Recently, well known journalist and civil liberties activist Naomi Wolf wrote a Facebook post praising Virginia’s efforts to nullify the detention provisions in the NDAA.  The post she cited even called for tougher measures at the state level. Seeing this as an excellent opportunity to bring the principles of nullification into a broader arena of instruction, the Tenth Amendment Center reached out to Ms. Wolf, offering a little broader perspective on nullification.

Dear Ms. Wolf,

We were pleased to read your recent Facebook post praising the passage of Virginia’s NDAA nullification bill!

We agree with you that this is just the beginning, and that states need to pass even more stringent laws, leveraging their own resources and committing to actively block any federal attempts to kidnap people here in the U.S.

As you’re aware, the Tenth Amendment Center is working with people in states and towns around the country to address the suspension of habeas corpus in the spirit of northern resistance to federal slave laws in the 1850s. The parallels between the NDAA detention provisions and the Fugitive Slave Acts, particularly the final act of 1850, are pretty amazing. Both ignore the basic right to due process. Blacks accused of being fugitive slaves were not even allowed to testify in their own defense.

Northern states refused to simply comply with these provisions, arguing they were unconstitutional, not to mention a violation of basic human rights. So they took action,  passing personal liberty laws. The laws varied by state, but all worked to thwart implementation of the fugitive slave acts. Some provided for jury trials, other required the collaborating testimony of at least two witnesses and others banned the use by slave commissioners of state facilities, such as jails.

Here is just one example from a Massachusetts law. The state forbid its officials from cooperating in issuing warrants for escaped slaves.

Sec. 9. No person, while holding any office of honor, trust, or emolument, under the laws of this Commonwealth, shall, in any capacity, issue any warrant or other process, or grant any certificate, under or by virtue of an act of congress . . . or shall in any capacity, serve any such warrant or other process.

Most people associate the principles of nullification with the Civil War and assume that they were concocted by southerners to protect slavery. As you can see, this notion is 180 degrees from historical reality. In fact, nullification predates the Civil War by some 60 years. Thomas Jefferson and James Madison first formalized the principles in the Kentucky and Virginia Resolutions of 1798 in opposition to the Alien and Sedition Acts. The sedition law was particularly onerous, basically outlawing criticism of the government. Jefferson and Madison based nullification on a couple of important concepts.

1. The Constitution creates a federal government with specific, limited and enumerated powers, all other authority left with the states and the people and

2. The federal government cannot stand as the sole judge of its own power. It is really a ludicrous idea. It would be like allowing a Dallas Cowboy player to serve as the referee in a game between the Cowboys and the New York Giants.

When you read the resolutions, the logic and historical context quickly becomes clear.

Yes, segregationists appealed to the idea in the 1950s, but the fact that some evil people used a principle to an evil end doesn’t negate the power and validity of the principle, no more than a murderer smashing somebody over the head with a hammer makes it useless for driving nails. By and large, nullification has been invoked to protect the rights and liberties of the people – not only  through  the liberty laws and against the Alien and Sedition Acts, but also to resist an unconstitutional embargo, unfair and constitutionally questionable economic policies, and federal conscription of Americans during the War of 1812. Daniel Webster wrote this regarding state efforts to thwart conscription.

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”

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In the last few years, we have seen states invoke nullification principles not only against the NDAA, but to fight the federal “war on drugs,” and to push back against TSA groping and peeking.

The states can and should serve as a powerful check on federal power. In fact, the framers counted on it. It’s all about decentralizing authority. We know that state governments aren’t candidates for sainthood, but we believe the more we devolve power, the more control the people actually wield.

There’s a lot more that needs to be covered in a few hundred words, but hopefully  this serves as a good intro.

Let’s collaborate on it a bit when you get to it?

Mike Maharrey