State Nullification and the Supremacy Clause

Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:

State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.

What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.

Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states


Who Was the Real Thomas Jefferson?

No one doubts that our understanding of historical figures may need to be revisited from time to time. But academic specialists have been known to overreach. To portray a historical figure in a light exactly opposed to the popular impression and to how all other scholars have viewed him is far more exciting than repeating the boring conventional wisdom. And if you can contrive a case that an admired statesman from history actually supported your own views after all, all the better.

Poor Thomas Jefferson has suffered this kind of treatment at the hands of countless historians, and Marco Bassani, a scholar of the history of political thought, will have none of it. Bassani, an American-born professor teaching at the University of Milan, takes ruthless aim at what has been called the “scholars’ Jefferson,” who bears scant resemblance to the classical liberal figure of the popular mind. Jefferson is one of those cases in which — in terms of his views on property, states’ rights, the Union, political majorities, and the Constitution — the earlier, conventional view was in fact the correct one. Bassani’s wide-ranging knowledge of Jefferson scholarship serves him well in Liberty, State, & Union, as he carefully describes and then refutes the competing schools of thought.

He begins with the controversy over “republicanism” and “liberalism” that erupted among historians of early America in the latter half of the 20th century. The “republican” consensus that developed sought to downplay, and even to dismiss altogether, the role of classical liberalism in the tradition of John Locke from the formative influences of the revolutionary generation. In its place they substituted an ideology called “republicanism.”