In January, hotair.com reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.  I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

• Nullification would create a patchwork of laws, rendering national governance impossible.
• Nullification was a factor in the lead-up to the Civil War.
• The Constitution grants no authority for the states to nullify.
• The Civil War proved that nullification is not an option.
• The supremacy clause means that the federal government is superior to the state government.

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ to have a place to refer people to find the rebuttal for all of the standard arguments.  This is a work in progress, so if you would like to contribute content for questions and/or answers, please use the contact form to e-mail us your suggestions.  Phineas also made the more unusual argument that when Jefferson and Madison penned the Kentucky and Virginia Resolutions, fourteen other states declined to support them in their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

AND

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.)

Those points led me to submit the following comments…

Steve Palmer says:

January 22, 2011 at 11:14 pm

I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK.  In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one.  Please follow the link for a more detailed explanation.

AND

Steve Palmer says:

January 23, 2011 at 12:00 am

Sorry to follow myself, but while rereading your article, I became intrigued by another point.  Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?  If so, I’d really like you to elaborate on that line of reasoning!

I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof.  I also have an article on that subject here – LINK

It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones.  I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts.  I am very curious to hear your line of reasoning to the contrary.

To my question about whether the northern states should have refrained from nullifying the federal fugitve slave acts, Phineas responded,

January 23, 2011 at 6:36 pm

No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind.  Probably not the best one to use.

I followed up with this comment,

Steve Palmer says:

January 24, 2011 at 9:49 pm

So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

(quote from original post)

“To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.”

In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK.  Anyway, I thought conservatives supported federalism?

In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway.  We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it.  Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete.  You are correct insofar as the states were always opportunistic in their support of nullification.

For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

Which drew this response from Phineas,

January 24, 2011 at 10:22 pm

Hi Steve,

I haven’t read Woods’ book.  I should, since it’s an interesting topic.  In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge.  The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.  The expositions of the judiciary, on the other hand, are carried into immediate effect by force.  The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration?  What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens.  This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights.  Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states.  Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

My response,

Steve Palmer says:

January 24, 2011 at 10:57 pm

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett – http://www.lewrockwell.com/woods/woods147.html

And this seems to be the relevant paragraph,

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution.  Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void.  Nullification merely disallowed the enforcement of a nonexistent constitutionality.  What could be controversial about that?

Here is Madison’s report, which both of them mention – http://www.constitution.org/rf/vr_1799.htm

I’m surprised Woods’ didn’t mention this, but I just took a quick look.  Barnett was apparently careless in selecting his quote.  Madison’s report is organized in sections.  Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government.  Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

The following is based off a speech given at Nullify Now! in Orlando, FL on 10-10-10.
Watch the video here: Part 1, Part 2

We don’t need no stinkin’ permission to exercise our rights. We need to exercise our rights whether they the government want us to or not.

Ok, so let’s start out with the easy stuff, here… I’m a proud tenther. That means I believe that the federal government is authorized to exercise only those powers that we the people delegated to it in the constitution – and nothing more.

The founders created a system, unique in history, where the most difficult and most divisive issues would be kept close to home in our states and our communities. And, there’s a good reason for such a system – it’s the only kind that can allow people of widely varying political, religious, and economic viewpoints living together in peace. I’m from California. In Florida, you likely don’t want California’s policies. We shouldn’t be required to have Florida’s. Maine should be different from Montana, Texas should be different from South Carolina, and so on. This is the system that best advances freedom.

Unfortunately, though, for a long long time, there’s been very little that the federal government does that actually IS authorized by the constitution.

QUESTION: WHAT DO WE DO ABOUT IT?

- Do we lobby congress or march on DC and ask that federal politicians limit their own power?
- Do we sue them in court and ask federal judges to limit federal power?
- Do we vote the bums out – and hope that the new bums will reject their own power?

Thomas Jefferson and James Madison both warned us that if the federal government ever became the sole and exclusive arbiter of the extent of its own powers – that power would endlessly grow…regardless of elections, separation of powers, courts, or other vaunted parts of our system.

They were right. For over a century, we the people have been suing, and marching, and lobbying, and voting the bums out. But yet…year in and year out, government continues to grow and your liberty continues to diminish. And, it doesn’t matter who is the president, or what political party controls congress – the growth of power in the federal government never stops.

Power – the problem we face today is about power – and until we address the absolute fact that the federal government has too much power, and going to the federal government to fix problems caused by federal power – things will never change.

John Adams once gave us a warning that “liberty once lost, is lost forever.” He wasn’t necessarily saying that there’s no hope whatsoever. But instead, it was an important lesson. Whenever government tells us they need more power to deal with an “emergency” – and they always have them for both foreign and domestic issues – that same government will never voluntarily give that power back. They’ll never just decide that the newfound power is something they don’t want, and that liberty will never be regained without a long, difficult struggle by the people.

WHAT WOULD JEFFERSON DO?

How do we fix this mess? Well, I think I’m in pretty good company if i go with Thomas Jefferson’s advice that “whensoever” the federal government exercises “undelegated powers” … “a nullification of the act is the rightful remedy.”

Reading this, you’ll notice that Jefferson didn’t say that a nullification of the act is a pretty decent remedy. He didn’t say that nullification is just a rightful remedy, or even a good idea to try after voting bums out or going to court. He told us that when the feds exercise powers they’re not supposed to exercise, We’re not supposed to wait for the federal government to correct itself. Jefferson’s advice is that we must resist violations of our rights on a state level – every time it happens.

Around the country, there’s a lot of talk about nullification – but what is it, really? I can think of no better way to define it than how Tenth Amendment Center research analyst Derek Sheriff has done – by describing what it is not:

Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.

Nullification is something that’s already happening around the country – and Derek explains the process:

Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.

At its very core, nullification is any action on a state level that results in some federal law being null and void – and of no effect. It’s about “We the People” exercising our rights whether the politicians or judges in Washington D.C want to give us “permission” to exercise those rights or not. We don’t need no stinkin’ permission.

HEMPCON

I recently went to an event called Hemp Con down in my part of the state – Los Angeles. This is a big event at the LA convention center – with loads of vendors and businesses from every angle you can think of in support of the marijuana industry.

There were home security companies to help protect your weed, solar power companies to help you grow your weed, doctors giving out medical marijuana cards to virtually anyone with $80 and an hour of time. There were even delivery services – you can get your marijuana delivered to you 24 hours a day…in 30 minutes or less. The pizza companies have nothing on these guys! It was amazing if you think about it from an economic standpoint – this was capitalism, the free market – working its wonders around an industry.

What’s the point?

Virtually every single one of those businesses was either directly violating federal law, or aiding someone else in doing so because marijuana is illegal, according to the feds – but not the constitution – in all situations. And guess what – no ATF or DEA thugs shut the place down. Business functioned, people did what they wanted to in freedom, and that was that.

In fact, in 2005, the Supreme Court ruled that state medical marijuana laws were illegal. At that time there were 10 states that had such laws. Since that court ruling came down, not one single state has repealed their law. And today, there’s even more adding on – there’s now 15 states defying Washington DC on marijuana, and they’re getting away with it.

THE BLUEPRINT

When enough people say no to unconstitutional laws, regulations, and mandates…and enough states pass laws to back those people up, there’s not much the federal government can do, but slowly and consistently back off. There’s no tanks rolling into Los Angeles to shut down the dispensaries. This is far from perfect, but it can work, and it is working right now.

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Whether it’s gun rights, or health freedom, or maybe someone should start rejecting the Department of Education because we’re sick of the federal government controlling our schools…the solution to our problems does not lie with the federal government. It lies in our states, and with ourselves.

THE BIG QUESTION

So here’s the final question – and my big challenge to you today. When it happens some day, and it will, that the federal government tells you that you have to purchase some healthcare plan, and you start thinking about penalties for violating that “law” – ask yourself this…do you have as much courage as the pot smokers?

I sure hope you do. Because we need to exercise our rights whether they give us “permission” to or not!

At the beginning of every movement is a wild bunch. Rowdy workers on the docks in Boston, John Brown and his half-mad family. When historians trace back from Scott Brown to the beginning, they will get to a wild bunch in New Hampshire called the “Free Staters.”

They moved here a few years back and live on the edge of the forest, not more than a handful at first but expecting thousands to follow, intending to start the republic fresh again. And in a way they did. I came to their attention with an article in 2003 titled “A States’ Rights Defense against Dick Cheney” premised on Thomas Jefferson’s Kentucky Resolutions, making the claim that New Hampshire and Vermont need not participate in the war on Iraq without the permission of our state governors.

They had moved up here drawn to our state motto, I think – Live Free or Die. But it was no big ideological thing, more a free-spirited awakening which brought the usual scoffs from the lace curtain MSM and conventional political religionists here in the cold where local politics sometimes seems a substitute for religion. I received an email from one blithe spirit who said that she was basically about “ . . . opposing gun laws, legalizing marijuana and Hillary is a bitch.”

What we had in common was the premise that Thomas Jefferson had recognized the natural state that formed of its own initiative when ideology was removed from the equation. And acknowledged that in the Constitution by declaring that the states had the natural right and the ability to defend themselves against an abusive, arrogant, immoral or delirious federal government.

From then till now, this idea has taken off. I think now it cannot be held back. It will bring us a new breed of politician and a new political generation. It is already doing so.

This thinking first began to move last February when Dan Itse, a New Hampshire state representative, read commentary related to Jefferson and the Kentucky Resolutions and proposed a 10th amendment defense against the Obama administration’s deficit spending; spending so extensive that it would tax future generations. 37 other states immediately followed his initiative.

Then again on April 15, 2009, when the Tea Party revolts started across the country. When Texas governor Rick Perry appeared at one at the Alamo it brought greater legitimacy to this movement. His friend Ted Nugent brought his own inimitable style. Sarah Palin undoubtedly brought this movement nationally when she led support of other governors to the NY 23 race, bridging the Tea Partiers and the mainstream.

Mainstream conservatives and the Tea Partiers need to merge, Palin told Fox’s Greta Van Susteren. “Definitely, they need to merge. I think those who are wanting the divisions and the divisiveness and the controversy — those are the ones who don’t believe in the message. And they’re the ones, I think, stirring it up.”
They have already merged.

The election of Bob McDonnell as Virginia’s governor completed this transformation and fully legitimized the Jeffersonian ideals in Jefferson’s home state. This can be seen now as the new mainstream. The election of Scott Brown insured that Massachusetts and the East would not be left out.

In his speech in response to President Obama’s State of the Union, McDonnell made several references to the singular man of the Enlightenment who awakened the world: “It was Thomas Jefferson who called for ‘A wise and frugal Government which shall leave men free to regulate their own pursuits of industry ….and shall not take from the mouth of labor the bread it has earned…’ He was right.”

Jefferson could awaken us again in 2010 and 2012. And it all started up here in woods of New Hampshire with the Free Staters. Never underestimate the power of a handful of rural red necks, duty-bound, born-again to the Constitution and hell-bent on a free vision of starting the world again. ‘Twas ever thus.

Bernie Quigley [send him email] writes a “Pundit’s Blog” column for “The Hill,” political journal in Washington, D.C. He is a prize-winning writer and has worked more than 30 years as a book and magazine editor, political commentator and book, movie, music and art reviewer. He lives in the White Mountains with his wife and four children.

Jefferson once wrote, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” To resist this centralizing trend, the sage of Monticello was convinced, the states needed some kind of corporate defense mechanism.

CLICK HERE TO READ THE FULL ARTICLE

To the casual eye, Kevin Gutzman has written a scholarly book about Virginian political thought and practice from revolutionary times through 1840. But its scholarly merits do not exhaust the merits of Virginia’s American Revolution: From Dominion to Republic, 1776-1840. Readers are also treated to the incidental pleasure of watching the Straussian rendering of American history dismantled piece by piece.

As that version would have it, the United States was formed by a single American people in the aggregate and is not and never was a compact among sovereign states. The states are necessarily subordinate in their relationship with the federal government, never having enjoyed independent existences of their own. They possess no corporate mechanism by which to resist federal usurpation, and they are bound to accept the federal government’s monopoly on constitutional interpretation.

Gutzman begins his story in the 1760s, as the controversy with the mother country is growing more and more intense. Richard Bland, who served in the House of Burgesses, began his 1766 pamphlet An Inquiry into the Rights of the British Colonies by revisiting his colony’s early history. In coming to these shores, he said, Virginia’s settlers had availed themselves of the natural right to emigrate. They had come to a new land at their own expense, and were no longer subject to English law, having fallen under the “Law of Nature” instead.

That meant Virginians had been in a position to enter, of their own free will, into a mutually binding relationship with the Crown, which they subsequently did. They expected future kings to abide by James I’s promise that Virginia’s form of government would never be altered. Virginia could be taxed only by its representatives, and possessed “such Freedoms and Privileges as belong to the Free People of England.” The Crown had repeated this guarantee numerous times, said Bland, in its commissions to Virginia’s royal governors.

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Thomas Jefferson lent his own support to this narrative in his Summary View of the Rights of British America, but as Gutzman observes, there is “virtually nothing in Jefferson’s Summary View that Mason, Bland, Carter, or the Burgesses had not said before.”

The preamble to Virginia’s republican constitution of 1776 spelled out Virginia’s understanding of its legal status before the world, as it had been explicated by Bland and Jefferson. Virginia had the exclusive authority to govern for Virginia. The king, meanwhile, had unjustly refused to accept a position as head of a great commonwealth of dominions tied together by a common loyalty to his dynasty.

The grievances listed in the preamble revolve almost entirely around the issue of self-government – economics barely appears; religion, not at all. That self-government was later reaffirmed in the Articles of Confederation, Article II of which described the states as having maintained their “sovereignty, freedom, and independence.” Virginians were persuaded to adopt the federal Constitution in 1788 on the grounds that that sovereignty would hardly be affected by the proposed confederation.

With all the emphasis that is normally placed on the Constitution’s Framers, we are apt to neglect the importance of the ratifiers, for it is they whose interpretation of the Constitution – and in particular, the precise nature of what they believed they were getting into – is of ultimate importance. And here is the heart of Gutzman’s argument.

At Virginia’s ratifying convention, the concern was raised that phrases like “general welfare” could be cited by ambitious politicians who wanted to exercise powers beyond those outlined in Article I, Section 8 of the Constitution. Federalist Edmund Randolph, who had been Virginia’s attorney general for the past decade, assured everyone that his fears were unfounded, for all rights were declared in the Constitution to be “completely vested in the people, unless expressly given away. Can there be a more pointed or positive reservation?”

In other words, this was a strictly limited and federal government.

George Nicholas, who would become Kentucky’s first attorney general, explained:

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Randolph and Nicholas belonged to the five-man committee that was to draw up Virginia’s ratification instrument. They were in a unique position to articulate the understanding that would govern Virginia’s ratification.

Virginians kept this limited view of the Constitution and the federal Union very much in mind into the 1790s. Disturbed by Alexander Hamilton’s financial program, particularly the federal assumption of state debts, Patrick Henry drafted a resolution for the Virginia legislature in which he borrowed from the language of the assurances of Randolph and Nicholas that the federal government would have only those powers expressly delegated to it. The House passed it that day, the Senate six weeks later.

Shortly after Henry drafted his resolution, a General Assembly committee issued a report about the Washington Administration’s policies, which it found alarming. It declared (borrowing from Randolph and Nicholas) that the states were “contracting parties” whose rights were “sacred.” It insisted, echoing Randolph, that “every power not granted [to the federal government] was retained” by Virginia.

What this means, Gutzman explains, is that

Nicholas and Randolph’s explanation of the Constitution, and thus of the significance of Virginia’s ratification, had come to be seen as completely authoritative by the overwhelming majority of Virginia’s political leadership. As in the Imperial Crisis and the Confederation period, Virginians conceived of their interstate union as precisely a federal union, a union among parties that were somehow on an equal footing (as Nicholas had put it, thirteen contracting parties). Virginia, not America, remained the primary political unit, the United States Government a convenience.

Virginians continued to draw out the implications of these views over the course of the 1790s. According to John Taylor of Caroline, the great Virginian political pamphleteer, “The confederation is not a compact of individuals; it is a compact of states.” It was therefore the responsibility of the state legislatures to monitor the federal government and, if necessary, to prevent the enforcement of laws that violated the Constitution.

Constitutions are violated, Taylor said, and it would be absurd to expect the federal government to enforce the Constitution against itself. If the very federal judges the Constitution was partly intended to restrain were the ones exclusively charged with enforcing it, then “America possesses only the effigy of a Constitution.” The states, the very constituents of the Union, had to do the enforcing.

So by the time of the Virginia and Kentucky Resolutions of 1798, whose doctrines of interposition and nullification held that the states could refuse to enforce any federal law they considered unconstitutional, there was nothing new or unusual about such a view. It was merely the logical implication of assurances by Federalists at the ratifying convention, assurances that had dominated Virginia’s constitutional thought in the ensuing decade.

Those resolutions, in other words, “floated like leaves on the stream of the Virginia constitutional tradition of Jefferson’s A Summary View of the Rights of British America, Richard Bland’s An Inquiry into the Rights of the British Colonies, John Taylor’s pamphlets of the 1790s, and the Richmond Convention’s instrument of ratification (as explicated by George Nicholas and Edmund Randolph).” In form and content they belonged to the tradition of Patrick Henry’s Stamp Act Resolves and his General Assembly Resolution of 1790.

Historians had sometimes claimed that Jefferson, the anonymous author of the Kentucky Resolutions, hastily devised nullification as an ad hoc response to the Alien and Sedition Acts’ assaults on civil liberties. But as Gutzman shows, nullification, Jefferson’s proposed remedy, was in fact the culmination of a decade’s worth of Virginian political thought traceable to the ratifying convention. There was nothing ad hoc about it.

The principle of local self-government and against interference from distant central authorities was central to Virginian political thought both before and after the War for Independence. This is a key point of continuity between late colonial Virginia and the Virginia and Kentucky Resolutions of 1798. “As during the Imperial Crisis, so after the enactment of the federal Constitution, Virginians put their state first and the distant authority they had erected for their state’s convenience – formerly in Great Britain, now in the federal capital – somewhere down the list.”

Now if someone were to try to use this history as an argument in support of states’ rights today, or more generally on behalf of the compact theory of the Union, one can imagine a predictable response: Virginia was only one state, and its ratification debates do not authoritatively bind others in their own interpretations of the Constitution and the nature of the Union.

Gutzman has anticipated this reply, and has elsewhere answered it – persuasively, to my mind. Since Article II of the Articles of Confederation declared the states (including Virginia) to be sovereign, and since the delegates to Virginia’s ratifying convention explained to the people of Virginia that their state was one of thirteen parties to a compact from which they would be exonerated if it exceeded its delegated powers, then how could other states lack such a status themselves? If we accept the co-equality of the states as a constitutional principle – that is, some states cannot have more or different rights than others – then no other conclusion seems to follow, even if other states may have understood the nature of the Union differently at the time they entered.

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In light of all this, one can imagine Gutzman’s opinion of the centralizing John Marshall, but Marshall figures little in this book, which focuses primarily on Virginia’s experience rather than on the Union as a whole. For Gutzman on Marshall, see his excellent book The Politically Incorrect Guide to the Constitution.

In short, Virginia’s American Revolution is not only an invaluable contribution to the scholarly literature, but it is also a treasure trove for those who would recapture the original American republic.

Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.

Copyright © 2008 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

“Experience [has] shown that, even under the best forms [of government], those entrusted with power have, in time and by slow operations, perverted it into tyranny.”
–Thomas Jefferson, 1779

In the aftermath of 9/11 the Bush administration and many Democrats crossed a constitutional Rubicon. By both presidential directives and legislation, constitutionally protected rights have been restricted and/or abolished, and the constitutionally mandated ‘separation of powers’ between the executive and legislative branches of government has been erased by presidential fiat.

While claiming terrorists ‘hate us because of our freedoms,’ Bush’s government has spied on citizens without warrants, issued legal memos justifying torture, usurped the power of  the governors and instituted direct presidential control over the National Guards of the 50 states, and threatened Congress with martial law. The result has been, with the Democratic Party’s acquiescence, that the Republic is comatose, if not on its last breath.

Few Americans today understand the concept of ‘separation of powers,’ and fewer still are willing to defend it during times of crisis, whether real or manufactured. Yet, it may help to remind them that James Madison, the author of the Constitution and president of the United States, said he had structured a system to be run by devils, where they could do no harm.

In doing so, Madison did not rely on the self-proclaimed good intentions of politicians but on historical experience.     The U.S. has certainly had its fair share of these devils, yet the last eight years have seen not only devils but a plethora of political cowards who, abjuring their oath of office to defend and protect the Constitution, have allowed men to act as tyrants.

According to Suetonius, a Roman historian, Julius Caesar, upon crossing the Rubicon and plunging the Roman Republic into civil war, said, “The die is now cast!” For Rome it was a point of no return – the definitive end of the Republic and the beginning of the Empire. Likewise, the die has now been cast for the American Republic, and the Democrats, who control both the presidency and the Congress, have critical constitutional decisions to make.

Which direction will the Obama administration choose? Will it recross the Rubicon and restore the Republic, or will political expediency, bolstered by a real or a contrived crisis, mean the end of America’s democratic experiment?

Given statements by former Secretary of State Colin Powell and Vice-President Joe Biden, who have forecast a serious national security incident during the initial months of Barack Obama’s presidency, there is only one probable conclusion. Of course, they will stand up for the Constitution and the Republic – when donkeys fly.

Brad Berner [send him email] formerly taught at Arizona State University and is currently teaching at Moscow State University, Moscow, Russia. He is the author of The Spanish-American War: A Historical Dictionary, The World According to Al Qaeda, Jihad: Bin Laden in His Own Words, and numerous articles on political and historical subjects.

If you reflect back on how the institutions of governance grew in America, from 1620 to the present, you will see that National Government grew into its present level without much public support.  The settlements starting in New England, as well as Jamestown, were small and managed more from a town hall perspective than any formalized institution.  Every hamlet, town and county was an almost informal, non-national government.  None of them existed as the means for special interests to capture the loyalty of some inhabitants, nor was there any treasury worth plundering.

They existed mainly for peacekeeping and settling civil disputes.  Town and hamlets wrote their own laws or ordnances to establish behavioral boundaries acceptable to the majority of citizens.  On occasion, when special interests did gain excess power, or criminals were more powerful than the peacekeepers, vigilante groups formed by citizens corrected those conditions.  Each colony acted as its own governing institution as it related to currency, infrastructure and relations with colonies and nations outside of its boundaries.

In every colony, individual freedom, private property and free commerce existed, with the exception of slavery in some of the Southern colonies, introduced by the Crown in Jamestown.  The unification of the thirteen original colonies grew because of the actions of the British, in their moves to reinstate Crown powers where it had all but disappeared through neglect. A Colonial Congress established by representatives was to deal with common colonial causes. As tensions between colonists and King grew, unity increased, until open rebellion began and the Articles of Confederation were adopted.

The Articles provided the official naming of the Union of Colonies, now States, as the United States of America.  The Second Article, again reiterated in the 10th Amendment to America’s second constitution, said; “Every state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

Article III says these states enter into “a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding them to assist each other, against all force offered,” mentioning attacks by trade as well as war. From that point on, the Articles describe what a State may not do in direct dealings with other nations, except in unison as agreed in the Congress.  Appointments and committees, under the guidance of an annually elected President, would manage the National government formed by the Articles. This fit Jefferson’s idea of a political organization national in foreign affairs and non-national in domestic affairs.

Following the successful separation with Britain, and flush with a pride in flag and nation, many notable personages sought an organization both national in foreign affairs as well as national in domestic affairs.  The Federalists used their newly gained respect to call for a new constitution to create a central government, which, though not foreseen by many, would ultimately eclipse the role of state and local governments.

Men like Madison and Jefferson did see the possibilities of centralization of power, and moved quickly to get a commitment to a Bill of Rights appended to the Constitution at the sitting of the first congress.  If you want to know how rapidly power would have moved to the National Government, look at the Sedition Act, passed even before the ink had dried on the First Amendment guaranteeing free speech.  The Federalists ignored the Bill of Rights and the intent of the Constitution.  In 1800, they paid the price and lost their grip on government, appearing later as the new Democratic Party in Jackson’s time.

The Jefferson-Madison Republicans wanted nothing to do with a powerful central, national government, preferring states and counties as the primary seats of government. They knew that special interests and factions would swarm toward a distant government with a growing treasury.

Were they correct?  All you have to do is look closely at our National Government today, with special interests writing laws to suit their own needs, and hoards of citizens with their hands out, and votes promised, for special awards from the treasury.  The Federal Government is now a fully corrupted government serving the interests of the few, paid for by the wealth of the many.

Traditional Republican voters, since the days of Barry Goldwater, have fought for the election of conservative candidates pledged to reverse the direction of the National Government.  Those elected in the 21st century have, for the most part, double-crossed their voting base and joined with the free-spending, high-taxing Democrats who serve the narrow special interests of treasury raiders. The year 2008 may be the conservative’s last chance to turn the tide.