The new nullification

By Hoyt Wheeler

Is South Carolina once again taking up the old Confederate cause by attempting to nullify national laws? Nullification was the theory of South Carolina’s John C. Calhoun that provided philosophical grounds for our state seceding from the United States a century and a half ago.

In the past year or so, we have seen a number of actions in this direction.

Most visibly, Attorney General Henry McMaster’s response to the new federal health law. He proposes taking legal action against the federal government to block the federal law’s application in South Carolina — to nullify it. He describes this as defending “state sovereignty.” Attorney General (and gubernatorial candidate) McMaster has said that although at one time the Soviet Union was the enemy, now “The enemy is Washington, D.C.”

Like the tea party crowd with whom he sympathizes, he is confused about what part of the S.C. heritage he’s following. It is not the “Don’t Tread on Me” flag of the American Revolution that he is waving. It is the stars and bars of the Confederacy.

Then there is the current attempt to forestall proposed federal labor legislation by amending the state’s constitution to mandate that all matters of employee representation (unions) be decided by secret ballot. It is currently federal law that an employer has the right to demand a secret ballot election if a union requests recognition. Pending in Congress is the Employee Free Choice Act, which would require an employer to recognize a union upon being presented with cards signed by a majority of employees. Although this bill has some merit, there is little chance of this particular provision being adopted.

More importantly, whatever the merits of the federal legislation, this is a matter for the national government, not the individual states, to decide. As our state legislators well know, in an area of law such as this, where the national government has lawfully acted, state action is preempted. This amendment to the state constitution would be patently unconstitutional under the U.S. Constitution.

Nowadays in our Legislature, we hear much about support for the 10th Amendment to the U.S. Constitution, which provides simply that matters not delegated to the federal government are left to the states or the people. In principle this is not controversial. However, a number of actions have been taken under its mantle by South Carolina and other states in the past year to assert state power against the federal government.

Our Legislature has adopted a state sovereignty resolution, or 10th Amendment resolution. State Sovereignty bills considered by some states go one step further and declare that the state must take action against federal laws that the state deems to be unconstitutional. The position of our attorney general on the federal health law is in line with these state sovereignty bills.

At a Tea Party rally in Boiling Springs, at which Attorney General McMaster spoke, a pastor from North Carolina described our president as “a proud young man who appears not to have a clue about America’s godly heritage.” A tea party organizer dressed as Tom Paine said: “I’m not calling people to arms, yet. But that may be what it comes down to at the end of 2010.” We have a congressman who shouts at our president, calling him a liar. This is in a national context where a former vice presidential candidate, Sarah Palin, tells a Southern Republican Leadership conference: “Don’t retreat. Reload.”

I, for one, do not see these extreme statements and actions as reflecting the good sense, patriotism and good will of South Carolinians. We can, and should, raise our voices and speak through the ballot to rid ourselves of those extremist public officials who have made themselves a source of embarrassment to our state.

Hoyt Wheeler is a retired university professor and attorney living in West Columbia. His publications include The Future of the American Labor Movement and Workplace Justice Without Unions.

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