Nullification isn’t about groveling before politicians and judges to get a few scraps of liberty. Nullification is about the people standing up to the federal government and simply saying no. “These are our rights. This is what the constitution limits you to. You may go no further.”

Nullification is the only way that someone outside the federal government, which always wants as much power as it can possibly have no matter who is running it at any given time, can have a say as to what’s constitutional and what isn’t. It’s the only way that the People, instead of their would-be masters in Washington can have a say as to how much liberty they’ll be able to enjoy.

Thanks to Tom Woods and his book, more and more people are waking up to the reality that Presidents, Congress and judges aren’t going to fix things for us. Ever. And, more and more people are looking to nullification as a potential solution to the government’s ever-increasing intrusion on our lives.

Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.

EDITOR’S NOTE: Kevin Gutzman will be a featured speaker at Nullify Now! Austin. Get tickets here or by calling 888-71-TICKETS

*******

Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the 21^st Century (Washington, DC: Regnery Publishing, 2010), 309 pp., Appendix.

Thomas E. Woods, Jr., author of such smashes as Meltdown, The Politically Incorrect Guide to American History, and The Church and the Market, has done it again. After reconciling Catholic teaching and free-market economics and after explaining how violation of free-market principles brought on the current depression, Woods here takes on the central issue of our day: what to do about out-of-control government.

Under today’s constitutional law, the “Federal” (really now national) Government can do anything it wants. Nancy Pelosi literally laughs at the implication that it cannot. For anyone who knows history and loves liberty, this is a worrisome situation.

What to do?

Woods’s answer is to dust off the Jeffersonian tradition of nullification. Nullification lays out the argument for nullification’s constitutionality, describes historic and contemporary instances in which the doctrine has been and is being employed, and advocates that it be used more widely today. Finally, in a very useful appendix, Woods provides some of the classic nullification documents from days gone by. The appendix serves both to arm the reader with pro-nullification arguments and to illustrate the variety of circumstances to which it has been applied.

In his first chapter, “The Return of a Forbidden Idea,” Woods describes the situation we now face as “the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government.” (p. 19) By reference to the Bring the Guard Home movement, Firearms Freedom Acts, and medical marijuana acts that have been considered and/or adopted in literally dozens of states these past few years, Woods shows that there is an impulse afoot in America to restore the constitutional system. Maybe elite academics have agreed among themselves that the Constitution gets in the way of their bottomless urge to do good, but the people never agreed. They are beginning to bestir themselves from a long constitutional slumber.

Nullification, Woods shows in his second chapter, is the “rightful remedy” to the illness of tyranny. And that is the right word to denote the Federal Government in the current situation: “tyranny,” the ancient Greeks’ word for unconstitutional rule. Note that a tyrant need not be malevolent, he merely must rule unconstitutionally — as the Federal Government does today.

Wordsmith Woods calls the question of the relationship between the government’s behavior and the Constitution’s allocation of powers “the Great Unmentionable.” (p. 21) Federal and state officials alike commonly ignore the question of the Constitution. It is the great and powerful Oz, to be feared despite its powerlessness.

Yet, resignation in the face of usurpation is not the American tradition. Rather, the people who made the Revolution insisted that their colonial legislatures had the primary role in their self-governance, and that the British government shared governmental functions only for the colonists’ convenience. This view was most clearly developed in Virginia, where Richard Bland, Thomson Mason, Landon Carter, and finally Thomas Jefferson elaborated it in the 1760s and 1770s.

This Virginia doctrine, which we can join Woods in calling “Jeffersonian,” did not change with the coming of independence, the Articles of Confederation, or the US Constitution. Those people, and their counterparts in other states, insisted that the Articles affirm that their state retained its sovereignty. They also wrung from nationalists in the Philadelphia Convention a document that retained the federal — not national — nature of the government on which they had long insisted.

That is why in state after state, leading Framers and Ratifiers such as the governors of North Carolina and Virginia and the two chief authors of The Federalist promised that the new government would have only the powers “expressly delegated.” It is also why the Virginia General Assembly protested the adoption of laws that Congress had not been expressly delegated power to adopt from the very first Congress.

The first decade under the current constitution saw one party, the Federalist Party, attempt to remake the US Government into a national government. Like John McCain and Russ Feingold today, John Adams and his allies in Congress wanted to regulate citizens’ criticism of federal officials. In response, Jefferson and his Republican allies promulgated legislative resolutions, the Virginia and Kentucky Resolutions of 1798, setting out their understanding of the limited nature of the delegations of power the states had made in creating the Federal Government. In case the new government tried to grab more power, those two states said, the states “have the right, and are in duty bound, to interpose.” Kentucky, in answering criticisms of its first set of resolutions, adopted a second set the next year saying that in case of unconstitutional and dangerous federal policy, “a nullification … is the rightful remedy.”

The great contribution of Nullification is to show how the Jeffersonian reading of the Constitution resonates today. The short of it, as Woods explains in Chapter 3, “American History and the Spirit of ’98,” is that this Jeffersonian reading of the Constitution was long the majority position in American politics. In fact, from the Virginia and Kentucky Resolutions’ promulgation in 1798 to Franklin Roosevelt’s decision to renege on his 1932 campaign pledges of limited government, most federal elections were won by parties standing for the Jeffersonian view.

Woods is at his acerbic best in describing the campaign of distortion and slander Establishment figures now maintain against the idea of nullification. The distortion lies in their inaccurate insistence that Jefferson and Company invented nullification in 1798 in response to specific circumstances, when in fact the resolutions of 1798 were merely the latest iteration of a long-standing tradition; the slander lies in their attempt to tie all invocations of the right of nullification to the defense of slavery.

Not only was slavery not the issue in 1798, but it was not the issue when nullification was employed in 1809, or when it was brought up in the 1810s, or when it was used in the 1820s, or when it was invoked in the 1830s. Slavery was the issue when states were nullifying in the 1850s, but the nullification was undertaken on behalf of supposed fugitive slaves by abolitionists in those cases. Woods does a masterful job in explaining how nullification has been used in behalf of free elections, free speech, and freedom of the press (1798-1801), against conscription (during the War of 1812), in behalf of free trade (in the 1820s and ’30s), and in favor of due process for blacks.

When Woods uses the word “nullification,” he does not necessarily have in mind formal legislative resistance to federal policy in the mode of the Carolina Nullifiers of 1832-33. Rather, he is thinking of a range of less confrontational measures, from simple refusal by state authorities to respect federal edicts, through adoption of state laws in conflict with federal policy (such as medical marijuana laws), to adoption of state laws claiming control over areas of policymaking that Congress has long since arrogated to itself (such as Firearms Freedom Acts).

As he notes in his last chapter, “Nullification Today,” Woods realizes that these ideas will jar people who are trained in “constitutional law.” After all, he says, that “law” takes as its starting point the assumptions that Congress can do essentially whatever it wants and that state Executive and Judicial departments are more or less subordinate to their federal counterparts. Yet, he again reminds, Thomas Jefferson, James Madison, and a host of other eminent philosopher-statesmen of the Revolution and Early Republic never understood things that way.

So far as they were concerned, “constitutional law” that conflicted with the people’s understanding at the time they ratified the Constitution was not law at all. One did not have to wait for a court ruling to ignore it, because for all intents and purposes it did not exist.

How could that be? Remember: the Revolution was fought for home rule through legislative elections. Only the powers “expressly delegated” to the new-fangled Federal Government made exceptions to that rule. Beyond that, Congress could not go, and if it tried, its effort was unavailing.

For over a century, Woods says, the Federal Government has grown and grown. Electing new officials has not checked that growth, even when those officials were authentically dedicated to reining in the government’s growth. To those who might think of nullification as a risky strategy, Woods’s response is that nothing else is working. Nullification is a tool in the bag of those who want to dam the river of government expansion. It has been used before, and to good ends. It is being used now, for minor purposes. Woods hopes to see it actually implemented in states that understand Obamacare and other such federal initiatives to be unconstitutional. To judge by what is coming out of legislatures these days, perhaps he will get his wish. As he puts it, “We have been helpless spectators long enough.” (p. 143)

Copyright © 2010 Campaign for Liberty.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.

In spite of the fact that the Constitution was recently read in its entirety (minus a few sections and amendments), for the first time in the history of the House, several senior Republicans must have either been absent or just weren’t paying attention to what they were hearing. (No) Surprise! 

Less than three months after the historic reading, they were back to business as usual — the business of usurping more power from the states and consolidating it in Washington, DC.  House Judiciary Chairman Lamar Smith (R-Texas), Homeland Security Chairman Peter King (R-N.Y.) and Crime, Terrorism, and Homeland Security Subcommittee Chairman James Sensenbrenner (R-Wisc.) sent a letter to Department of Homeland Security Secretary Janet Napolitano,  demanding she not extend the May 11 deadline for the states to comply with the federal Real ID Act.

In spite of the hysterical warning contained in their letter, the Obama administration wisely decided to do for a third time what the Bush administration was forced to do the first time when many state governments simply refused to comply with the act’s unconstitutional requirements — extend the deadline again.

Anticipating that the Obama administration would again back down to avoid conflict with the states, the letter asserted that the recent arrest of a terrorist suspect in Texas, “..underscores the importance of the immediate implementation of REAL ID.  Any further extension of REAL ID threatens the security of the United States.  We cannot understand how you could even contemplate a further delay – a delay that places American lives at risk.”

Homeland Hypocrisy
The real but greatly exaggerated danger of terrorism is a tried and true method of scaring Americans into giving the federal government a free pass to circumvent the Constitution. But how ironic that this time, one of the GOP chairmen who sent this letter was none other than Homeland Security Chairman Peter King! If you’ve heard how King spent decades raising money for the US-based Irish Northern Aid Committee (NORAID) and speaking at their events, you’ll understand.

NORAID, the US Justice department long suspected, was merely an arm of the Provisional Irish Republican Army (PIRA), and both British and American intelligence reports seem to support that suspicion. In a recent article about King and his involvement with NORAID, investigative journalist William N. Grigg brought to many people’s attention what Ed Maloney, well known for his coverage of the PIRA, wrote in the New York Sun back in 2005:

“During his visits to Ireland, Mr. King would often stay with well-known leaders of the IRA, and he socialized in IRA drinking haunts. At one of such clubs, the Felons, membership was limited to IRA veterans who had served time in jail.”

So the King who demands that Real ID be shoved down our throats to supposedly protect us from Islamist terrorists, is the same King who raised funds for NORAID, which almost certainly went to support another terrorist organization that murdered Americans abroad. The 1983 bombing of Harrods department store in London, was carried out by the PIRA and killed six people and injured 90 others. Among the dead was a 28-year old American named Kenneth Salvesan. And among the injured was another American named Mark McDonald, whose wounds were very severe. Margaret Thatcher wrote to Ronald Reagan immediately after the bombing to demand that he crack down on NORAID, the organization that King supported for so long.

Why States Must Continue to Nullify the Federal Real ID Act
Besides the hypocrisy that usually accompanies homeland security smoke and mirrors, is the fact that nowhere in the Constitution is the federal government authorized to set standards for state driver’s licenses and ID cards. Of course today’s state issued licenses and ID cards didn’t exist when the Constitution was drafted, but both before and after its ratification, the states had the authority to create such documents, since they retained all powers not delegated to the federal government by the Constitution that were not prohibited to them by it (see 10th Amendment). If members of Congress are truly convinced that federal standards for state issued ID cards are necessary for the security of the United States, then they should propose a constitutional amendment. Of course, the vast majority of the people who make up our so called “federal” government have long behaved as if they’d never heard of the Constitution, or what Jefferson called it’s cornerstone — the 10th Amendment.

And what about the enormous costs associated with Real ID? While it’s true these outrageously expensive mandates have again reared their ugly head right at a time when many states face a severe budget crisis (the primary reason given by DHS for the most recent extension). Even if big budget surpluses were the norm among states these days, it would be no excuse for state governments to shirk their duty by submiting to an act of usurpation like Real ID. In spite of the decision many House Republicans have made to indulge in situational constitutionalism (the obnoxious habit of supporting the Constitution only when it is likely to result in a policy outcome one happens to favor), a far greater number of Republicans and Democrats in state governments across the country have chosen a more honorable path — that of state interposition and nullification.

Given that Real ID is both an expensive and unconstitutional act that threatens privacy, freedom and federalism, 25 states over the last several years have, according to the Tenth Amendment Center’s legislative tracking page:

“..passed resolutions and binding laws denouncing and refusing to implement the Bush-era law..While the law is still on the books in D.C., its implementation has been ‘delayed’ numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

James Madison, the chief author of both the Constitution and the Bill of Rights wrote in 1798 that when the federal government exercises powers not authorized by the Constitution, the states, “..are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Many state officials have faithfully carried out Madison’s admonition by rendering the Real ID Act null, void and without force within their state’s boundaries.  Now it’s up to us, the people of the several states, to remind them often, between now and the next deadline in January of 2013,  that they need to keep it that way.

Slavery had been prohibited in Wisconsin under the 1787 Northwest Ordinance, according to which our state and territory were formed.  However in 1850 the Federal Government passed the Fugitive Slave Act which forced citizens to return any captured slaves to their owners.  This caused a great stir within the growing abolitionist movement who felt they were being forced to comply with a law to which they were morally opposed.

Between 1842-1861 over a hundred slaves appear to have been helped to escape to Canada by Wisconsin citizens.  In 1843 Lyman Goodnow helped the first slave escape from Wisconsin by driving Caroline Quarlls in 1842.  Caroline was one of the first recorded to escape by way of the underground railroad.  She escaped from St. Louis on the 4th of July and by way of the Mississippi arrived in Alton, Illinois.  From there she traveled to Waukesha by way of stage and ultimately she was driven by a Waukesha man around Chicago, through Indiana and across Michigan, where she escaped from Detroit into Canada.  These were changing times in the nation.  The Abolitionist movement was growing and in 1851 Harriet Beecher Stowe gained fame by publishing “Uncle Tom’s Cabin”.

In 1852 Joshua Glover also escaped his owner in St. Louis, Missouri and made his way through the underground railroad and sought asylum in Racine in the early part of 1854, where he found work in a mill.  A $200 reward was offered and published in the St. Louis Missouri Republican (newspaper); May 27, 1852, page 3, column 7, which appears to the right.  Joshua’s Missouri master, B. S. Garland, learned of his whereabouts, procured a US District Court Order and proceeded with two Marshall’s to Glover’s shanty.  Accounts differ on the events of Joshua’s capture.  One account says that he was caught playing cards with another black man.  Regardless, he was beaten severely with a club and had a pistol pointed at his head and was handcuffed.  In the words of Sherman M. Booth, who we will get to shortly, Glover ”was knocked down and handcuffed, dumped mangled and bleeding into a democrat wagon, and with a marshal’s foot on his neck taken to Milwaukee and thrust into the county jail.”

When word of this reached the public, there was immense interest.  Hundreds of people arrived by boat from Racine and other members of the abolitionist movement crowded around the courthouse in Milwaukee.  Reports have Sherman M. Booth, the editor of The Free Democrat Garland riding up and down the street on a white horse proclaiming to the crowds, “Freemen, to the rescue!”  Mr. Booth later denied that he made that statement.  He did admit to saying the following, “All freemen who are opposed to being made slaves or slave-catchers turn out to a meeting in the courthouse square at 2 o’clock!”

This occurred on a Friday and government authorities refused to take any action until Monday.  Joshua Glover was left beaten and bleeding in his cell.  There was intense pressure from the crowds and cries for that a writ of habeas corpus and a trial by jury be afforded to Joshua Glover.  A local judge issued a writ, but federal officials refused to recognize it’s validity.  The crowd insisted that they be given the keys to the jail and were refused.  This led to a group of approximately 20 men battering down the doors with a large piece of timber.  They freed Joshua from his cell.  Bringing him outside, they were ringed by approximately 1000 protesters.  they went from Wisconsin street to East Water street, and down East Water street to what was then called Walkers Point bridge.  When they arrived there, John A. Messenger, a Democrat asked what was going on.  Upon explanation, he took Joshua into his buggy and with federal Marshall’s and slave hunters in pursuit, he took back roads and changed course many times, heading westward until they reached Waukesha.  Messenger was deathly afraid of being recognized during the escape.  He was a staunch Democrat and knowingly had violated the fugitive slave act.  He took Joshua to the home of W. D. Bacon who was an Abolitionist, he went direct to his house, which is where the Spring City Hotel is now located, in the village of Waukesha.  Joshua stayed there until he could be transported to Racine by Waukesha editor Chauncey Olin who recalls the events in his memoir, and eventually to Canada where he lived as a free man until passing in June of 1888 in Ontario, Canada.

While it was indeed a victory for Joshua to be freed and liberated to Canada, the story does not end here for the people who came to his aid.  Indeed the legal struggles were just beginning.  There was a great deal of litigation to follow.  The sheriff of Racine county arrested B. S. Garland as well as those who had aided in the capture of Joshua Glover on the charge of assault.  Garland obtained his release on a writ of habeas corpus during the time that Joshua was en route to Canada.

The federal authorities charged Booth with assisting Glover’s escape. Booth was arrested and a grand jury found a bill of indictment against him and two others. He appealed to the Wisconsin Supreme court for a writ of habeas corpus.  Booth was released on bail but two months later, at his own request, he was delivered to the U.S. Marshal. Booth’s surrender was calculated to bring a test case in the state courts challenging the constitutionality of the fugitive slave law. On the day after the surrender, Booth’s attorney, Byron Paine (later a justice of the Wisconsin Supreme Court), successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus.

The learned judges read long opinions declaring the Fugitive Slave law of 1850 unconstitutional.   In the meantime, U.S. Attorney General Kushing had decided to appeal the Wisconsin decisions to the U.S. Supreme Court. Two writs of error were subsequently issued by U.S. Supreme Court Chief Justice Roger Taney directing the clerk of the Wisconsin Supreme Court to send the records in both the 1854 case (Ableman v. Booth).

Angered by that opinion and unwilling to accept the logic of Chief Justice Taney who had written the infamous Dred Scott case, the Wisconsin Legislature passed a series of resolutions denouncing the actions of the U.S. Supreme Court as “an arbitrary act of power … without authority, void and of no force,” and urging “positive defiance” by the states as the “rightful remedy.”

That is our history Wisconsin.  We have long supported the Tenth Amendment and as it saved those who rescued Joshua Glover it can save us again today. 

I urge you to support your local Tenth Amendment Center and join us in a common cause of restoring our liberties and curtailing the overreach of the federal government.

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

EDITOR’S NOTE:  Tom Woods will be a featured speaker at upcoming Nullify Now! tour stops in New Hampshire, Austin, and Los Angeles..   Get your tickets at http://www.nullifynow.com or by calling 888-71-TICKETS

“It’s not enough to think outside of the box. The box needs to be crushed to the ground and set on fire…”

www.nullifynow.com
www.tomwoods.com
www.statenullification.com

Originally published in the Los Angeles Daily News on 02-15-11

Nullification. The word evokes images of white-haired men with tri-fold hats, holding up signs about the “evils” of Obamacare and socialism.

States around the country are considering laws to reject federal laws on health care, guns, Environmental Protection Agency regulations and more. The pundits scream “racism,” the legal experts cite the “supremacy clause,” and the entire country – left to right – just might be missing the point.

As executive director of the Tenth Amendment Center, the organization which created the “Health Care Nullification Act” introduced in more than 10 states, I see many people who fit this stereotypical “tenther” image, too.

Whenever I speak at “Nullify Now!” events around the country, the crowd is predominantly these folks. While a few progressives occasionally join the protesters, one doesn’t find too many 20-somethings with Che T-shirts attending such events.

While the rhetoric coming from many on the right these days includes words like “nullification,” and “state sovereignty,” it has been the left, not the right, which has been successful in putting these ideas into practice. And, California has been at the forefront since the beginning.

When Californians voted to approve Proposition 215 to allow medical marijuana, the word “nullification” was not part of the argument, but it most certainly was the result. Opponents often cited the Constitution’s “supremacy clause,” saying the state had no authority to violate federal marijuana laws. But, Californians voted to violate those laws by the millions. And, when the Supreme Court ruled in the 2005 Gonzales v. Raich case that state-level medical marijuana laws were, in essence, illegal, dispensaries around the state didn’t start closing shop.

In fact, by 2005, there were nine other states that had joined California in passing medical marijuana laws. After the supremes told the country that such laws were a big no-no, how many were repealed? Zero. And since then, another five states – most recently, Arizona – have joined up.

Think about that. There are now 15 states actively defying Congress and the Supreme Court – and they’re getting away with it. This, more than anything else, is what nullification is: any action which results in federal law(s) being rendered nearly unenforceable.

Green Door Hydro, Los Angeles

When I took a bike ride around my neighborhood in downtown L.A. the other day, I didn’t find a single Drug Enforcement Agent shutting down an arts district grow shop. A recent trip to Venice confirmed my hunch that there are plenty of businesses and individuals openly nullifying federal laws with dispensaries galore. A visit to the Bay Area last fall verified the same.

But yet, how often does one hear a legal scholar or a political pundit spending time and energy on how these pot-dealers and pot-smokers are bringing chaos to America?

How often do you hear that this active nullification of federal drug laws is done by people who hate President Obama for being black? I’ll assume you’ve that heard just about as much as I have – never.

Medical marijuana isn’t the only issue where Californians have taken a lead in standing up to the feds. In 2006, when the Congressional Research Service released a report on “sanctuary cities” around the country, California was at the head of the pack, with more major cities on the list than any other state in the country.

Oddly enough, I haven’t heard about Washington, D.C., threatening to withhold highway funds. The national guard hasn’t been sent in to force these cities to comply with federal immigration laws. But yet, that’s what some claim will happen if health care nullification laws are passed today.

I doubt it. If today’s nullification proposals follow in the path of the left’s nullification of federal drug and immigration laws, it’s quite possible we’ll see the same kind of results. The feds backing off.

The real question, of course, is this – will gay marriage advocates in Maine, health care nullification advocates in Idaho, gun rights activists in Oklahoma, and marijuana advocates in California ever realize that they’re actually on the same side?

They likely don’t agree on specific issues, but they agree with their actions; the most difficult and divisive issues need to be dealt with close to home, in their states. Either way, it’s good to be in California, where nullification is alive and well.

I was thrilled to see J.B. Williams report in NewsWithViews.com that the State of Montana has a broad-based State nullification bill currently proposed in its legislature. Derek Skees (R-Whitefish) is the State legislator who has introduced this much-needed legislation.

See the story here

The fact is, Skees’ State Nullification bill is only one of several outstanding freedom-first bills that is currently before the Montana legislature. I urge readers to go to PolyMontana.com to look at the many other fine pieces of pro-freedom legislation pending in the Montana State legislature:

http://polymontana.com/legislators/freedom-bills/

Unfortunately, one of those very fine bills has already been defeated: the “Sheriffs First” bill sponsored by Senator Greg Hinkle (R-Thompson Falls). This bill is long overdue and absolutely necessary to prevent federal usurpation of State and local law enforcement. That the Montana legislature failed to pass this bill indicates just how necessary it is to elect State legislators who truly understand constitutional government. I urge readers to read the following defense of the Sheriffs First law, written by my son, Constitutional Attorney Tim Baldwin:

http://tinyurl.com/4aclefs

Look through the list of the other freedom bills presently before the Montana State legislature and one will instantly recognize the potential for this State to stand at the “tip of the spear” in the reclamation and restoration of State sovereignty, freedom, and independence. (Plus, it reinforces why my family and I made the life-changing decision to move to this beautiful and wonderful State.)

For example, there is a bill to nullify federal health care laws; a bill to eliminate the misapplication of the 14th amendment to the US Constitution; a bill to nullify the Endangered Species Act; a bill to authorize permit-less Concealed Carry; a bill to transfer management of certain federal lands; a bill to provide the State eminent domain authority for federal lands; and, of course, the Sheriffs First act, which would have required the Sheriff’s authorization for federal law enforcement agencies to conduct arrests, searches, and seizures.

I would dare say: if you are a freedom-minded individual, goose bumps ran up your spine just from reading the above summary. I got goose bumps simply writing about it. Can one imagine the kind of freedom that would be unleashed in this great State should even a handful of these bills actually become law? And think of the numbers of other State legislatures that would quickly follow suit (especially here in the West) should any State legislature pass and a State governor sign these kinds of freedom protections into law!

This is why I keep insisting that, if freedom has a chance to survive in these United States, the American people must get their eyes off of Washington, D.C., and start focusing on their individual states. The authority and power to properly defend liberty has always rested with the states. I’m not saying we should not be concerned about who our US representatives and senators are–or who is elected President. I am saying, however, that freedom will never be restored from inside the Beltway. It is State independence, resolve, and nullification that will ultimately preserve and protect our liberties. And, as the creators of the US Constitution acknowledged, State nullification is absolutely requisite to freedom’s survival.

And, fortunately, Montana is not the only State with freedom-loving men and women in its legislature. I am hearing of lawmakers in states such as Oklahoma and Virginia (and several others) who are introducing similar freedom bills in their respective State legislatures. The question is, as always, will the people of these states get behind their brave legislators and help them get these freedom bills passed? If they are preoccupied with watching the major television network news channels (that focus almost entirely on national and international politics), they will not even know that these freedom bills are being proposed (most local media ignore them, too), and, therefore, will be totally inactive and ineffective in helping to restore the freedoms they claim to love.

I repeat: if freedom is to have a new birth in America, we must stop focusing on Washington, D.C., and start focusing on our individual states! I cannot overstate it: liberty will be won or lost at the State level!

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*If you appreciate this column and want to help me distribute these editorial opinions to an ever-growing audience, donations may now be made by credit card, check, or Money Order. Use this link:

http://chuckbaldwinlive.com/home/?page_id=19

(c) Chuck Baldwin

Much like last year’s health insurance bill, the recently passed Food Safety and Modernization Act (or “Food Patriot Act”), is unconstitutional for one simple reason: the federal government lacks the authority to regulate economic activities that do not cross state lines. 

But try explaining that to the Food and Drug Administration, which, in concert with the Department of Homeland Security, will now have greatly expanded power to smother small farmers and local food producers in bureaucracy and red tape. 

Not to mention the ability to enforce disturbingly authoritarian doctrines on the American people such as:

“There is no absolute right to consume or feed children any particular food.”

“There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds.”

“Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.”

“There is no fundamental right to freedom of contract.”

Every single one of the above arguments (made by the FDA in response to a recent lawsuit) is diametrically opposed to the ideas of individual liberty on which America was founded, and is clearly contradicted by the Ninth Amendment to the U.S. Constitution, which states:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Yet, perhaps the FDA is not solely to blame for the logical disconnect between a federal agency’s legal argumentation and the foundation of federal law.

After all, the Supreme Court itself has opined on numerous occasions that there are no constitutional limits on federal power to regulate every aspect of American life under the guise of regulating commerce, state lines and sovereignty notwithstanding. And they’re the ones who interpret what the Constitution means, right?

Ironically, the very premise that the highest court in the land should have such a unilateral final say in questions of constitutionality is based on bad precedent. Chief Justice John Marshall simply fabricated the interpretive authority of “judicial review” in 1803, and flawed logic and legislation, invariably tending toward absolutism, has been heaped atop ever since.

But misreading the Constitution, or perverting it for political gain, does not change the legal force of the original document. To paraphrase Austrian economist Peter Schiff, the Constitution doesn’t need to be interpreted; it’s not written in Chinese. It just needs to be followed.

If federal lawmakers and their alphabet agencies refuse to obey the very document on which their political authority and legitimacy is based, then it is up to state and local governments to pass and enforce laws like the Intrastate Commerce Act (ICA), which explicitly remind the feds where their authority ends.

So far in 2011, legislation has been introduced in Arizona (SB1178), New Hampshire (HB324) and Virginia (HB1438) that defines intrastate commerce as anything produced, mined or grown and used within a given state’s boundaries. Such economic transactions are, by definition, not subject to federal regulation of interstate commerce.

New Hampshire’s proposed law would even go so far as to make it a felony for any agent of the federal government to attempt to enforce unconstitutional regulations in the state.

Thanks to the tireless work of the Virginia Campaign for Liberty, a version of the ICA has passed the state’s House of Delegates by a wide margin two years in a row. But that’s not nearly good enough. Success in the Virginia Senate will require a groundswell of public outrage similar to that which helped get the Health Care Freedom Act passed last year in seven states.

Absent passage of the ICA or similar legislation, there will be nothing to stop the FDA from using the Food Patriot Act to drive family farms across the country out of business; killing jobs in the growing industry of local organic food production, without improving safety at all.

Even if activists do succeed in properly defining interstate commerce, the federal government already operates with such blatant disregard for its own laws that it’s clear the question of state vs. federal power will ultimately have to be decided in the only court that matters anyway: public opinion.

As the people of the Middle East are reminding America, when the governed actively withdraw their consent, even the most repressive dictators are rendered powerless.

The days of relying on the wisdom of black-robed deities in Washington, D.C. are long past. Those gods have failed us. We the People, through our state and local governments, are all that stands now between a power-mad federal tyranny and the future of liberty in our constitutional republic. And time is running out.

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.

EDITOR’S NOTE:  Tom Woods will be a featured speaker at upcoming Nullify Now! tour stops in Cincinnati, New Hampshire, Austin, and Los Angeles..   Get your tickets at http://www.nullifynow.com or by calling 888-71-TICKETS

*******

In January 2011 my book Nullification became notorious when it was linked to a bill that declared Barack Obama’s health care law unconstitutional and therefore void and of no effect in the state of Idaho.  (Other states have been introducing similar bills, but Idaho grabbed the media’s attention.)  Legislators had read it, the news media reported, and while Governor Butch Otter turned down a state senator’s offer of a copy, that was only because he already had one.  He had read it, too.

Naturally, the smear patrol went into overdrive.  Why, this is crazy talk from a bunch of “neo-Confederates” who hate America!  Anyone who has observed American political life for the past 20 years could have predicted the hysterical replies down to the last syllable.

“Nullification” dates back to 1798, when James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions, respectively.  There we read that the states, which created the federal government in the first place, by the very logic of what they had done must possess some kind of defense mechanism should their creation break free of the restraints they had imposed on it.  Jefferson himself introduced the word “nullification” into the American political lexicon, by which he meant the indispensable power of a state to refuse to allow an unconstitutional federal law to be enforced within its borders.

Today, political decentralization is gathering steam in all parts of the country, for all sorts of reasons. I fail to see the usefulness of the term “neo-Confederate” – whatever this Orwellian neologism is supposed to mean – in describing a movement that includes California’s proposal to decriminalize marijuana, two dozen states’ refusal to abide by the REAL ID Act, and a growing laundry list of resistance movements to federal government intrusion. As states north and south, east and west, blue and red, large and small discuss the prospects for political decentralization, the Enforcers of Approved Opinion have leaped into action.  Not to explain where we’re wrong, of course – we deviants are entitled at most to a few throwaway arguments that wouldn’t satisfy a third grader – but to smear and denounce anyone who strays from Allowable Opinion, which lies along that glorious continuum from Joe Biden to Mitt Romney.

Anyone who actually reads the book will discover, among many other things, that the Principles of ’98 – as these decentralist ideas came to be known – were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

When Nullification was released, here’s what I predicted would happen: “If the book’s arguments are addressed at all, they will be treated at a strictly second-grade level. (Official Left and Right agree on more than they care to admit, an unswerving commitment to nationalism being one of those things.) The rest of the so-called reply will run like this: Nullification is a secret plot to restore the southern Confederacy, and Woods himself is a sinister person with wicked intentions, before which all his fancy moral and constitutional arguments are nothing but a devious smokescreen.”  (I went on to make my Interview With a Zombie video to suggest how a typical media interview on the subject might run, and made my first video blog in response to the hysteria over Idaho.)

Since that is indeed what has happened, I’m following up with this point-by-point reply to the standard arguments I knew would be trotted out against the idea.  (My replies to these claims are discussed in much greater detail in the book.)

“Nullification violates the Constitution’s Supremacy Clause.”

This may be the most foolish, ill-informed argument against nullification of all.  It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism.  It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

“Nullification is unconstitutional; it nowhere appears in the Constitution.”

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of 13 states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

“The Supreme Court declared itself infallible in 1958.”

The obscure obiter dicta of Cooper v. Aaron (1958) is sometimes raised against nullification.  Here the Supreme Court expressly declared its statements to have exactly the same status as the text of the Constitution itself.  But no matter what absurd claims the Court makes for itself, Madison’s point above holds – the very structure of the system, and the very nature of the federal Union, logically require that the principals to the compact possess a power to examine the constitutionality of federal laws.  Given that the whole argument involves who must decide such questions in the last resort, citing the Supreme Court against it begs the whole question – indeed, it should make us wonder if those who answer this way even understand the question.

“Nullification was the legal doctrine by which the Southern states defended slavery.”

This statement is as wrong as wrong can be.  Nullification was never used on behalf of slavery.  Why would it have been?  What anti-slavery laws were there that the South would have needed to nullify?

To the contrary, nullification was used against slavery, as when northern states did everything in their power to obstruct the enforcement of the fugitive-slave laws, with the Supreme Court of Wisconsin going so far as to declare the Fugitive Slave Act of 1850 unconstitutional and void.  In Ableman v. Booth (1859), the U.S. Supreme Court scolded it for doing so.  In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act.  Who’s defending slavery here?

“Andrew Jackson denounced nullification.”

True, though Jackson was presumably not infallible.  (Had nullification really been all about slavery, then Jackson, a slaveholder himself, should have supported it.)  His proclamation concerning nullification was in fact written by his secretary of state, Edward Livingston, and that proclamation was, in turn, dismantled mercilessly – mercilessly – by Littleton Waller Tazewell.

“You must be a ‘neo-Confederate.’”

I confess I have never understood what this Orwellian agitprop term is supposed to mean, but it is surely out of place here.  Jefferson Davis, president of the Confederacy, actually denounced nullification in his farewell address to the U.S. Senate.  South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision.

Don’t expect critics of nullification to know any of this, and you won’t be disappointed.

One of the points of my book Nullification, in fact, is to demonstrate that the Principles of ’98 were not some obscure southern doctrine, but at one time or another were embraced by all sections of the country.  In 1820, the Ohio legislature even passed a resolution proclaiming that the Principles of ’98 had been accepted by a majority of the American people.  I do not believe there were any slaves in Ohio in 1820, or that Ohio was ever part of the Confederacy.

“James Madison spoke against the idea of nullification.”

More sophisticated opponents think they have a trump card in James Madison’s statements in 1830 to the effect that he never intended, in the Virginia Resolutions or at any other time, to suggest that a state could resist the enforcement of an unconstitutional law.  Anyone who holds that he did indeed call for such a thing has merely understood him.  He was saying only that the states had the right to get together to protest unconstitutional laws.

This claim falls flat. In 1830 Madison did indeed say such a thing, and pretended he had never meant what everyone at the time had taken him to mean.  Madison’s claim was greeted with skepticism at the time.  People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place?  Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied?  And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time?  Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, forthcoming 2011) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89.  Judge Abel Upshur likewise made quick work of this view in An Exposition of the VirginiaResolutions of 1798, excerpted in my book.

The elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.

In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.

“Nullification has a ‘shameful history.’”

So we are instructed by the scholars who populate the Democratic Party of Idaho.  Was it “shameful” for Jefferson and Madison to have employed the threat of nullification against the Alien and Sedition Acts of 1798?  Was it “shameful” of the northern states to have employed the Principles of ’98 against the unconstitutional searches and seizures by which the federal embargo of 1807-1809 was enforced?  Was it “shameful” for Daniel Webster, as well as the legislature of Connecticut, to have urged the states to protect their citizens from overreaching federal authority should Washington attempt military conscription during the War of 1812?   Was it “shameful” for the northern states to do everything in their power to obstruct the enforcement of the fugitive-slave laws (whose odious provisions they did not believe were automatically justified merely on account of the fugitive-slave clause)?  Was it “shameful” when the Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional and void, citing the Kentucky Resolutions of 1798 and 1799 in the process?

May I take a wild guess that no Democrat in the Idaho legislature knows any of this history?

The “shameful history” remark is surely a reference to southern resistance to the civil rights movement, in which the language of nullification was indeed employed. The implication is that Jeffersonian decentralism is forever discredited because states have behaved in ways most Americans find grotesque.  They are states, after all, so we should not be shocked when their behavior offends us.  But this is apples and oranges.  This outcome was possible only at a time when blacks had difficulty exercising voting rights, a situation that no longer obtains.  Things have changed since Birmingham 1963 in other ways as well.  The demographic trends of the past three decades make that clear enough, as blacks have moved in substantial numbers tothe South, the only section of the country where a majority of blacks polled say they are treated fairly.  It is an injustice to the people of the South, as well as an exercise in emotional hypochondria, to believe the states are on the verge of restoring segregation if only given the chance.  I mean, really.

By exactly the same reasoning, incidentally, any crime by any national government anywhere would immediately justify a world government.  Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under decentralism in the past.

Supporters of nullification do not hold that the federal government is bad but the state governments are infallible.  The state governments are rotten, too (which is why we may as well put them to some good use by employing them on behalf of resistance to the federal government).  We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction?  There is a strong argument to be made that it was precisely the decentralization of power in Europe that made possible the development of liberty there.

This objection – why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again – never seems to be directed against centralized government itself, particularly the megastates of the nationalistic twentieth century.  I rather doubt nullification critics would turn this argument against themselves – by saying, for instance, “Centralized governments gave us hundreds of millions of deaths, thanks to total war, genocide, and totalitarian revolutions.  In the U.S. we can point to the incarceration of hundreds of thousands of Japanese and a horrendously murderous military-industrial-congressional complex, among other enormities.  Our federal government is so remote from the people that it has managed to rack up debts (including unfunded liabilities) well in excess of $100 trillion.  In light of this record, what intellectual and moral pygmy would urge nationalism or the centralized modern state as the solution to our problems?”

“Nullification would be chaotic.”

It is far more likely that states will be too timid to employ nullification.  But the more significant point is this: if the various states should have different policies, so what?  That is precisely what the United States was supposed to look like.  As usual, alleged supporters of “diversity” are the ones who most insist on national uniformity.  It says quite a bit about what people are learning in school that they are terrified at the prospect that their country might actually be organized the way Americans were originally assured it would be.  Local self-government was what the American Revolution was fought over, yet we’re told this very principle, and the defense mechanisms necessary to preserve it, are unthinkable.

Part of the reason the idea of nullification elicits such a visceral response from establishment opinion is that most people have unthinkingly absorbed the logic of the modern state, whereby a single, irresistible authority issuing infallible commands is the only way society can be organized.  Most people do not subject their unstated assumptions to close scrutiny, particularly since the more deeply embedded the assumption, the less people are aware it exists.  And it is this modern assumption, dating back to Thomas Hobbes, that – whether people realize it or not – lies at the root of nearly everyone’s political thought.  Not only is this assumption false, but (as I discuss in the book) the modern state to which it gave rise has been the most irresponsible and even lethal institution in history, racking up debts and carrying out atrocities that the decentralized polities that preceded them could scarcely have imagined.  Why it should be given the moral benefit of the doubt, to the point that all skeptics are to be viciously denounced, is unclear.

“The compact theory may apply to the first 13 states, but since all the other states were created by the federal government, we cannot describe these later states as building blocks of the Union in the same sense.”

The Idaho attorney general’s office tried making this argument against the Idaho health-care nullification bill.  Superficially plausible, the argument amounts to a gross misunderstanding of the American system.  Were the Idaho attorney general correct, American states would not be states at all but provinces.

The argument of the Idaho attorney general’s office, in fact, amounts to precisely the Old World view of the nature of the state and the people that Americans fled Europe to escape. The American position has always been that an American state is created by the people, not the federal government. Jefferson himself amplified this point in the controversy over the admission of Missouri. The people of Missouri had drafted a constitution and were applying for admission to the Union. Were they not admitted, Jefferson told them, they would be an independent state. In other words, their statehood derived from their sovereign people and its drafting of a constitution, not the approval of the federal government.

“The Civil War settled this.”

The Civil War was not fought over nullification, and as I’ve said above, at the time of the war it was the northern states that had much more recently been engaged in nullification.  The legitimacy of nullification involves a philosophical argument, and philosophical arguments are not – at least to reasonable people – decided one way or the other by violence.  No one would say, when confronted with the plight of the Plains Indians, “Didn’t the U.S. Army settle that?”  If the arguments for nullification make sense, and they do, that is what matters.  Reality is what it is.  The compact theory, from which nullification is derived, does describe U.S. history.  There is no way to evade that brute fact.

My primary intention in writing Nullification was to rescuscitate portions of American history which, having proven inconvenient to the regime in Washington, had slipped down the Orwellian memory hole.  I wanted Americans to realize that illustrious figures from their country’s past posed questions about the most desirable form of political organization – questions that today one is written out of polite society for asking.  I wanted to make a case, backed by overwhelming historical evidence, that the inhumane system whereby a single city hands down infallible dictates to 309 million people is not a fated existence.  Jefferson and others proposed an alternative, one we might wish to revisit in light of how obviously dysfunctional the present system has become.  Before this information can be put to much immediate use there is a good deal of educational groundwork to be laid.  I intended the book to be a first step along the road back to sanity.

Old-style, “small-is-beautiful” progressives would have sympathized with this view, as New Left historian William Appleman Williams did.  The commissars of approved opinion who pass as “progressives” today cannot even take the trouble to understand it.

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of eleven books, including the recently-released Nullification: How to Resist Federal Tyranny in the 21st Century, and the 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. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.