Nullification made simple

By Earl Starbuck

The vast majority of Federal laws are unconstitutional and should, therefore, be nullified. Such has been my position for several years. When I share this position with other people, the response is generally one of flummoxed confusion or of derisive dismissal; I might just as well have declared myself the King of Jupiter. Leaving out those who like nullification, there seem to be three groups of thought, which sometimes overlap, concerning the doctrine of nullification.

To the first of these groups, nullification is lawlessness, because law professors have told them it is lawlessness, and it therefore must be rejected. After all, the States can’t just run around doing whatever they want! The Supremacy Clause and the Necessary and Proper Clause prove that. Checkmate, hillbillies. Do as your betters tell you. The second group views nullification as a relic of the distant past, shrouded in the mists of time, far too unmodern to be of any practical use today. Group three insists that, useful or not, nullification is just too complicated and complex for people to understand. All three of these groups are wrong. Please allow me to demonstrate why. 

Imagine for a moment that you are a teenage boy, about 14 or 15 years old. Let’s call you “Johnny.” Your parents get together with a bunch of the neighbours and decide they’re going to make a baseball team for the neighbourhood boys. You need exercise, and playing sports should keep you out of trouble. All the parents draw up an Agreement and sign it. The Agreement says they’re creating this team so their teen sons can learn and play baseball, and all you boys on the team have to do what the coach says. They call this “the Obedience Clause.” If coach tells you to run laps, practice your catching, take a turn in the batter’s cage, or do anything else concerning the learning and playing of baseball, you boys must do as he says. This is called “the Pedagogy and Competition Clause.” Practice will be once a week. The players’ parents pick the coach and can replace him if they wish. They decide to hire a new fellow who just moved into the neighbourhood recently and who used to play in the minor leagues. You and your buddies are all excited – you like baseball, and this sounds like it’s going to be fun. 

For the first couple of weeks, all goes well. You and your mates run your drills and learn the basics of the game. It turns out that you, Johnny, are quite good at throwing, so the coach makes you pitcher. Y’all play your first game, and, even though you don’t win, you have fun and look on the loss as a learning experience. Your coach, however, takes a different view. Playing baseball is all about winning, he says. “Johnny, you’re going to start greasing your ball so you can throw better.” You are taken aback at this. Greasing balls is against the rules and everybody knows it. “Coach, that’s cheating! We can’t do that.” The coach replies that you must do as he tells you – he is the coach, after all, and the Agreement says you must obey your coach. If you don’t, well, you’re breaking the Obedience Clause!

You don’t like this scheme, so when you get home you tell your parents all about it. Your mother tells you that your coach lied, that he was the one breaking the rules, and by refusing to cheat you actually protected the Agreement because your coach’s authority doesn’t include making you cheat. Your dad quickly calls up all the other parents in the neighbourhood and they fire the coach. All the parents are quite adamant: rule-breaking will not be tolerated. In your ex-coach’s place, they select one of the local ministers because he’s vocally opposed to cheating.

For a couple of weeks, all goes well. The reverend is a good coach and teaches you boys how to work well together as a team. Y’all are having more fun than you did before, and you learn to play so well that you almost win your next game. The reverend is dismayed at this defeat and decides you boys must have lost because you are too irreverent. So, at the next week’s practice, he sits you down and begins instructing you in the doctrines of Presbyterianism. After a couple of minutes, you ask him what any of this has to do with baseball. You guys are here to practice, not to attend a Bible study. The reverend tells you: “All things are connected to religion, Johnny, even baseball. Don’t you think God wants you to play honestly and exhibit good sportsmanship?” You readily concede that God wants you to do both of those things, but good sportsmanship entails playing, and playing means practicing. Besides, the Agreement your parents drew up says nothing about the coach having the authority to teach the team Presbyterian theology (or any other theology, for that matter). 

“Johnny, doesn’t the Agreement say that you must obey your coach?” Well, yes, you reply. Of course it does. All teams have to obey their coaches. That’s the nature of a team. “And doesn’t the Pedagogy and Competition Clause say you boys must do anything I say concerning the learning and playing of baseball?” You concede the agreement says exactly that, but you fail to see what Presbyterian theology has to do with the learning and playing of baseball. You’re going to go practice, whether the coach likes it or not. 

The reverend is incensed at your disobedience and threatens you: “You’re breaking the rules, Johnny, and your parents will be very upset! I’m going to call them in the morning and make sure you’re punished!” Despite this, a couple of your closest friends follow you, but most of the team stays quiet and listens to the reverend’s little sermon. When you get home, you tell your parents what has happened, and they are quite upset, but not at you. Indeed, your mother tells you that you were exactly correct in ignoring the coach and practicing – that was the purpose of your being at baseball practice. Mom and dad have no problem with your being taught the doctrines of Presbyterianism (they happen to be Presbyterian themselves), but they do have a very big problem with your baseball coach being the one to teach you, because they didn’t give him the authority to do that. Your dad calls up all the other parents and they are all agreed: the reverend had no business trying to turn your baseball practice into a Bible study because that wasn’t his job. They hired him as a baseball coach, not as a minister. So, they fire the reverend and go hunting for another coach. 

Eventually, the parents settle on a local lawyer as your new coach, because he is on the record as being in favour of the Separation of Church and Baseball. You go to practice and meet the new coach, who introduces himself as Marshall Clay-Lincoln, Esquire. He then very proudly informs everyone that his last name is hyphenated because his mother refused to take his father’s name when the two were married, and how excited he is to begin teaching you all to play baseball in an anti-patriarchal manner (whatever that means). He then sits you all down and informs you that every aspect of your home lives must change. He has already written up, and begins to pass out, a new schedule by which all of you players must abide. He’s also written up new diets, study habits, wardrobe regulations, and exercise routines. 

You know your parents won’t like these changes, so you raise your hand and object to them. Mr. Clay-Lincoln was hired to coach baseball, not rearrange your entire lives. What authority does he have to functionally replace your father and mother? The lawyer-turned-coach gives a white-toothed grin and replies that the Obedience Clause of the Agreement gives him that authority. After all, it clearly says that you boys must obey him if he gives you any order concerning the learning and playing of baseball, and your diet, sleeping habits, etc., all impact your ability to learn and play baseball. 

You reply that the Obedience Clause only has to do with baseball practice, not the whole rest of life, (not to mention the fact that he’s read part of the Pedagogy and Competition Clause into the Obedience Clause). Before Clay-Lincoln can respond, a voice from behind you chimes in with the assertion that you are entirely correct. You turn and see your father and a number of other parents who have all decided to attend practice this evening to try and prevent any further difficulties with the new coach. 

With the same saccharin grin plastered on his face, Mr. Clay-Lincoln walks over and shakes the hands of all your parents, then begins to explain all his wonderful new plans for your diets, exercise, sleeping habits, etc. None of the parents seem especially intrigued and your father immediately insists that this foolishness was not authorized by the Agreement, and if he keeps it up, Clay-Lincoln will be fired. Clay-Lincoln laughs and responds that your parents do not have the authority to fire him, and never have done. This baseball team, he says, existed prior to the creation of the Agreement by the parents, and the Agreement was merely a written codification of the team. As the coach, he and only he has the authority to interpret the Agreement. The parents are incapable of penetrating the depths of that weighty document, of truly comprehending all of the implied powers which emanate from its penumbras. 

By this point, your father is pretty hot under the collar and raises his voice just a bit. He tells Clay-Lincoln that the parents made the team, the parents control the team, the parents control their children, and if Clay-Lincoln insists on continuing this nonsense, he’ll simply pull you off the team. Clay-Lincoln is aghast at this assertion, and insists that no one can leave the baseball team! This is one baseball team, indivisible, indissoluble, bound together by the mystic chords of memory, and any attempt to leave the team is a crime of the worst kind. The team is all that matters, not its constituent parts. Your father insists that you are leaving, at which point Clay-Lincoln socks him in the nose. There’s a scuffle and a good deal of flailing limbs and the coach raving like a lunatic that a team divided against itself cannot stand, but eventually you and a couple of the other boys manage to tackle Clay-Lincoln and keep him on the ground while your best friend’s father (who happens to be the local sheriff) runs over to his squad car and grabs his handcuffs. 

Once your former coach has been wrangled into the back of the car, you turn to your father, who is attempting to staunch the flow of blood from his nose. He tells you that he’s quite fed up with this insanity, he’s had enough of wackos usurping his parental authority, and tomorrow the two of you are going to the local sporting goods store to trade in your baseball equipment. He is taking you off the team and will instead be teaching you the solitary (and hopefully much less stressful) game of golf.

I will not insult the intelligence of the reader by spelling out what the above story illustrates. Suffice it to say that nullification is legitimate, can be readily understood by the common man and woman, and that, given the current condition of affairs in the United States, it is more relevant than ever before. Marijuana legalization and sanctuary cities are two examples of nullification from the Left in recent years. Second Amendment protection laws are an example of nullification from the Right, which should have the courage, conviction of conscience, and constitutional clarity to nullify Federal abortion protections and vaccine mandates. 

Thomas Jefferson hit the nail square on the head when he wrote: 

“The several states composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each state to itself, the residuary mass of right to their own self Government … whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force…to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party…the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers…as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

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A native of East Tennessee, Earl Starbuck is an independent historian and a descendant of soldiers on both sides of The Late Unpleasantness and of Governor John Sevier. His father, who was a member of the Sons of Confederate Veterans, taught him to love history and the South. Starbuck holds a BA in History and Political Science from Carson-Newman University and an MA in History from Liberty University. He has no connection to the coffee company.