller noted.

Schweitzer has said, however, that the nullification bills advancing in the Republican-controlled Legislature won’t help solve problems faced by the state, and he plans to veto them.

All the talk of nullification may leave some people scratching their heads as to who is in charge, Fuller said, but he believes that’s what the nation’s founders had in mind.

“The founders recognized that what worked in one state doesn’t necessarily fit somewhere else. A one-size-fits-all mentality results in tyranny,” he said. “The government that governs best is the local government.”

Reporter Caleb Soptelean may be reached at 758-4483 or by e-mail at csoptelean@dailyinterlake.com.