Resistance Is NOT Futile: Forgotten Lessons from the Nullification Crisis

By Josh Eboch on January 8, 2010 in History, State Sovereignty

Posted January 8, 2010

Even as calls for nullification of proposed federal health care mandates have intensified on the state level, an almost hysterical effort has arisen to discredit such measures, and paint them as part of an obsolete theory with no bearing on modern politics.

Regardless of its logical descent from our most basic founding principle, that governments derive their just powers from the consent of the governed, nullification simply doesn’t work, critics say.

Or does it?

While it’s true that our system of checks and balances has been weakened substantially over the years, federalism itself has not. Divided power remains as viable a structure of government as it was the day our Constitution was ratified. Perhaps a better question is: Can nullification succeed peacefully?

Of course! It already has. For proof, one need look no further than the truth behind a favorite parable of establishment statists, the Nullification Crisis of 1832-33.

Over the years, that crucial victory for the sovereign states has been converted into a cautionary tale by those who wish to discourage taxpayers from ever questioning their federal masters. So distorted is the history that a recent article on modern nullification efforts in the Nashville City Paper declared

In the Nullification Crisis of the 1830s, South Carolina passed a law nullifying federal tariffs, but the state backed down after President Andrew Jackson sent Navy warships to the Charleston harbor.

The only problem with that story is it never happened.

After nullifying the so-called Tariff of Abominations in late 1832, the citizens of South Carolina began making serious preparations to defend themselves with deadly force against any attempt by federal agents to collect the hated tax. What followed was a tense standoff between President Jackson and a relatively small group of determined citizens, that could easily have resulted in secession or war.

But those citizens refused to be intimidated by Jackson’s repeated threats of violence, and they certainly didn’t surrender to warships in Charleston Harbor.

As Wikipedia admits, it was not until the end of February 1833, when “both a Force Bill, authorizing the President to use military force against South Carolina, and a new negotiated tariff satisfactory to South Carolina [emphasis added] were passed by Congress,” that “the South Carolina convention reconvened and repealed its Nullification Ordinance.” From that point on, right up until the War Between the States, the tariff rate declined steadily.

In other words, after putting the federal government on notice that they were prepared to defend their sovereignty, with force if necessary, the people of South Carolina agreed to abide by a new “negotiated tariff,” that they felt was fair, rather than fight a war or leave the Union; neither of which they wanted to do in the first place. A clear victory for nullification, and for peace.

In fact, the entire episode is more or less a perfect demonstration of how robust federalism and divided power once protected liberty within our voluntary Union, by keeping the ambitions of the central government in check.

So why the modern spin on this event as some kind of heroic, unilateral militarism by President Jackson, and a watershed moment for centralization? Well, for one, that interpretation fits with what statists would have us all believe anyway: that there is no force on Earth (including public opinion) capable of resisting orders from the national government.

It also makes for a neat segue into the conflict that erupted 30 years later along the same fault lines of federal vs. state authority, providing a convenient way to dismiss, without debate, those who call for nullification today, by linking them with slavery and the antebellum South. At least in the eyes of an historically ignorant public.

Yet, from the Fugitive Slave Act to REAL ID, American history is replete with examples of states successfully asserting their sovereignty in constitutional disputes with the federal government. And there is every reason to believe that they could do so again with regard to health care, should it prove necessary.

If the proposed federal mandates are so unpopular in any given state that a majority of its people support legislation or a state constitutional amendment to nullify them, that should be a clear indicator to President Obama and Congress that the governed have withdrawn their consent. Any attempt to assert federal power in the face of such opposition will inevitably be seen by the citizens of those states as illegitimate and unjust.

At that point, it will be up to those in Washington to decide whether they want to respect the natural laws on which our nation was founded, or whether they would prefer to wager their lust for power against the full electoral fury of the sovereign people’s wrath.

About Josh Eboch

Josh Eboch [send him email] has previously served as a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he wrote regularly for the Center on issues related to state sovereignty and nullification.

View all posts by Josh Eboch →

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The Constitution Will Never Enforce Itself

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53 comments

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Jason Schommer

Hang the lot, and start over

Pat Rowden

Bout time somebody stood up to this cult. The good bock says wolves will come in sheepskin

Herbert Hayes

All proud Americans MUST DID IN THEIR HEELS AND CLEAN HOUSE IN WASHINGTON or risk all that they have accumulated and see their families fade away into slavery.

Ted Slaughter

sure it can work, but, the people need to wake up, wise up, and speak up, before the government actually stands up and says shut up... and yes doubting thomas they can and will...

Rod Woodward

JUST SAY NO TO obummer!

Charlotte Rice

They didn't pass Obamacare with the consent of the people!

David Bornick

Resistance to tyranny is obedience to God .

Jennifer Jordan Kelly

How about we nullify the Johnson Act and the Hatch Act. We need Freedom of Speech restored.

William E Benison

Let not your Heart be troubled..... LOVE, an Infinite Emotion designed and created this Mufti-Dimensional Universe with Galactic Defenders from a Time before Earth existed to bring our creation back to LOVE, Prime Creator????? Be Here and Now or Later, LOVE is the only way back to the source, LOVE Prime Creator---->

Dennis Vines

It is imparitive.........

Ben Gover

Another method that fails to correct troubles.

Gerry Hearn

It worked in Oregon when they passed the medical marijuana law.

Ed Wojciak

its the only "hope" WE the people have.....besides a VIOLENT REVOLUTION....probably going to be the latter

Susan Hopkins

Are you crazy? When you get old enough to be classified as a unit and eliminatred then you will be screaming this does not work! Useful idiot that you are!

Howard Hines

Nullification is the way to preserve liberty without bloodshed.

Elaine Langford

Yes it works that is why the opposition is trying to stop it!!!

Janet Lynem

If it does not work why do they protest?

dzhokuhl

The Force Bill was passed overwhelmingly by both chambers of the federal legislature in 1832 constituting, in effect, Congress's declaration that States do not have the right to nullify. Although South Carolina in its turn declared the Force Bill itself nullified, Congress has never rescinded it, and it is regarded to have settled the matter, at least from the point of view of the federal government.

I believe that States ought to have the right to nullify unconstitutional acts of the federal government. Nevertheless, it is a head-in-the-sand approach to ignore that the Congress with the passage in 1832 of the Force Bill is believed to have clearly declared the view of the federal government that States do not have the right to nullify.

SebastianAnthonyIlacqua

The federal congress' view on nullification is irrelevant to me. You don't require permission to dissent from the very institution that is the object of that dissent. Congress does not have the authority to defy the 10th amendment. Any attempts to do so will be regarded as unconstitutional tyranny.

Chad

Nullification by the states does not mean that the federal government is going to allow the state to look after its own citizens best interests! The Nullification Crisis is a great example. Protectionist tariffs imposed by the federal government to protect northern industrial interest ended in a fiasco! The protectionist tariffs essentially raised the price of cheap (often better) manufactured goods from Europe far beyond the poorly manufactured goods from the northern states. When South Carolina attempted to nullify these taxes that was destroying the livelihood of its people the congress approved of the Force Bill. This bill essentially gave the president any power (including military power) to collect the tariff tax. Eventually, South Carolina and the federal government came to a compromised… but left a bitter taste in state citizens’ mouths, effectively setting the background for the war in 1861.

Free Soil

That is because the purpose of those tariffs was to provide economic incentives to free the slaves, embrace the Declaration principles and cease engaging in the capital crime of man-stealing - all without recourse to civil war.

That is why the South hated them. Once the British troops were driven out, the sin of New England 'going down to Egypt for help' became the chief conflict in this country.

Ruth Ann Wilson

It is not our Foundational Documents that are the Fault in the current crisis. It is the leaders will not stay within the confines of the Constitution which they took an Oath before God to defend and uphold.
NO CONSTITUTIONAL CONVENTION AT ANY LEVEL
NO, NO, NO
The states have Declaration of Rights at the beginning of their Constitutions, STAND ON THOSE INDEFEASIBLE RIGHTS.
The problem on the 17th Amendment can be taken care of by REPEAL. FDR had no trouble taking care of repealing the Prohibition Amendment, XVIII (Which I thought was an excellent Amendment, seeing I hate to see the destruction of men's soul that is caused by sanction of this poison.) So the States simply stand on their Declaration of Rights and Repeal 17th Amendment. Our Founders where not in favor of popular vote of the Senators from the states. No need to go through that "argument", we all know why they didn't want "popular vote of the Senators." I believe it has become very obvious that they were very wise in their decision against "popular vote of Senators."

For God & Country
Ruth Ann Wilson

azcIII

Problem is, repeal of the 17th requires action from Congress. Amendments must pass both houses before being sent to the states for ratification.

Windy

Actually repeal can be achieved by 2/3 of the states voting to repeal it, without the consent of congress.

And the Continental Congress has completed their work, go here to see if you support it:
http://www.articlesoffreedom.us/ArticlesofFreedom...

R. Emmerson

R.C. Jackman suggests a Constitutional Convention be called to reassert the powers of the states according to the 10th amendment. While this sounds good, I do not believe there are laws which govern or restrict the powers of the attendees to a Constitutional Convention to a particular topic. Even if there were restrictions, I do not trust that the politicians who would attend such a convention would abide by them. The reason for our current problems is a complete disregard for the limits imposed on the federal government in the Constitution. Once a Constitutional Convention is convened, there is no guarantee what they might do. If we could trust today's politicians to do what is right and legal, then we wouldn't be having this discussion? A Constitutional Convention will only allow the corrupt politicians to take a virtual red pen to the existing Constitution and rewrite it - for the "welfare of the people" of course. It's always done in the name of our benefit - isn't it?

In my humble opinion, the vast majority of politicians in our government(s) represent nothing less than a cancer on our society. If we are to ever to return to a state of personal liberty, this government must be purged of those cancerous scoundrels who have done, and will continue to do us harm.

While we may recognize that the current Constitution needs certain additional safeguards of personal liberty and we need stronger checks and balances restricting governmental usurpation of power, the people who undertake such a solemn task must be citizens of the highest moral caliber. I have no confidence that politicians can be entrusted with power to restrict their own power over us.

azcIII

We need to restore the checks and balances that existed in the original Constitution, namely, repeal the 17th Amendment. Unfortunately, that requires action from the corrupt Congress, who will NEVER give up the ability to bamboozle the public into electing Senators.

There is another option. Just prior to Lincoln's inauguration, Congress passed a proposed Amendment (would have been the 13th) and sent it to the states in an effort to prevent the South from seceding:

"ARTICLE THIRTEEN, No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."

It was never ratified...but there is no time limit for it. (The 27th Amendment was originally proposed in 1789 as the 11th). Time limits were imposed in 1933, but don't apply to previously proposed amendments. Like calls for a Con-Con, once approved by Congress and sent to the states, there is no mechanism for rescinding an amendment. Two states ratified this one, then the South seceded, war broke out and it was forgotten...but not gone.

The pro-slavery language is problematic, but wouldn't slavery or the banning thereof (already codified in most or all states) be considered a domestic affair? Kind of like abortion should be? What if the states ratified this now? Would it accomplish the goal of giving the states instant, Constitutional nullification of all abuses of the Commerce clause and General welfare phrase? Extending that, states could ban DEBT SLAVERY as well.

Any constitutional experts out there who can weigh in on this?

Loren

Hey everyone. Just want you all to know that this is all a waste of time. You will not gain anything of real benefit. Follow the money people. The fed bank runs this country through the Bank of International Settlements. By the way Ben Shalom Bernanke isn't just on the fed bank here in the USA, he is also on the board or directors for the bank of international settlements. Also This Bank only has as its clients central banks and a few of these are Iran, USA, England, Libya, etc. This bank is not accountable to any government just as our federal reserve bank is not accountable to the federal government. So look into this for yourself and wake up to the fect that you are slaves in your own nation and you can not own property in this country. If you don't like this or you don't agree with me , too bad. This is all true and it is your reality PERIOD.

R. C. Jackman

"Virtual Nullification": A simple denial of federally mandated insurance will not work. Our citizenry will fear IRS regulation. However, states can declare federal mandates to be illegal, in violation of the Tenth Amendment; they can call for a Constitutional Convention. The Convention would act to propose a constitutional amendment allowing states to manage the collection of federal taxes. This would restore a balance of power between the states and the federal government.

ANTICRIME

R.C., and any one else reading this; Google: "Constitutional Convention 2009" view the videos and check out the 60+ page document they worked on over 11 days this past November. http://www.GiveMeLiberty.org is behind this and we all need to get behind them! Too many small splinter groups; we need ONE powerful voice to be heard!

ANTICRIME

Correction to my above post: Google: CONTINENTAL CONGRESS 2009

Wynne

"It is dangerous to be right when the government is wrong."
-- Voltaire

"Perhaps a better question is: Can nullification succeed peacefully?"

I believe it is the essential question, and I am less confident than Josh Eboch about the answer.
While my view may seem excessively pessimistic, cynical -- even paranoid, I am not sanguine in the belief that the federal government (perhaps state and local as well) will respond, ultimately, without force. In the course of centuries past we find that Good-faith, legitimate petitions for the redress of grievances too often have led to disastrous consequences not foreseen at the time by any parties.*

Though they often do it poorly, governments recognize the value of maintaining contingency plans and strategies in general, and especially in matters of preserving power. I can easily imagine that in the case of a state, or states, asserting Tenth Amendment rights, the government (after exhausting preliminary efforts at judicial and fiscal coercion) would declare the conflict(s) to be civil disobedience and respond accordingly.

I think, though, that how the government meets challenges to its power would largely be determined by popular support for the matters chosen by the states to be at issue and whether a state acted individually or several states acted in concert. More simply stated, peaceful resolution would seem more likely if states choose their issues (battles) wisely, and if two or more states are joined in the same effort.

The existence and growth of at least one organization -- The Oathkeepers -- would seem to confirm that I am not alone in anticipating the darker possibilities in a conflict between citizens and government. I suppose my point is this: contempory nullification may in fact follow the peaceful examples cited, but we should not be too quick to dismiss alternative possibilities.

* In my view, the American Civil War was precipitated by the general government's desire to assert and consolidate power. I believe that the scope and devastation of the war that followed the provocation at Fort Sumpter was not remotely imagined by either side.
I think also of the hundred and fifty years of religious wars that followed in the wake of Luther's posting of written grievances against the Papacy.

@twitimbo

I want to know if a state can assume a power that the federal government has and under what conditions that it can. The section of the constitution that states the jurisdiction of the federal courts gives "extends" its jurisdiction to certain cases. Extending a power could imply that state courts have that power still because the constitution is extending that power to the federal courts which implies that the original power still still remains intact within the states.

Now if a state can assume all powers that the federal government has minus the ones specifically prohibitted then why can't a state assume the power to interpret the constitution over the same matters that the federal government can and use whatever judicial power over its jurisdiction to stop what they think is unconstitutional for the government to do?

@twitimbo

I hate the dismiss without debate tactics but since the current nullification effort will be against healthcare then they can't dismiss it since they will have to deal with it head on and those that may not normally support nullification might because they don't support healthcare. The healthcare might act as a wedge issue for state nullification.

Curtis Rice

Educate the populace and bring on the fight. The citizens of these United States can and will be brought to "un" unite the usurpation of our liberties by the centralized federal machine. As the flag of Virginia so eloquently states,Sic Simper Tyrannis!

jdelaney3

In sentence 3, I meant "federalists", not "statists". Sorry.

jdelaney3

Opinerlog.blogspot.com has a couple good posts on nullification and civil disobedience. Worth checking out. I wish the Center had the $ to start educating the electorate about the 10th amendment and the enumerated powers section of constitution. Thru catchy soundbites, the statists are convincing the electorate to roll over and accommodate federal overreaching. Without aggressive education program and patriotic legislators, I fear the statists will prevail. But those detractors who say that reinstituting the Articles of Confederation is the only way to restore state rights, I say balderdash. States' rights have been eroded because states have allowed themselves to be bought off. Thus, achieiving balanced budgets at the state level is the first step to restoring states' rights. Repealing the 16th amendment is a logical second or parellel step to achieving the right balance between state and federal power. Anyway, the problem seems very obvious and no amount of spinning or foolish reliance upon the Supremacy Clause can excuse what's been happening in this arena. We've all got to keep pushing at the state legislative level to restoring the constitutional balance.

Rich

The article was very good...But we need it quick...Right now we have the HB I'm sorry but I work for my money and I don't want to pay yuor bills...The interpol act they can come here with no search and seizure regulations and lock us up with no due process....They are going to vote a bill in that sound like a patriate Law but all it does is make us pay for all abortions...They are taxing and regulating business so were not going to get any jobs...

jmaarch

Why doesn't every American that is sick and tired of the government stealing our rights with out our representation or agreement in an attempt to enslave us, file a notice of Feloney-Treason by way of an Affidiavit of Negative Averment, Opportuity to Cure and Counterclaim in Admiralty, with the Feds, State and Local governments, nullifing all their activities and giving them 30 days to respond. After their default, we the people are no longer legally responsible or accountaible to all their color of law frauds like Social Security, Income tax, gun control, health care, etc. Then stop feeding the monster by not paying illegal taxes and shut down their frauds and deceptions and demand that the Republic be restored from the criminals highjacking it.

Fabian

That because you people dont have the balls!

Drake Bailey

Our Attorney General, Florida, has entered the controversy.
A reply to his efforts says that The Supremacy Clause over rules the Tenth Amendment and any other legal disagreement between fed and state.
http://www.heraldtribune.com/article/20100111/COL...
This professor has the audacity to offer the civil war as an example...
Guess they are getting desperate.

@twitimbo

The problem with anti-nullification propononents is that they forget that the supremacy clause states that the constitution and all laws pursuent to it are the supreme law of the land. That means that the constitution and laws that are compatible with it are supreme not any law the federal government can pass.

Richard Burnett

OK, so here I go again: During that Nullification Crisis, James Madison wrote against nullification, to include refutring the nullifier's interpretation of the compact theory, the VA-KY Resolutions and more.. see his letters to Nicolas Trist in Dec 1832 and to Edward Everettt in 1830 as examples, not to mention his stuff in the Federalist.
On this site, I have at least been told by one of the proponents for nullification and secession that he had not read either of these letters, which is interesting, as Madison was the key Framer and Founder regarding the Constitution and the Bill of Rights, and has therefore more importance that say, George Mason or even Patrick Henry. But then the secesh advocate let it slip that the Constitution itself was a move backwards away from liberty, that the real thing ought to be the Articles of Confederation. If this is really the stance of the Tenth Amendment Center, why not say so and drop the pretense of supporting a Constitution that you feel is less for liberty than the Articles? Even if you rolled the clock back, you would still have Thomas Jefferson, under the Constitution, breaking the Tenth in the item of the Louisiana Purchase of 1803.

Jeff Martin

The Founders carefully devised the U. S. Constitution with separation of powers between the branches so that there could exist a system of checks and balances. They wanted to prevent a centralization of power to a single person or body, like what happened in Great Britain, which lead to despotic rule. Because of what was happening in the state legislatures, the Articles of Confederation had no real authority on the general governoring of the nation. And now, this President and this Congress, has been aggressively eroding those checks and balances and have increasingly been centalizing power in the Legislative Branch. I believe it is the Congress where we need to take aim. I am a Virginia resident and I have called on my state legislature's majority leader to advance the idea of recalling our U.S. senators for failing to perform their sworn duties. We simply can't wait until the mid-term and general elections to remove them. This could set a precedent for other state houses and send a clear message to the federal government that it is subject to THE PEOPLE and that THE PEOPLE are a force to be reckoned with!

Strider55

Next on the nullification agenda is the federalization/foreign deployment of Natl. Guard troops. A "bring the Guardsmen home" movement is already under way in several states. Successfully accomplishing this would deal a major blow -- perhaps a fatal one -- to the War Party.

Byl

Well, while I'm at it, the link for Tenther Grapevine doesn't work either.

: )

Byl

Great post. Just want to point out that the hyperlink for REAL ID doesn't work...says..."Sorry, no posts matched your criteria."

Keep up the good work

JMB

I think this is a Damn good article Josh, and that comment that was made by Cameron, is definitely, in my opinion, absolutely correct.

Cameron

This is why, IMO, it time for a state, any state, to fully take the lead and force a position that will require the Federal government to respond with either backing off, or escalating the unjust legislation. Either way is a victory for the people. If the Feds back off, then the desired effect has been achieved and the states can reclaim the rights that are the states to begin with. If the Feds do not back off, then they will be forced to escalate (as noted) and by doing so they will tip their hand. This will "wake up" more fence riders than not, and the states will begin to align. I feel all it will take is one conservative state to make a real stand for the the rest of the conservative states to follow.

2010 is the deciding factor and 2012 is the make it or break it point.

arjis

Excellent post Josh.

We need to get states citizens more aware of the potential of nullification as a tool of their sate to combat the onslaught of federal legislation being imposed.

Lou Riccio

John C.

I agree, unity is the key. I have posted this site at facebook to spread the word. Many people may not be aware but there is a group in it's beginnings designed to battle this type of Federal encroachment called AmericaAgain. Obama is simply not listening or caring. Lets spread the word and get unified.

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Rick Santorum Sounds Like Rachel Maddow on Nullification – Tenth Amendment Center Blog says:

January 7, 2012 at 6:54 am

[...] to the civil war” as so many idiots claim. That happened almost 30 years prior. Read about it here. And, when the South seceded, it wasn’t an expansion of their nullification efforts. South [...]

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