Kevin Gutzman To Mark Levin: “Madison Wrote a Letter in 1833, So What!?”

Mandeville, LA – “A neighbor of Madison’s, a fellow who later would be governor of Virginia and U.S. Secretary of War under John Quincy Adams, James Barbour, said: My understanding is, if you call a law unconstitutional, you’re already saying it’s null, void, and of no force or effect.  So saying both that it’s unconstitutional and that it’s null, void, and of no force or effect is just redundancy.  Therefore, I don’t think there’s anything wrong with removing ‘null, void, and of no force or effect [from the Virginia Resolutions of 1798.’ ] We’re still saying the same thing.”   Check out today’s transcript for the rest…

Begin Mike Church Show Transcript

Mike:  There is a simmering controversy over one of the authors that is James Madison, what he said, what he didn’t say, and then what he retracted.  I’ll let you pick it up from there.

Kevin Gutzman:  Well, people who are listening to this probably know that what’s happened is, there’s an organization out in California called the Tenth Amendment Center, started by a really great guy named Mike Boldin, that has been advocating nullification of unconstitutional federal laws.

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The nullification effort by the Tenth Amendment Center has had a lot of success.  They’ve been able to persuade people in several different states to essentially ignore unconstitutional federal laws, most notably about marijuana regulation, but about several other things, too.  This has drawn the fire of a notorious talk show host whom you and I have encountered before, last heard calling Tom Woods and me “Dr. Nitwit and Dr. Knucklehead” on C-SPAN.  That’s Mark Levin.  Levin says, among other things, that nullification is unconstitutional, that Madison never supported the idea, that these people at the Tenth Amendment Center are just crazy and they need to be opposed.  What do we make of this?

First of all, what the Tenth Amendment Center is advocating, although they’re calling it nullification, isn’t really nullification.  Nullification in the 18^th and 19^th centuries meant using the force of state governments to prevent implementation of federal policy, that is standing up to the U.S. government militarily to keep them from doing things within the boundaries of Virginia, Kentucky, South Carolina or whatever state you were in, later Wisconsin when it came to the laws about returning fugitive slaves.  This is not what the Tenth Amendment Center is calling on states to do.  Nobody thinks that Kansas is going to take on the

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Nobody thinks that Kansas is going to take on the people that took down Saddam Hussein.  Nobody thinks that’s going to happen.  What the Tenth Amendment Center really stands for is treating unconstitutional federal laws as if they didn’t exist.  The terminology that was used about this kind of law in 18^th century Virginia was “null, void and of no force or effect.”  Here we’re back to 1798 to the discussion in the Virginia House of Delegates over the Virginia Resolution of 1798.

Madison, by 1798, was a retired politician, that is he had left the House of Representatives a couple years earlier.  In 1798, he and Jefferson drafted resolutions to be adopted by the legislatures, in Madison’s case Virginia, in Jefferson’s Kentucky.  The legislative sponsor in the House of Delegates of the Virginia Resolutions of 1798 drafted by Madison was your friend and mine, John Taylor.  Taylor, taking Madison’s resolutions, added to the sections about the lack of force of unconstitutional laws, that they were, these were Taylor’s words, “null, void, and of no force or effect.”  That had not been in Madison’s draft of the Virginia Resolutions.  When they got to the House of Delegates, the Federalists, of whom there were some, objected that this was inappropriate and it’s not for us to say this.  This discussion went on and on and on.  Some people in the Republican majority were concerned that there be as much support for these resolutions in the House of Delegates as possible.  They were kind of giving a sympathetic ear to the idea that “null, void, and of no force or effect” ought to be removed.

In general, this wasn’t going to happen until a neighbor of Madison’s, a fellow who later would be governor of Virginia and U.S. Secretary of War under John Quincy Adams, James Barbour, said: My understanding is, if you call a law unconstitutional, you’re already saying it’s null, void, and of no force or effect.  So saying both that it’s unconstitutional and that it’s null, void, and of no force or effect is just redundancy.  Therefore, I don’t think there’s anything wrong with removing “null, void, and of no force or effect.”  We’re still saying the same thing.  At that point, the Republicans all voted to remove “null, void, and of no force or effect” from the Virginia Resolutions of 1798.

Many people, in fact virtually every scholarly account of the Virginia Resolutions ever written, except for my two accounts, has completely ignored this, has said nothing about the discussion in the House of Delegates when it came time to figure out what the Virginia Resolutions of 1798 meant, and, further, has acted as if the removal of the words “null, void, and of no force or effect” was intended to make the statement more moderate, to be less confrontational with the federal government when, to the contrary, as I just explained,  it was intended to placate some people in the Virginia House of Delegates without changing the meaning of the resolutions in any way.  Again, to say the law was unconstitutional, the Virginia Republicans decided, was the same as saying it was null, void and of no force or effect.

What the Tenth Amendment Center stands for is treating unconstitutional laws as null, void, and of no force or effect, that is, you have a federal law that says you cannot have medicinal marijuana prescribed in any state of the union.  That is unconstitutional; therefore, you should treat it as null, void, and of no force or effect.  Go ahead, mister state legislator, and vote for a medicinal marijuana law, which now at last count I know of 20 states have done.  This kind of “nullification” that’s going on now at the behest of the Tenth Amendment Center, which I wouldn’t call nullification because, again, it’s not opposing state force to federal force.  It’s ignoring unconstitutional federal laws.  This is perfectly valid behavior by state legislators.  In fact, I would argue this is required of them by their oath to uphold the federal Constitution.

People who are in state legislatures today, as since 1789 when the federal Constitution went into effect, are under an oath to uphold the federal Constitution, and that includes upholding the reservation to the states of the powers not delegated to the federal government.  I think it’s perfectly valid for the Tenth Amendment Center to tell state legislators:  Hey, if the federal government adopts an unconstitutional law, that law is void, treat it as void, and go ahead and legislate in the areas that were supposed to be left to you as you would if the unconstitutional law didn’t exist.  You know why?  Because that unconstitutional law is null, void, and of no force or effect.

Now, Mr. Levin recently posted on his website a letter written by James Madison in 1830.  In that 1830 letter, Madison claims that he and the Republicans of 1798 never intended that an individual state would stand up to the federal government.  There are a couple of things to notice about this.  One is, James Madison was notorious in his own day for the fact that he frequently had shall we say midcourse corrections of his position, that is I could name you a very lengthy list of major issues on which Madison took opposite positions at different points in his career.   For example, in 1787 and 1788, Madison argued that a Bill of Rights for the federal constitution was not only unnecessary  [/private]

but would perhaps be dangerous.  Yet in 1798, he became the chief sponsor in the House of Representatives of a Bill of Rights.  In 1787, in Federalist No. 10, Madison argued against political parties.  In 1792, Madison became the founder of America’s first federal political party.  In 1791, Madison invented the argument that it was unconstitutional for Congress to pass a law chartering a bank.  In 1816, Madison signed into law a bill chartering a bank.  I could go on.

The point is, the fact that you can find a letter written by Madison, in the case of the 1830 letter about nullification, it’s 13 years after his political retirement, in which he took the position that agrees with whatever position you want to be taking in 2013 does not resolve the question: What does the Constitution mean in this regard?  I can find Madison on either side of most questions of constitutional interpretation.  In fact, when I was in graduate school at the University of Virginia in history, I knew a guy who was working on a PhD in political science at UVA.  He had written a master’s thesis called “How Many Madisons Will We Find?”  Again, anything that has read anything about him, who’s read his papers, who’s read my books would know that he was very inconsistent.  This isn’t Thomas Jefferson that we’re talking about here.

End Mike Church Show Transcript