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The Heritage Foundation Takes on the Tea Party as the CPAC Curtain Rises

February 9, 2012

As the constitutional claims of the tea party have become more and more extreme, we here at the Constitutional Accountability Center have been troubled by the lack of push-back from serious conservatives to some of these embarrassingly wild and unfounded claims. This failure of adult supervision has allowed claims that should truly remain on the constitutional fringe to flourish in conservative legislatures around the country.  Legislation attempting to nullify the Affordable Care Act has already been introduced in 15 different states and passed in North Dakota. “Nullification-lite” legislation, which does not explicitly declare the ACA null but nevertheless aims to prohibit state participation in new federal healthcare programs, has found even wider success, with bills being introduced in 39 different states and passed in 10. Even national politicians such as Utah Senator Mike Lee have praised the idea of nullifying the healthcare law.

In light of this unchecked rise in support for nullification among conservatives, a new factsheet released by the Heritage Foundation yesterday deserves special note. The factsheet, titled Nullification: Unlawful and Unconstitutional, in plain and compelling terms demolishes the historical claims made by the tea party fringe about the validity of nullification as a tool for opposing federal laws. Here are just a few of the points that the Heritage Foundation makes:

Nullification Is Bad History: Advocates of nullification often point to Madison and Jefferson’s drafting of the Virginia and Kentucky Resolutions of 1798—which protested the constitutionality of the Alien and Sedition Acts—as proof that the Founders advocated nullification. This is incorrect and misleading.

James Madison: Madison’s Virginia Resolutions did not speak of nullification or voiding laws, asserting that the resolutions did not “annul the acts” but were only “a legislative declaration of opinion on a constitutional point.” During the Nullification Crisis of 1832, Madison strongly denied John C. Calhoun’s theory of state nullification.

Thomas Jefferson: While Jefferson referred to nullification in the draft of the first Kentucky Resolutions (by which he meant a natural right to revolution outside the constitutional structure), the final language excluded the term and called on other states to join "in requesting their repeal at the next session of Congress." The 1799 version affirmed that the resolutions did not supersede federal law but were rather a “solemn protest” against the objectionable legislation.

This fact sheet is a must read for anyone considering the constitutional claims of the tea party.  While Heritage’s arguments are not novel -- we’ve been debunking these claims for almost two years – the messenger matters a lot, and there are few more powerful and reliably conservative organizations than Heritage.  They deserve credit for finally stepping up and attempting to restore some sanity to the conservative view of the Constitution.

While the Heritage Foundation factsheet on nullification is encouraging, it will be interesting to see how their takedown of nullification is received at the Conservative Political Action Conference today where the 10th Amendment Center is planning to screen a movie promoting the idea of nullification. This will be an ideal test for determining if conservatives will choose to adhere to the Constitution’s text and history or will instead blithely embrace the fairy tales about the Constitution being peddled by the tea party.