At a breakfast event last week hosted by GenX Capital, Governor Herbert was asked what he thought about using nullification to protect Utah from the unconstitutional overreaches of the federal government. I was not in attendance (and the governor’s office was unable to immediately respond), but someone who was in attendance gave me a synopsis of Herbert’s response. Based on the governor’s comments on nullification, I think it’s safe to say that he has not taken the time to seriously look into the history of nullification and how it can be used today to make Utah a stronger, more sovereign state.
Nullification was used to defend slavery
This is a common objection raised by opponents of nullification, so it is no surprise Governor Herbert used it in his response. This one is easy: How could the Southern states have nullified a law that didn’t exist? There were no anti-slavery laws for the South to nullify, since abolition didn’t come until after the Confederate states had seceded and formed their own government. In fact, the truth is nullification was used against slavery when Wisconsin used it to prevent enforcement of the Fugitive Slave Act of 1850 which required that runaway slaves be returned to their “masters”.
The rule of law
Governor Herbert was also reported to have said, “we’re a nation that believes in the rule of law, and states should follow federal laws.” In Article VI of the U.S. Constitution, the “Supremacy Clause” states, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
As long as federal laws are “made in pursuance” of the Constitution, the states are “bound thereby”. If a Federal law is unconstitutional, the state has a responsibility to uphold the true “rule of law” (the Constitution) and declare the law null and void.
We invite Governor Herbert to listen to the more than 1,000 Utahns who have asked him to nullify Obamacare. We recommend to the governor Tom Woods’ book Nullification, as well as his article Nullification: Answering the Objections. A more complete understanding of nullification will be a benefit to Governor Herbert and all the citizens of Utah.