Nullification – the principle that, under the Tenth Amendment to the Constitution, the states and their people have the right and responsibility to declare unconstitutional federal laws of no force within their jurisdiction – has a significant place in Massachusetts history. As a hot spot of colonial resistance leading up to the War for Independence, Massachusetts emerged as a leader in pushing back against unlawful and immoral acts of Parliament. The place Massachusetts holds in the fight for liberty and local sovereignty lends strong philosophical support to the Tenth Amendment movement and provides a historical backdrop for its emergence as a leader in constitutional integrity.

The acts of Parliament and the Crown of Great Britain that led to the Revolution were numerous and stretch far into history. But the beginning of the tensions that led to war occurred in 1764 with the passage of the Sugar Act, which restricted a free and open market in the North American colonies. It was the first act of Parliament written specifically to raise colonial money – thus generating the well known slogan, “taxation without representation.”

The Sugar Act was followed by other laws that restricted the personal and economic liberties of American colonists: the Currency Act, the Quartering Act, the Stamp Act, the Declaratory Act, and the Townshend Acts. With each new piece of legislation, discontent with the English government grew into open, organized opposition that focused on the right and ability of a people to govern itself locally. And Massachusetts was at the forefront of this opposition.

In January, 1773 (the Boston Tea Party would take place in December that year), the loyalist, colonial governor of Massachusetts, Thomas Hutchinson, gave a speech to the state assembly to address growing opposition to the British government. In his speech, Hutchinson spoke directly to the citizens of Massachusetts who were, in effect, attempting to nullify Parliament through acts of local and individual sovereignty:

“The authority of the Parliament of Great Britain to make and establish laws for the inhabitants of this province has been, by many, denied. What was, at first, whispered with caution, was soon after openly asserted in print and, of late, a number of inhabitants in several of the principal towns in the province, have assembled together in their respective towns and, having assumed the name of legal Town Meetings, have passed resolves which they have ordered to be placed upon their town records, and caused to be printed & published in pamphlets and newspapers … some of them deny the supreme authority of Parliament.” [emphasis added]

So as far back as the early 1770s, the people of Massachusetts have asserted their rights of local sovereignty. The philosophical ideas that would give rise to the protections granted in the Tenth Amendment were present before the Revolutionary War even started. In fact, the same principles enshrined in the Tenth Amendment are the same principles that caused the people of Massachusetts and the other twelve colonies to resist Parliament through the acts of locally elected legislatures. The people of Massachusetts recognized in 1773 that a a geographically distant government, concerned with its own welfare and motives, had no place in managing their local affairs.

It was a sentiment that would be carried up to and throughout the war. The formation of the Continental Congress and individual states’ efforts to form their own legislatures with the power to make policy in opposition to that of the Parliament reflects the deep rooted American belief in self-governance – a belief that, despite efforts to suppress and overcome it, will not go away easily. The formation of a new Tenth Amendment Center chapter in Massachusetts is evidence to that fact.

Today, the people of Massachusetts face a similar situation. A distant, centralized government, concerned only with its own self interest, sits now in Washington, rather than London. This distant government has claimed supreme authority over nearly every aspect of public life and continually contrives new methods of taxation to fund its growing size and intrusiveness. The nullification pioneers of 1773 understood well that the size of government is inversely proportional to individual liberty. In our current era of bailouts, welfare-statism, and perpetual war, it’s hard to believe that individual liberty stands a chance.

But it does stand a chance as long as we recognize that we are the chance. We, the people of Massachusetts, have the power and authority to keep the federal government in check, if we take a lesson from our colonial history. Under the authority of the Tenth Amendment to the United States Constitution, we have the authority to assemble and declare, as a sovereign state, that Massachusetts is not subject to the supreme authority of the United States government when it ignores the Constitution and its enumerated powers.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center

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.

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From Chuck Baldwin: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is married to the former Miss Jennifer Hanssen.

On July 10, 2009, Alaska Governor Sarah Palin became the second governor in these States United (Governor Phil Bredesen of Tennessee is the other one) to sign into effect a State Sovereignty Resolution. These Sovereignty-type bills, resolutions and laws are an obvious and rightful response that the super-majority of the States in the Union are expressing to and against the usurping powers of the federal government. While the effects of federal tyranny are being felt more seriously than ever, history and human nature prove that the people of a society do not respond or revolt immediately against tyranny–though they have a right to. America’s resistance is no different. Fortunately, the sleeping giant is being awakened, to the dismay of our Centralist-worshipers today.

An observer of history and these current events cannot help but draw strikingly similar comparisons to America’s political struggles during the early to mid-1800s, where there was a serious threat to our original form of constitutional government by the Centralists of that day. During the presidency of John Adams, the people of the States realized and rejected the pro-centralist view of Adams and his ilk (e.g., Alexander Hamilton), and a battle between the ideology of centralism and federalism thrust itself into the forefront of political concern.

On the heels of the Adams administration, the people of the States United spoke clearly and loudly through their election of Presidents Thomas Jefferson in 1801 through James Buchanan in 1857. All of these Presidents (through either political expediency or conviction) rejected the centralists’ philosophy and confirmed the fundamental political ideology that the Constitution of the United States of America was a compact assented to by the individual States of America, and that the Federal government’s authority only extended to the specific and enumerated grants acceded to it by the sovereign people of each State. It was not until 1861 that this understanding of Constitutional government and State Sovereignty was seriously challenged.

Since the Reconstruction period after the War Between the States, the philosophical acknowledgments of what State Sovereignty means, implies and mandates has been flipped on its head, to where the States seem to believe that they are powerless over the demands of the federal government. This concept is completely contrary to the original principles of our Confederated Republic, which was overwhelmingly acknowledged from 1787 to 1860.

Those who adopted the views of the Centralists during the twentieth century, of course, had their heyday: from the implementation of the sixteenth and seventeenth amendments, to the implementation of our fiat currency system; from the assumption of all federal laws as superior to all state laws, to the Federal Supreme Court being considered the only arbitrator of issues regarding political sovereignty; from excessive federal borrowing and spending, to tyrannical federal mandates and directives imposed on the people of the States. Now, their heyday is turning into our payday and we the people are fronting the bill.

What Governor Palin acknowledged on July 10, 2009–as have thousands of men and women in their State government capacities across these States United–is what America’s Founding Fathers and statesmen pre-1861 accepted, acknowledged and proclaimed: (1) that each of the States is independent and possessing a natural right to govern itself according to the will of its sovereign people reflected in its own constitution; (2) that each of those States has a natural and compactually agreed-upon right to defend, secure and protect the freedoms and liberties of its own people; and (3) that any powers not delegated by those people through their States to the Federal government by the expressed intent and purposes understood and explained in the US Constitution are void and unenforceable. Indeed, most would have argued that each Sovereign State had all powers of nationhood (pursuant to the natural laws of nations, as understood by philosophical and political statesmen), with exception of those powers delegated to the federal government in the United States Constitution, which was ratified and acceded to only for the WELL-BEING–not the suppression–of those sovereign peoples and those Sovereign States.

Most students of history would agree that Daniel Webster was one of America’s most referred-to proponents of the Centralist view of our form of government. In the 1820s and 1830s, Webster ardently held the position that most Americans hold today: that the Federal government, through the “supreme laws of the land,” is independent and shielded from the States Sovereign powers and has an inherent political right to be its own judge regarding all matters that it unilaterally assumes to itself. In other words, they believe the US Constitution does not allow the States to independently judge the constitutionality of the federal government’s actions as it affects their independent sovereignty, and the US Supreme Court, alone, must make any such determination. Webster was (and still is) the “hero” of many who would (1) presuppose that the effect of the US Constitution somehow dissolved the independence and sovereignty of each State regarding matters of political sovereignty and, (2) suggest that each State has no power to resist the federal government.

While Webster may have classified himself as a proponent of such a view during the time of his life described above, his stated belief and position later in his political life certainly indicates that he recanted this Centralist position, as he became wiser and more mature to the true nature and character of our form of government. In 1851, Webster states the following concerning the States’ right, through their independent and sovereign status, to resist the Federal government’s usurpation of its constitutionally limited and delegated authority:

“How absurd it is to suppose that when different parties enter into a Compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! I intend, for one, to regard, and maintain, and carry out, to the fullest extent, the Constitution of the United States . . . A bargain cannot be broken on one side and still bind the other side . . . I am as ready to fight and to fall for the Constitutional rights of Virginia, as I am for those of Massachusetts.” (Alexander Stephens, A Constitutional View of the Late War Between the States, vol. 1 [Philadelphia, PA, National Publishing Co., 1870], 404-405.)

Webster’s dogmatic view of State Sovereignty cited above certainly sheds light and perspective on the limits, character and nature of federal power and is in stark contrast to the Centralist view of our federal government. The vast majority of the people of the States through their State legislatures and Congressional Representatives in the House and Senate from 1776 to 1861, of course, repeatedly confirmed this view of State Sovereignty. And while the end of the War Between the States in 1865 may have seemed like a victory for the doctrines of the Centralists and believers in monstrosities of government control over the lives of the people and the States, evidence now proves that the truly American doctrine of freedom has not died with war or time.

Instead, the spirit of a free, confederated and republican form of government, based upon the principles and maxims of Natural Law, lives on and is brewing like hot magma from what most would have classified as a dormant volcano. Very clearly, the spirit of freedom lives on. Even the famed French historian, Alexis De Tocqueville, in his book, “Democracy in America” recognized that “the fate of the republic should not be confused with that of the Union. The Union is an accident which will last only as long as circumstances support it, but a republic seems to be the natural state for Americans . . . The Union’s principal guarantee of existence is the LAW WHICH CREATED IT.” (Tocqueville, Alexis De, Democracy in America, Translated by Bevan, Gerald E., [Strand, London, Penguin Books, 2003], 464.) (Emphasis added.)

What can be dogmatically stated is that freedom-lovers in America should be more concerned about guaranteeing the existence of the LAW that made America free. (For now, I withhold my comments regarding those who reject the Natural Laws that created the Union.) The Centralists’ view of “Liberty and Union, now and forever, one and inseparable” (expressed by Daniel Webster on January 26, 1830, before his conversion to the correct view of our Confederate Republic) is not the true understanding of the nature and character of our government or our federal Constitution, which was built upon the notions expressed in the Declaration of Independence. (Webster, Daniel, Constitutional Doctrines of Webster, Hayne and Calhoun, [Lovell & Co., New York, NY, 1897], p. 23.) To the contrary, our Confederate Republic was built upon the law which states: the People have a natural right “to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

What freedom-loving American would ever advocate the idea that a group of freeborn persons in Sovereign States should be forced to be governed by a government that was initially created by the will and assent of those people in their sovereign and independent capacities, especially where that artificial creation (i.e., the federal government) has usurped the powers originally granted to it by the sovereigns of the States? Such a thought is repugnant to free society, free government, and American ideology, and mirrors more of the hereditary-right-to-rule notion argued by monarchs of yesteryear and forced upon its not-so-loyal subjects.

Not likely realizing the significance and effect of his words and not knowing how he would later change his political understanding of State Sovereignty, Webster admits in 1833 that “the natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it.” As seen in his statement in 1851 above, Webster certainly reached the conclusion that the States actually did accede to the Union and did in fact retain their Sovereign powers, which they have a duty to use to protect their citizens.

© 2009 Chuck Baldwin – All Rights Reserved

This article was originally published as “Jefferson’s Philosophy” in Faith & Freedom, March 1951.

Jeffersonian or Hamiltonian? Every college student, indeed every literate person, is expected to choose up sides and pin a label on himself in the Great Debate. Most people today consider themselves as Jeffersonians. Groups as diverse as the States’ Rights (or Dixiecrat) movement and the Communists consider themselves heirs to the Jeffersonian mantle.

At one and the same time, conservative southerners refer to themselves as “Jeffersonian Democrats,” while the leading revolutionary Marxist school in the country is called the “Jefferson School of Social Science.” Amidst this welter of confusion, to find the true picture of Jefferson the man and political philosopher is an extraordinarily difficult task.

A Bewildering Mosaic

Analysis of Jefferson is made far more difficult by the complex nature of Jefferson’s personality and career. A man of brilliant intellect; keenly interested in the whole range of human thought, from economics to architecture to scientific farming; active, dynamic, and spirited in an amazing multitude of enterprises, and moreover a political leader the greater part of his life, necessarily presents to posterity a bewildering mosaic. Politics itself is a day-to-day affair, imposing by its very nature on the politician a series of shifts and compromises.

Thus, Jefferson combined within himself the qualities of a soaring intellectual spirit, searching for political principle, busy man of affairs, and political boss. When it is further remembered that Jefferson dominated the stage during the most vital years of the Republic (Revolution, Independence, Constitution, Growth, War, etc.), it becomes more understandable that so many contrasting groups can pick out of his immense record of writings and actions support for their own ideologies.

A Mere Scribbler?

But to an unbiased observer who explores Thomas Jefferson, his principles stand out indelible and crystal clear. His political philosophy has been imbedded deep into the very soul of America, and has imprinted itself on the minds of innumerable Americans of later generations. His achievement has been sneered at by Hamiltonians of our day as well as his.

Hamilton, they claim, was a constructive and practical man of action. He funded the national debt, reformed the administration of government, established a national bank, etc. Jefferson was a mere phrase-maker and scribbler. These “practical men” fail to grasp that the forces which generate the actions of men, and therefore human history, are, for good or bad, the ideas of men. It is ideas, political, economic, ethical, esthetic, religious, that have prime significance for human action in the present and over the centuries. It is ludicrous to claim that Hamilton’s financial measures were of comparable importance to the Declaration of Independence or the Kentucky Resolutions.

The battle between Jefferson and Hamilton, however, is of very great significance, and precisely because it represented a clash between two fundamentally contrasting systems of political principle.

Jefferson’s political philosophy is summed up in the phrase: ”That government is best which governs least.” It received its finest expression in our own Declaration of Independence: man is endowed by God with certain natural rights; “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” and when government becomes destructive of that end, the people have the right to change the form of government accordingly.

Thus Jefferson, as John Locke had done a century before, drastically shifted the moral emphasis from the State to the individual. In the absolutist and feudal era from which the world was beginning to emerge, divine right settled only on the kings, the nobility; in short, the State and its rulers. To Jefferson, the divine rights were conferred on each and every individual, not on rulers of government.

The Great Jeffersonian Lesson

What were these natural rights? The fundamental right, from which all others are deduced, is the right to life. Each individual has the moral right to live without coercive interference by others. To live, he must be free to work and acquire property, to “pursue happiness.” In political terms, the one important natural right is self-defense; defense of one’s life, liberty, and property from invasive attack.

Government’s function, then, is to use its power of force to prevent and combat attempts to use force in the society. If the Government extends its powers beyond this “cop-on-the-corner” function, it in itself becomes the greatest tyrant and plunderer of them all. Since the Government has virtual monopoly of force, its potentialities for evil are far greater than that of any other institution.

The people must constantly keep their Government small and local, and even then must watch it with great vigilance lest it run amok. That is the great Jeffersonian lesson, and it is one that all Americans must begin to learn again.

From this basic cornerstone, the rest of the Jeffersonian edifice is easily deduced. It explains his passionate, lifelong adherence to States’ Rights, his determined opposition to John Marshall in the latter’s successful campaign to make the Constitution more elastic so as to permit wider extension of federal power, his very distrust of the Constitution itself and insistence upon incorporating a Bill of Rights.

Jefferson’s position on foreign policy stemmed from the same source. He did not believe that our government, or any government, is equipped to remake the world by force to our own liking. He was frankly a whole-hearted patriot, whose natural love of the soil and his country was reinforced by the fact that America constituted the Great Experiment in Liberty.

His foreign policy was expressed in this classic phrase: “Peace, commerce, and honest friendship with all nations — entangling alliances with none.” Particularly marked was his perceptive distrust of the wily imperialism of Great Britain.

The Fundamental Cleavage

In the economic sphere, Jefferson was not anti-capitalist, as his enemies charged. He believed in genuine freedom of enterprise, unencumbered by government regulation or grants of monopoly privilege. His opposition to paper money and a central bank were based on profound insight into the then new science of economics.

Jefferson’s almost unknown writings on banking, money, and depressions demonstrate that he was head and shoulders over the allegedly “practical men” who opposed him. What has since been interpreted as anti-capitalist rhetoric was simply expression on Jefferson’s part of a personal preference for the soil and a distaste for the life of the cities.

The importance of the Jefferson-Hamilton struggle has been unfortunately obscured. It is a struggle which, in one form or another, has continued to mark our country since its inception. Hamilton and the Federalists believed in ever-expanding power of the federal government, a myriad of governmental regulations, controls, and special privileges in economic life, the crushing of the states, and limiting the rights of the individual.

Their ideal was the British model — a strong monarch ruling the country in behalf of the “general welfare”; failing the adoption of a monarch, a strong President to act as benevolent despot. In foreign affairs, the Federalists looked to the British Empire as friend and ally. Hamiltonian Federalism was, in the profoundest sense, un-American; it represented a conscious harking back to the imperial British mode, a retention of the typically European forms of strong central government and semi-socialist “planned economy.”

Our Constitution was forged as a compromise between the Jefferson and Hamilton forces, with James Madison acting as the eternal tightrope-walker and fence-straddler between the two camps. The trappings, the rhetoric, the specific issues have changed, but the fundamental cleavage remains, unresolved, on the American scene.

Murray N. Rothbard (1926–1995) was dean of the Austrian School. He was an economist, economic historian, and libertarian political philosopher. See his article archives.

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.

The following is an excerpt from the new book, Dred Scott’s Revenge: A Legal History of Race and Freedom in America, by Judge Andrew P. Napolitano. The excerpt is drawn from Chapter Five, entitled “The Civil War,” published here with permission from the publisher, Thomas-Nelson:

One of the greatest misconceptions of American history is that the Civil War was fought over slavery. Those who subscribe to this belief see President Abraham Lincoln as the benevolent leader who made unimaginable sacrifices in human blood to wipe out America’s greatest sin. While the human sacrifice is indisputable and the sin was monumental, the war’s purpose was not to free blacks from the shackles of bondage. Rather, the Civil War was fought with one purpose in mind: To preserve the Union at all costs. And, to put it in Lincoln’s terms, with no ifs, ands, or buts. You’d better agree with the president, or else.

THE SETTING

The North and South were divided both morally and economically. As the previous chapters have chronicled, the debate over slavery had firmly gripped the country in the decades preceding the Lincoln presidency. Since the country’s founding, the states and the federal government kept deeply rooted passions concerning slavery and abolition at bay by constantly compromising. The balance of free states and slave states was maintained as slavery expanded. States were given autonomy to deal with the issue of slavery as they saw fit, so long as they did not interfere with another’s property rights. But the Dred Scott case placed the federal government firmly on the side of the slaveholders, redefining the slavery provisions in the Constitution in a way that created a seemingly insurmountable obstacle to obtaining the human moral equality for which so many Americans yearned.

In addition to the country’s division over slavery, there was the concern over which economy the federal government favored—the South’s agrarian economy or the North’s commercial interests. Interestingly enough, the Dred Scott decision did not accurately reflect to which side of the debate the federal government was committed. Northern states had gained control of the federal government as the 1850s drew to a close, and the South found itself on the defensive. Its agricultural economy, sustained by slave labor, was attacked on both moral and economic grounds.

A QUESTIONABLE STANCE

Abraham Lincoln emerged as a candidate for the presidency at a time when national anticipation was at its peak. How would a new president balance the interests of the North and South? In the wake of Dred Scott, would he steer the country toward democracy or slaveocracy? Adding to the uncertainty were Lincoln’s own unclear and often contradictory statements over slavery itself. Lincoln never argued that slavery was unjust. Rather, he asserted that it threatened to weaken the Union and its democratic values. During the Lincoln-Douglas debates of 1858, Lincoln stated: “A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided.” A skilled politician, Lincoln appealed to the antislavery interests of Northern abolitionists as well as moderates in border slave states who were opposed to racial equality.

But the common tale that Lincoln was a sympathetic and heroic defender of black freedom is simply a myth. As Union armies met the forces of the Confederacy on the battlefield, he openly argued, “What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.” It is important to analyze the magnitude of what Lincoln says here. He admits that the emancipation of blacks will only happen because it is of assistance to the Union; slaves are only pawns in the game of politics and warfare he is playing. Lincoln places the freedom of blacks on a low priority compared to his desire to unify the nation, and his words here seem more becoming of a Confederate Army officer than the so-called Great Emancipator. Yet it is the latter title that we’ve all been taught to attribute to Abraham Lincoln. In my opinion, such a title is the least deserved sobriquet accorded any president. Lincoln’s rhetoric notwithstanding, Southerners were uncertain about his commitment to protecting their slavery interests. His consistent manipulation of the issue of slavery along the lines of Union preservation earned him the fraudulent title of a political moderate in the North, but Southerners were still adamant about having a Southerner as president.

LINCOLN IGNITES WAR

Despite Southern opposition, Lincoln was nonetheless elected as the sixteenth president of the United States in 1860. Far from over- whelming support, he received only 39 percent of the popular vote, and his name was stricken from the ballot in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Tennessee, and Texas. In South Carolina the legislature chose not to have candidates for president on the ballot, in apparent anticipation of secession. Only 1.1 percent of white voters supported Lincoln in Virginia. These were the same states that would secede from the Union the following year.

The Southern states were increasingly discontented as their interests were of secondhand concern to the federal government. Without political influence in Congress, the Southern legislatures still retained the right to nullification and secession. Nullification was the legal theory by which states could declare federal laws unconstitutional, while secession was the right claimed by states to separate from the Union. As soon as Lincoln became president, states’ rights disappeared in the shadow of national power when he declared secession to be illegal. During his first inaugural address, Lincoln associated secession with anarchy as he stated,

Plainly the central idea of secession is the essence of anarchy. . . . In 1787, one of the declared objects for ordaining and establishing the Constitution was to form a more perfect Union. . . . It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resol[ution]s and ordinances to that effect are legally void.

However, Lincoln chose to ignore the historical underpinnings of the American political system; the right of secession followed from the American Revolution as the colonists separated from the British Empire and declared their independence. President Lincoln also made the faulty assumption that the Union takes precedence over the states, as the goal was “to form a more perfect Union.” He failed to recognize that states are free and independent, and combined they form the Union. As Ronald Reagan would say in his first inaugural address over a century later, “the federal government did not create the states; the states created the federal government.” This subtle distinction is an important aspect of State sovereignty. The United States was founded on the ideals that federal power could be challenged by the states. Lincoln overlooked the fact that the states had formed a voluntary agreement and did not have the ability to surrender their sovereignty forever to a centralized power.

Nullification was also a fundamental state right to prevent federal domination. States enjoyed the right to use nullification as a protective measure against unconstitutional federal laws by making them ineffective against their citizens. Nullification had become a states’ rights tradition, and both the North and the South exercised it prior to 1861. The most famous examples of this in the North centered around Northern states’ personal liberty laws, a series of laws that were passed in response to the Fugitive Slave Act. Even though the U.S. Supreme Court found these laws, and thus nullification, unconstitutional—in the 1842 case Prigg v. Pennsylvania—Northern states, yes, Northern states, continued to enact laws that criminalized the return of fugitive slaves in direct defiance of federal law. Lincoln’s attempt to trample the states’ sovereignty, even the rights of those opposed to slavery, only heightened the conflict between the advocates of a supreme, unchecked federal government and the advocates of a modest central government, tempered by nullification.. South Carolina started the trend of secession in December 1860. Concerned with preserving the Union at all costs, Lincoln was determined to use military force to bring the rebel states into line. But he did not want to be portrayed as an aggressor and needed the South somehow to ignite the conflict. This would make the Southerners look like the aggressors and would give the impression that Lincoln simply had no choice but to declare war as a defense against aggression.

The solution devised by Lincoln triggered a war that would kill seven hundred thousand Americans. Advised by his top military commanders that an incoming ship would be considered a threat to Confederates and would prompt an attack, Lincoln deliberately sent a ship of food provisions as well as additional armed soldiers to Fort Sumter, South Carolina. The Confederates fell for the ploy and fired the first shot. Lincoln responded by sending armed warships and deployed a total of seventy-five thousand troops to invade all of the Southern states.

His plan, however, did not go unnoticed. Northern newspapers were quick to inform the public that Lincoln had instigated the Fort Sumter incident. The Jersey City American Standard wrote, “there is a madness and ruthlessness” in Lincoln “which is astounding . . . this unarmed vessel . . . is a mere decoy to draw the first fire from the people of the South, which act by the pre-determination of the government is to be the pretext for letting loose the horrors of war.” The Providence Daily Post also wrote, “Mr. Lincoln saw an opportunity to inaugurate civil war without appearing in the character of an aggressor.” These headlines and stories were replicated by other newspapers in the North. Lincoln’s plan to bring the country into a war was no longer a hidden political strategy.

A substantial number of free blacks from the North offered to serve in the Union army, but their attempts were met with federal opposition. Freedom and equality were not intertwined in the North, and blacks were constantly reminded of this disparity. Requests by blacks made to the War Department went unheard, often for political reasons. President Lincoln was ultimately concerned with the border slave states possibly abandoning the Union if blacks’ status were elevated to that of a soldier in the Union army.

Lincoln’s position on slavery was made even more evident in the first few weeks of war. The fighting immediately prompted Virginia, North Carolina, Tennessee, and Arkansas to secede from the Union. In a clear display of Lincoln’s priorities, the President proposed to permit the continuation of slavery in Missouri, Kentucky, Maryland, and Delaware so long as those states remained in the Union. To save the Union from further division, Lincoln was willing to continue the subjugation of blacks.

In the end, this proposal worked, as those States chose not to secede. However, many citizens from those border states still joined the Confederacy. Both Kentucky and Missouri had two state governments, one supporting the Confederacy and the other supporting the Union.

By May 1861, a total of eleven Southern states had seceded from the Union and established their own nation, the Confederate States of America. The Confederacy was comprised of South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, and Tennessee. The Confederacy’s Constitution contained provisions that expressly protected the institution of slavery, limited the power of the new central government, and clearly reflected state sovereignty. Lincoln refused to recognize the Confederacy, declared secession to be a violation of the Constitution, and effectively declared war on the people of the Southern states that refused to recognize his presidency.

Andrew P. Napolitano [send him mail], who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Copyright © 2009 Andrew P. Napolitano

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” – James Madison, Federalist 45

Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, “the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state”.

Read that again: “The legislature of the state of Montana hereby nullifies the REAL ID Act”. Nullifies. Hmmm, there’s a word we haven’t seen in awhile, and with good reason. You see, the word “nullify” like its conceptual kissing cousins “secession,” “states rights,” “delegated powers,” and sometimes even “Constitution” belongs to a special class of political four-letter words, so called for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.

For this reason it’s understandable that the use of this little three-syllable word “nullify” will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word ‘nullify’ when commenting on Diane Rice’s bill, stating that it “is simply a synonym for ‘repeal’ and carries little significance beyond demanding that the federal government reverse its law.” Technically, what Harper says is true; the word “nullify” can be used as a synonym for “repeal,” although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using ‘repeals’ in place of ‘nullifies’ in the sentence that I quoted from Ms. Rice’s bill. When you do this, you get: “the legislature of the state of Montana hereby repeals the REAL ID Act of 2005.” Nope, I’m sorry, Hal, but this doesn’t work. Montana didn’t pass the REAL ID Act, so it can’t very well repeal it; and nowhere in Ms. Rice’s bill do I see any call for the federal government to “reverse its law”. The bill simply states that the REAL ID Act “is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution,” and that the state “nullifies” it “as it would apply in this state.”

This language seems pretty clear to me. Ms. Rice’s bill says that Montana doesn’t like the REAL ID Act, doesn’t think it’s constitutionally sound, and won’t have anything to do with it. End of story.

But a state can’t do that…can it?

Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts — this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same – surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that’s the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are ‘discredited’ political doctrines largely for the same reason that your claim to your wallet can be ‘discredited’ by a mugger in an alley. Ask Rush Limbaugh if you don’t believe me. “Might makes right” is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it “patriotism,” while simultaneously demonizing his opposition as “anarchists” and/or “anti-American.”

However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:

What is Nullification?

From the Random House Unabridged Dictionary:

Nullify – (verb)

1. to render or declare legally void or inoperative: to nullify a contract. 2. to deprive (something) of value or effectiveness; make futile or of no consequence.

Thus, when a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective’, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

A Short History of Nullification

Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various “personal liberty laws” that Northerners enacted in defiance of federal fugitive slave laws).

And now, with that short introduction out of the way, let’s get to the meat of the issue.

Is Nullification Constitutional? Compact Theorists versus Nationalists

In his opposition to South Carolina’s decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could “annul a law of the United States,” arguing that nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the “people of the United States” in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865) may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.

Is the Union a Consolidated Nation-state, or a Confederation of States?

Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that “these United Colonies are, and of right ought to be free and independent states.” The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: “At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one.”

Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, “All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance…” The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.

The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States.” Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.

In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only “between the states so ratifying the same” (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: “I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible.”

Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, “between the states”) demonstrates for us. Patrick Henry, speaking in Virginia’s ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by “the people of the United States”; however, James Madison countered that idea. “Who are the parties to it?” asked Madison, “the people — but not the people as composing one great body — but the people as composing thirteen sovereignties.” As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a “national government…consisting of a supreme legislative, judiciary, and executive,” but the plan had been rejected, and the word ‘national’ had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a “compact” to which the states had “acceded” (agreed to join) and the new Union as a “confederacy” and a “confederate republic.” The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: “Different confederacies have different powers, and exercise them in different ways…great latitude, therefore, must be given to the signification of the term.”
Sovereignty and State Powers within the Union
Those who reject doctrines such as nullification and secession often point to the “Supremacy Clause” in Article VI of the Constitution, where we read: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding.” Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.

The powers of the federal government are, as the Constitution itself clearly states, “delegated,” not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

And…

But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union…only declares a truth which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution. . .

These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:

Kentucky Resolution: “The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States. . . that to this compact each State acceded as a State. . . that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself. . .”

Virginia Resolution: “RESOLVED. . . That this Assembly most solemnly declares a warm attachment to the Union of the States. . . That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact. . .”

A Constitutional Right to Resist

It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are “acts of usurpation,” as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.

In light of this, Andrew Jackson’s assertion that nullification is “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed,” is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by “oath or affirmation”. It is absolutely authorized by the Constitution’s “spirit,” which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The “great object” for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:

Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments. . .

Nullification – a state exercising its natural right to self-defense in protecting its reserved rights and powers – is not destructive of any of these things that Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other “police actions” and “peace-keeping missions,” none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very “diseases of faction” that Madison and others feared. And as for those “military establishments which have subverted the liberties of the old world,” we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic “crisis” situations, with or without state cooperation and permission.
Responses to Two Common Objections
What about the Courts?

Some of you who read this article will inevitably ask: “What about the federal courts? Aren’t they supposed to determine the constitutionality of a law or a given action?” Over time, nationalists — thanks primarily to Chief Justice John Marshall’s decisions early in the country’s history — have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is “not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”

The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution’s greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all “cases in law and equity arising under this Constitution,” and Article VI states that the Constitution is the “supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing.” As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt — or, as Hamilton once put it, “evident” — violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a ‘separation of powers’ issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.

Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how “Judge so-and-so” votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.

The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.

The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson’s solution to the clash of federal versus state authority and constitutional ambiguities:

But the Chief Justice [Federalist John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.

Wouldn’t Nullification lead to Anarchy?

Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!

The assumption here seems to be that, should nullification ever come into fashion, that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:

First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles — such as providing for the common defense — and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, “It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions.” As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.

Secondly, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between Washington and the states, except in instances where opposing political parties are involved.

Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.

Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.

Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds — New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska’s case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not recognize Daylight Savings Time. Nebraska has the country’s only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.
Conclusion
Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution’s fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, “The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so.”

The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry ‘papers’. If the State of Montana decides to nullify this so-called ‘law’, it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana’s elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.

Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place — while such is still possible. Benjamin Franklin once said, “We have given you a Republic, if you can keep it.” Simply put, nullification is all about “keeping it”.

Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. He was born and raised in Northern Virginia, now lives in South Carolina with his family, and is pursuing a career as a freelance writer. He maintains a blog at jeffersonian73.blogspot.com.

Thomas Jefferson, third president of the United States of America, was an architect, a philosopher, a Deist and an impeccable prose stylist. His passionate appeal to dissolve ties with England—the Declaration of Independence—led the early colonies to war and ultimately freedom. As president, he earned respect for his sound principles and industrious nature, though his private life has been subjected to intense scrutiny.

Early Days

[The Politically Incorrect Guide to the Constitution. By Kevin R.C. Gutzman. Regnery Publishing, 2007. Xiii + 258 pgs.]

Kevin Gutzman gives his readers much more than they had a right to expect. The “Politically Incorrect Guide” series in which his book appears aims at a popular audience: its goal is to correct commonly held myths of leftist propaganda.

Gutzman eminently fulfills this goal, but his book cannot be called an elementary work. Quite the contrary, The Politically Incorrect Guide to the Constitution is a major contribution to American constitutional history.

Gutzman is a leading authority on the Virginia ratification debates on the Constitution, and he uses his research to great effect. He has been much influenced by the pioneering originalist scholar Raoul Berger, but he strengthens and extends Berger’s views.

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

The very word “Congress” shows this. “The Congress was, as Massachusetts John Adams put it, a meeting place of ambassadors. In fact, the word congress had always denoted assemblies of the representatives of sovereigns — as in the case of the Congress of Westphalia in the seventeenth century” (p. 10). The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do” (p. 11).

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates. True enough, the Articles spoke of “Perpetual Union”; but as Gutzman astutely notes, the “fact that their union had no set end date, in part because the length of the war could not be foreseen, was denoted by calling it ‘perpetual.’ (In those days treaties between European states often purported to be ‘perpetual.’ This did not mean that neither side could bring a treaty agreement to an end, but that there was no built in sunset provision)” (p. 12). Further, in the Treaty of Paris that ended the war, George III mentioned each of the colonies by name, acknowledging them to be “sovereign and independent States” (p. 10).

Gutzman has made a strong case that, prior to the adoption of the Constitution, the states were not subordinated to a national government. One might allege on the other side that the states were not represented abroad by separate ambassadors, but this is far outweighed by the considerations our author adduces. He now confronts the principal challenge to his thesis: did the Constitution change matters? Was the United States no longer an alliance of states but instead a unified nation?

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who — without ever avowing admiration for the monarchical form — wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity — a truly federal, rather than national government” (pp. 22–24).

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.” (p. 73)

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall. To my surprise, Gutzman does not center his attack on Marbury v. Madison. He is critical of Marshall’s reasoning, but “[d]espite what most legal scholars will tell you, ‘judicial review’ was uncontroversial before Marbury v. Madison” (p. 78). I wish that Gutzman had addressed the arguments to the contrary advanced by L. Brent Bozell in his neglected The Warren Revolution. I do not say Bozell is right, but his case against judicial review merits a response.

For Gutzman, Marshall’s chief sin is not judicial review but his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted” (p. 91).

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates — knowing that they had to win support for the Constitution — that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states — Virginia, Maryland, and Rhode Island — explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union” (p. 122).

As always, Gutzman makes a strong argument, but on one minor point I think he is mistaken. He says that one “legacy of Dred Scott v. Sandford was that after 1857, virtually any Republican candidate was sure to beat Buchanan for president in 1860 — which would almost certainly mean the dissolution of the Union (p. 120; see also p.160). But Buchanan was not a candidate for president in 1860. Suppose the Democratic Party had not split. Is it a foregone conclusion that Lincoln would have defeated Stephen A. Douglas?

One final example of Gutzman’s constitutional iconoclasm must here suffice. The Supreme Court has used the due process clause of the Fourteenth Amendment as its principal instrument to eviscerate state sovereignty. Various decisions of the Court have held, e.g., that the Amendment applies the restrictions of the Bill of Rights to the states.

Gutzman rejects this view in the most radical way possible. He holds that the Fourteenth Amendment was never legally adopted. Congress required the Southern states to ratify the Amendment as a condition for readmission to the Union. But this is blatantly illegal: if the legislatures who “ratified” under duress were not already valid representatives of existing state governments, their votes had no legal effect. Our author concludes: “Thus, the Fourteenth Amendment was never constitutionally proposed to the states by Congress and never constitutionally ratified by the states, and yet today it stands (after the Constitution’s structural provisions) as the most significant part of the American legal system” (p. 133).

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store. Send him mail.

The first in a series of ten lectures, presented at “The Truth About American History: An Austro-Jeffersonian Perspective” seminar, hosted by the Mises Institute. Recorded 06/20/2005