A Spavined Cow With the Staggers

As I write this, it appears that my home state of Idaho may be the first state to nullify Obamacare. From the initial pinching of oneself to determine if one is having too much of a happy dream, to the realization that such an action would in fact be momentous, an obvious thing to do in the meantime would be to discuss it. If this thing might actually happen, a lot of people need to get up to speed on it. Nullifiwha?

In a nutshell, nullification is the Jeffersonian doctrine that the individual states are called to be a bulwark against an overweening federal government, meaning that if the federal government does something that is manifestly unconstitutional, then the states have the right and obligation to simply refuse to go along. This remains the case even if the federal government’s misbehavior is certified as okay by a bevy of federal judges, who are, let’s be honest, paid by one of the parties in the dispute. While there is a system of checks and balances at the level of the federal government (in the separation of powers), there is also a system of checks and balances in the federated system as a whole–balancing the authority of the central government and the various entities to the federal compact, which would be the states.

Now for some, this is simply tilting at windmills. Nullification is dismissed as some form of secession lite, and the whole secession issue was settled by the Civil War. This puts everything about this under the heading of what constitutional scholars call “crazy talk.” But I think it is wise to separate the two issues. They are logically distinct, and the fact that nullification was successfully rejected during a time when the centralizers were in the ascendancy does not mean that it will necessarily be rejected when the centralizers are now acting like a spavined cow with the staggers.

In other words, the constitutional issues are often resolved on the basis of whether you can get a constitutional hearing for your case, and that depends on whether you have a strong hand on the practical level.

In our nation’s younger days (quite apart from the constitutional arguments), the expanders, aggrandizers, and centralizers had a strong hand, and so it was easier to agree to see their case as compelling (even if it was not), or inevitable, even if it wasn’t.  But now these folks have run up a bar tab of umptyumptillion, and they are laid out flat under the table, pickled in cheap gin. Somebody has to drive them home, and if one of the states says, “Here, let me do that,” the reaction is not likely to be what it was in 1830. The constitutional problem is the same, but the circumstances are not at all the same.

This is not a hypothetical scenario. Idaho is poised to do this, and if they do, other states may well follow. And for those who have been tracking this carefully, this resurrection of Jeffersonian nullification is not a novelty. It actually happened just a few years ago to a another tyrannical federal overreach. Two dozen states nullified the REAL ID Act of 2005. That federal law is still on the books, but unenforceable.

These things really do depend upon the consent of the governed, and if you overreach past a certain point, you lose that consent. So Washington backed away from that one.

But losing your grip can happen in at least two ways. You can lose the consent of the governed in such a way as to create riots in the streets, or you can lose it in such a way as to lose the support of what Calvin called “the lesser magistrates.” While the former is something that Christians naturally abhor, rejecting revolution, this approach is actually form of reformational civil resistance that Christians need not have any problem getting behind.

Consider it on the practical level. Here at Christ Church (in valiant Idaho), we employ various people, and they have health insurance policies and whatnot. Suppose Obamacare comes completely online, and as a result the feds require us to do something with x,y, and z. Suppose further that the state of Idaho has expressly said that, whatever we do, it shouldn’t be x, y, or z. What do we do? A simplistic appeal to Romans 13 won’t cut it, because whatever we do, it will be disobedience to a civil entity established over us by God.

We might have to do some thinking. Maybe read a book. Get out a copy of the Constitution, and read through it again. Now it is possible that some of your friends will just dismiss the whole thing as ludicrous. “Nullification isn’t in there, you ninnyhammer!” If that happens, just tell them that you think the Constitution is a living document.