State's rights redux



Let's skip the latest byzantine congressional maneuverings over health care reform and cross the river into Virginia, where willful historical ignorance and constitutional cluelessness apparently run rampant.

Two days ago, the Republican-dominated state assembly thumbed its nose at Washington by passing a bill that supposedly gives Virginians the right to opt out of national health care reform. The bill, which the new Republican governor reportedly intends to sign, would supposedly block the federal government from requiring that all Virginians purchase health insurance.

This requirement is a core feature of the federal reform effort - expanding the pool of insured, premium-paying Americans would offset the increased costs of insuring the sick and those with preexisting conditions - but Virginia seems to think that it has the right to simply say No. As one conservative Virginia blogger rejoiced yesterday, "Virginian's (sic) will make their own decisions about health care."

Some politicians in 34 other states - working with legislative language crafted by the American Legislative Exchange Council, an organization bankrolled by conservative foundations and backed by some major players in the insurance industry - are hoping to follow Virginia's lead. They too seem to believe that states have the right to opt out of health care reform, to choose which federal laws they wish to obey or defy.

What I'm wondering is, did these politicians ever crack a book in history class?

The cause they appear to be championing was once known as "nullification." The cause peaked somewhere around 1832, when South Carolina declared that it would not comply with federal tariff laws. President Andrew Jackson threatened to send federal troops in order to enforce compliance, and he said: "I consider the power to annul a law of the United States, assumed by one state, (to be) incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." South Carolina backed down. End of crisis.

Jackson's remark about "the letter of the Constitution" was a clear reference to the Supremacy Clause in Article VI, Paragraph 2, which decrees that "This Constitution, and the Laws of the United States...under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In fact, James Madison, a founding father and prime architect of the Constitution, specifically rejected the nullification argument, and defended the intent of Article VI, in a letter he wrote for publication in 1830: "(G)iving such a power to a minority over such a majority would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself."

And lest we forget, more than 600,000 Americans died in a civil war that was fought to settle the issue over whether federal or state law was supreme. Care to remember which side settled the issue?

The nullification cause - also known as "state's rights" - has flared periodically ever since 1865, of course. Virginia's attempt this week to defy any federal mandate on health insurance is eerily reminiscent of Virginia's ill-fated attempt, more than 50 years ago, to defy the federal mandate on school desegregation. Virginia and other southern states passed laws to thwart the feds; Arkansas even amended its state constitution to separate the schoolkids by race. But the U.S. Supreme Court unanimously nixed those nullification efforts in 1958, ruling that the federal desegregation mandate had a "binding effect" on the states, and that "no state legislator...can war against the Constitution without violating his undertaking to support it." And in 1982, while dealing with a commerce issue, the high court again nixed nullification, declaring that "a state statute is void to the extent that it actually conflicts with a valid federal statute."

State law can't trump federal law, end of story. But this new nullification effort is not about legal scholarship, it's about political theater. It's about ginning up grassroots opposition and flipping off Washington. It's about scaring the Democrats during the run up to the November elections; indeed, 21 Democrats in the Virginia assembly voted for the nullification bill this week.

The long-term scenario may well benefit the Democrats - if federal reform passes, chances are that Virginians 10 years from now will be screaming, "Keep your government hands off my mandated health care!" - but right now we're still stuck in the short-term messaging phase. May the most effective messengers win. It's just a pity that these new nullifiers care so little about the historical tenets of the nation they purport to represent.