"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
~ James Madison, Federalist 45
Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".
Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there’s a word we haven’t seen in awhile, and with good reason. You see, the word "nullify" like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution" belongs to a special class of political four-letter words, so called for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.
For this reason it’s understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word ‘nullify’ when commenting on Diane Rice’s bill, stating that it "is simply a synonym for ‘repeal’ and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using ‘repeals’ in place of ‘nullifies’ in the sentence that I quoted from Ms. Rice’s bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I’m sorry, Hal, but this doesn’t work. Montana didn’t pass the REAL ID Act, so it can’t very well repeal it; and nowhere in Ms. Rice’s bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."
April 25, 2009
Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. He maintains a blog at jeffersonian73.blogspot.com.
