I’ve spent much of the last three years studying and defending the principle of state nullification of unconstitutional acts. The philosophical basis for state nullification rests on delegation of powers and the structure of the system created by the Constitution. But other forms of nullification exist, finding their legitimacy in even higher authorities.
At the insistence of southern delegations, especially South Carolina’s, the final version of the U.S. Constitution included a fugitive slave clause in Article IV Sec. 2
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Granville Sharp was not pleased.
Sharp represented James Somersett in a famous English case that led to the conclusion that slavery was unsupported by existing law in England. In his ruling, Lord Mansfield essentially argued slavery was incompatible with common law.
The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
When Sharp learned of the fugitive slave clause in the Constitution, he fired off a letter to Benjamin Franklin saying he was “sincerely grieved.” He went on to declare the constitutional clause was “null and void…It would be even a crime to regard [it] as Law.”
Note the similarity to the language Thomas Jefferson later used in the Kentucky Resolutions of 1798 when describing unconstitutional acts.
But Sharp didn’t base his view on any civic “law” or statute. He held that God’s law forbid turning over a slave to his “master.”
If a slave has taken refuge with you, do not hand them over to their master. Let them live among you wherever they like and in whatever town they choose. Do not oppress them. — Deuteronomy 23:15-16.
Whether or not you place any authority in the Bible, the underlying principle remains unchanged. Sometimes a higher moral law demands we disregard a man-made statute, or even a constitutional provision. Sometimes it will even lead us to take action to nullify the offending “law.”
Ultimately, we all answer to a higher authority than the “law” – our conscience.
Many northerners later took this command to its logical conclusion, harboring runaway slaves and ushering them along the underground railroad at great risk to themselves.
It was this higher moral law that led Rosa Parks to refuse to leave her seat on that Montgomery, Alabama bus. And it was apparently this sense of moral conviction that led Edward Snowden to leak information about NSA spying.
I understand that I will be made to suffer for my actions, but I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant, he wrote in a note accompanying the leaked documents.
We certainly don’t follow our consciences without risk. Parks went to jail for her moral, yet illegal stand. Snowden could conceivably face execution. But doing the right thing and standing up against illegitimate or immoral “authority” can sometimes change the world. Think about it: Parks’ simple defiant act when she remained seated lit a fire that ultimately consumed Jim Crow.
Remember, Rosa Parks broke the “law.” Heinrich Himmler was acting “within the law.” The “law” isn’t necessarily a good guide to what is morally right.
Sometimes we need to have the courage to nullify.