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The Rise of Nullification

I presume to review this book, even though I am a contributor to it, because it is a fine representation of an increasing tendency across this land of resistance to a federal government grown inept, corrupt, overreaching, overlarge, and overintrusive. That tendency may be labeled, for convenience: nullification.

It doesn’t matter that the word does not appear in this volume, for its spirit does. The volume is called Most Likely to Secede, and it grows out of a secession movement in Vermont that has been active, off and on, for a decade now. But I don’t think secession really is in the immediate future. Instead the subtitle comes closest to what this book is all about—state independence. It is a collection of essays from a magazine called Vermont Commons, which started publishing in 2005, and they deal with every aspect of what it takes for a state to assume unto itself all the processes that have been ceded to (or seized by) the federal government over the years: money, business regulation, energy, health, education, democracy, food safety, information, the commons, and social policies such as abortion and marriage.

Obviously, every attempt to increase or establish independence on the state level will eventually run up against laws and regulations on the federal level. Take food, for example. One essay here points out that Vermont will not be able to have food produced “locally and regionally … until we openly name and then dismantle the tyranny of our corporate-industrial food system—which is supported by our government.” It goes on to look at federal regulations that have grown and grown in the 20th century, which “did achieve a certain level of food safety” but at the cost of “creating a system where small abattoirs and locally available meat are scarce because of the capital investment required to comply with all of the safety standards.” So, too, with milk, which the federal government has long required to be pasteurized and produced and bottled in expensive settings with expensive processes that make it very hard for a small farmer to comply.

So if the food movement in Vermont—which has done a lot in recent years to promote local farming and marketing—is ever to set up a truly independent and truly local agricultural system it will have to find a way to push back federal regulations and practices: that is, nullification.

Or take education. Another essay here lays out all the ways in which Vermont could have schools that develop independent thinking, regardless of grades and testing, and gives examples of this being done in a few places in the state. But it is hard to expand these models when the state government is obligated, by state and national laws, to have standardized education. “One vital goal of Vermont independence,” writes Ron Miller, a founder of the “holistic education” movement, “is an educational culture that respects and encourages learning on a human scale, that supports caring and loving communities of learning.” But it runs up against “authoritarian educational policy” and federal “No Child Left Behind” and “Race to the Top” requirements. “National educational policy is one more reason why we need to challenge the burgeoning power of the American empire,” he writes. “We ought to decline the Federal government’s inducements to participate in any ‘race to the top’.”

But declining that means more than a polite “no thank you.” It needs a deliberate campaign to nullify federal laws. That takes courage, but that’s what a surprising number of state legislatures are now displaying.

Nullification acts have been introduced in state legislatures all across the country, particularly in the last few months: no fewer than 10 states took up proposals in the last week of February. According to one estimate at the Tenth Amendment Center, which tracks such things, there are more than 70 proposed bills to nullify federal laws and practices now in state legislatures, sometimes consciously labeled nullification, sometimes not.

For example, 12 states have introduced proposals for state marijuana laws in defiance of federal regulations under the Controlled Substances Act of 1970, joining the 15 states that have already passed various decriminalization provisions, including most recently Washington and Colorado. (Interestingly, they are not confined to blue or red states but stretch across the land: Alaska, Washington, California, Nevada, Arizona, New Mexico, Montana, Michigan, Arkansas, Vermont, Rhode Island, and Maine.)


State laws against National Defense Authorization Act provisions that allow the president to detain indefinitely anyone, citizen or not, whom he suspects of terrorist ties, have been introduced in almost half the states, again from coast to coast, and passed in Arizona, Utah, Maine, and recently Virginia—the state that first used nullification, in 1798, against the Alien and Sedition Acts.

Additional state nullification acts have been introduced this year over threatened gun control measures (called Second Amendment Preservation bills) in 25 states, over Obamacare in 6 states (and one has passed in North Dakota, while an additional 26 states have refused to set up state “exchanges” under it), and over drone-invaded privacy in 14 states (one has passed in Virginia). That’s in addition to the 15 states that have refused to comply with the Real ID Act of 2005 and the 10 others where resistance has passed both houses of the legislature, a rejection so complete that the law, which was supposed to go into effect in 2008, now remains dormant without any sign of the feds pressing to effect it. And, just to make this complete, numerous states have proposed laws for one or more of these causes: gold and silver as legal tender, Tenth Amendment recognition, sheriff primacy (over federal lawmen), National Guard protection, and freedom from federal regulation of hemp, food, and the environment.

May/June 2013 issue [1]All in all, convincing evidence—generally ignored by the media, mainstream and rivulet—that there is widespread resistance to the federal government, sufficient to get laws introduced and passed by states finally exercising Tenth Amendment rights that have long been dormant.

One essayist in this volume, writer Roland Jacobson, effectively sums up the case for Vermont independence and the reason it has to come through directly confronting the national government.

If we are to cultivate our own traditions—to let thrive those things that make Vermont unique—we need to detach from the national system. So long as decisions about our schools, forests, and water are being made by senators from South Carolina, presidents from Texas, and judges from Chicago, Vermont’s best interests are not going to be kept in mind… .

There’s no question that the things that make Vermont Vermont are under increasing pressure from a variety of external sources. The question is what to do about it. Does Vermont make more sense, does it become more itself somehow by going its own way? A simple test helps answer this. If Vermont had been an independent republic all along, would you now vote for it to join the United States? Of course not. It would be unthinkable.

So there you have it. Unassailable logic. A state that wants to do things differently from the dictates of the Federal government has to start by nullifying the laws it does not want to live under—and eventually it will have to “become more itself” by “going its own way.” That’s called secession—and who knows? On the basis of the book, Vermont really might be most likely to secede.

Kirkpatrick Sale is director of the Middlebury Institute and the author of a dozen books, most recently Emancipation Hell: The Tragedy Wrought by Lincoln’s Emancipation Proclamation 150 Years Ago [2].

118 Comments (Open | Close)

118 Comments To "The Rise of Nullification"

#1 Comment By Michael Lamb On June 12, 2013 @ 4:05 pm

Siarlys Jenkins says:
“….the agreement was, and is, one between the various states”

“That’s a plausible hypothesis. Do you have any argument from facts to support it?”

Of course: The Paris Peace treaty 1782. The Articles of Confederation. The US Constitution.

The Paris Peace Treaty of 1782 states that ALL Colonies are now recognized as individual countries or states.

The Articles of Confederation reinforces this as there is only limited powers given the Central Government. The Articles of Confederation is ONLY a tool used to coordinate the states interactions between themselves and other nations.

The US Constitution is an expanded version of the Articles of Confederation. It is ONLY a toll in the same sens the Articles of Confederation was.

The States created the US Government through the agreement of a document that forms the US Government as a Constitutional Republic, meaning Rule by Law, which makes the Government a Republican form of government.

The US Gov did NOT create the states! Nor did it create the Articles of Confederation. The US Government NEVER created anything except by deceit. Everything was ALLOWED the US Government by the Constitution that the US Government would be responsible for.

The 9th and 10th Amendments reproves that the states created the US Government as a tool by those Amendments SPECIFICALLY stating anything, any powers NOT granted the US Government are powers/rights that remain with the states and the people.

If it’s NOT specially addressed as a power of the Federal then the Federal Government has ABSOLUTELY No say in the matter. Secession for example; No where is it forbidden in the US Constitution, therefore it is a right left tot he states and people. Same for Nullification. Same for abortion and marriage. Same for drug policies.

The phrase “We the People” and the statement about all people being equal DOES NOT make it mandatory that every state be uniform in the way it approaches all people being equal. The slavery clause in the original Articles should demonstrate this. The reference is to all people as it concerns the US Government itself. The US Government is forced to treat all people equal that comes before it and NOT before the states.

The US Constitution was simply a contract between the various states, allowing a central government to accomplish certain specific things that came before them, representing the states and the people equally before each other and the world, through the Federal Government as circumstances dictated.

Michael– Deo Vindicabamur

#2 Comment By Michael Lamb On June 12, 2013 @ 5:28 pm

Consider this:
I have a business proposition for you… Consider this:

Let me ask you something… Claim you are a businessman/woman/nurse…whatever. Say, you and others were trying to make an agreement. There is this business venture that requires two or more people to sign a contract that they arrange between themselves. Near the end of the contract, it would read as follows:

The undersigned do agree that we will forever stay in said contract with no recourse to ever withdraw. There are NO provisions for ever withdrawing from this contract and it is forever bound to include ALL your children and heirs, including ALL of society that may be born within the territory of this contract when accepted.

So, let me get something straight; You are going to sign away the inheritance(power of withdrawing) of not only yourself, but all your children and they will never have a say as to being released from that contract. No mater what happens to them, they MUST follow that contract or be classed as traitors and subject to the courts for punishment.

That is EXACTLY what you are claiming
Lincoln is claiming and saying the US Constitution is saying the same thing, and it does NOT! Besides that would be foolish to sign into a contract that you could never get out of…. Do you wish enslavement on everyone through the government and them not have a say?

Remember: The States created the Federal Government. The Federal Government did not create the States in the beginning. Remember: The Federal Government “supposed” to be restricted from any actions EXCEPT those “SPECIFICALLY” granted it by the US Constitution.

Or how can one claim freedom and sovereignty when they are stuck in a contract and can’t leave? Or stated, one can’t be free unless they can choose to leave…

Michael Deo Vindicabamur

#3 Comment By J.D. On June 12, 2013 @ 7:35 pm

The majority of Southerners were not in favor of the slaveholders’ rebellion, and no amount of feeble, sophomoric argument or inappropriate analogies (the relations between different levels of government within a federated republic are hardly comparable to those of a legal contract or a marriage) will change that. It is an historical fact.

#4 Comment By Michael Lamb On June 12, 2013 @ 9:39 pm

So J D;
Who made you supreme of all knowledge knowing what Southerners were or were not in favor of? Where are all your statistics and documents? I could point you to the vote tabulations of various states that shows you don’t know what you are talking about, but I’ve learned there is no use debating people who speaks out of pride and haughtiness.

You don’t have a clue as to why each of the Southern States seceded except to to repeat the Court Historians(Revisionists) views that it was about slavery.

I’ll say this about the slavery aspect. Each state had its’ own ideas and values about the merits of secession. Four states, NC, VA, TN and AR seceded not because of slavery or tariffs, but because they knew that Article 3 Section 3 prevented them from making war against any other state.(Part of State’s Rights being independent countries.) They were in no way wanting to fight any other state, Northern or Southern. And they had a popular vote of the secession issue, not once but twice. The first time the states of NC and VA voted to stay in the union. After Lincoln’s unconstitutional call-up of men to fight SC and requiring the states to furnish supplies and the land for the armies to travel across, they voted again, and this time to secede.

There is no longer any debate to the fact that the war was NOT over slavery. No Court Historians will formerly debate the topic any longer against real opposition. They simply cannot prove their assertions. Proof overwhelmingly shows it was not over slavery.

I have personally defeated several professors on this very same issue in the past. Yet I find it desperate from people like you who must grasp onto the last straw in order that you maintain control over everyone and everything around you.(Typical Union man or Federalist or liberal or Yankee.) You and other apologetic war-slavers, claiming the war was over slavery have lost your ability to continue this lie. In the process you have also lost your ability to manipulate the knowing public supporting your lie. Because of this you have lost power and dominion, holding such over the heads of others while blackmailing everyone out of civil rights, money and into welfare roles. Your game is up!

Michael– Deo Vindicabamur

#5 Comment By Aaron Investigates On June 13, 2013 @ 3:15 am

“Since Aaron doesn’t see the need to prove any point he personally chooses to declare axiomatic, there is really no point is talking to him. Its like arguing color with someone who is color blind.”

Funny…and proves my point.

I’ll note you failed to address any of my points while continuing to make declarations of your own.

Yep…as predicted…..

#6 Comment By Br’er War On June 13, 2013 @ 9:01 am

“The majority of Southerners were not in favor of the slaveholders’ rebellion “

This was true even of the upper echelons of Southern society. The spectacle of former Unionist politicians leading Confederate regiments was one of the war’s many grim ironies.

#7 Comment By EliteCommInc. On June 13, 2013 @ 11:53 am

Nothing quite so compelling as calling something a historical fact and using as support the statement:

“It is an historical fact.”

Or so compelling as “no amount of feeble, sophomoric argument or inappropriate analogies (the relations between different levels of government within a federated republic are hardly comparable to those of a legal contract or a marriage)”

Without having to provide evidence or analysis as to why
. . .

#8 Comment By J.D. On June 13, 2013 @ 3:08 pm

There were no “vote tabulations of various states” because none of the states were given the right by their elective representatives to vote directly on the question of secession.

EliteCommInc: Forgive my brusqueness, but in the past, whenever I — or anyone else — has provided such evidence, it’s been either ignored or dismissed as the work of “court historians.”

I recommend the work of David Potter (a Southern-born historian), particularly “The Impending Crisis” and “Lincoln and His Party in the Secession Crisis.” Stephanie McCurry’s recently published “Confederate Reckoning” is also enlightening.

#9 Comment By EliteComminc. On June 13, 2013 @ 5:49 pm

Be as brusque as you feel need be. But I am clear that there is no legal evidence on the issue. The Constitution never considers the question. While two Presidents by force demanded union assent. There is one avenue of approach for unionists and that pertains to rebellion, but that was passed after the civil war in the millue after the fact. We won so we will say — you can’t. The 14th amendment adddresses the issue — afterwards.

But there is some manuevering room — with this Clause and section — though it gives the executive branch nearly “monarchial authority” in civil action.


Article I, Section 8 – The Legislative Branch – “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy”

Article II, Section 2 – The Executive Branch – “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States””

As CNC, if the executive decides that a state is in rebellion, he need not request anything from Congress. So Ca. with it’s medical marijuanna statute is violating federal law — and does so willfully — Can the exec. branch declare such behavior treasonous and therefore use force to compell the state —- ?

The more I look into it. I think the issue of nullification – which is not new or all that radical given its history, I am leaning that a state can decide to cecede — nullification is another matter — because while a state is a member of the union — it is bound by the Constitution as the law of the land.

I am not sure there is much room to nullify federal statutes.
They are not so much dismissing that as evidence. It’s just that it is a fairly biased perspective and does not examine the matter soley Constitutionally — which is where I rest. I tend to take the document as it is written. There is only cloudy area for for me and that is the commonly referred to ‘slavery clause.’ It refers to slaves as persons and as such contradicts every aspect of the Constitution for these people residing and born in the country. If they had not called them people — it would have made ore sense.

Anyway — if you have some line of analysis other than the North says so — which is in fact what the Civil War decided —

But gain — there’s room on the question of the firing on Fort Sumpter and the executives response.

#10 Comment By EliteComminc. On June 13, 2013 @ 6:34 pm

““The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
– Article One, Section 9”

I have no issues granting that the firing on Fort Sumpter made the question of was and therefore union moot. Had the South not fired on Fort Sumpter — that is another matter.

I missed this earlier comment had I read it. My response would be that above — no issues. Excuse my over sight == it was not deliberate.

#11 Comment By Siarlys Jenkins On June 14, 2013 @ 1:00 am

Michael Lamb, are you really equating frameworks of government adopted by an entire community, or communities, to individual human beings? Because the two are not equivalent. Every individual in a community relies on the law to remain consistent, whereas nobody but you and an individual party you enter into a contract with is affected by your contract.

There is, however, a legal phrase “revocable by mutual consent” which is distinct from “revocable at will.” A contract can read either way. One requires agreement of all contracting parties to dissolve the contract. There are also “covenants running with the land” that, once written into a property deed, are binding forever on all future buyers, owners, and sellers.

Only in your own mind is there no longer any contention that the Civil War was about slavery. My reading on the subject (like you, I was not there to witness it myself), convinces me that it was ALL about slavery. You are free to differ, but not to pompously pretend that your impressions are universally accepted. You appear to have had some very shallow and weak professors. Or maybe you didn’t really defeat them — just convinced yourself of what you already believed.

There are millions of liberals, union men, Yankees, and federalists, so labeling someone as typical of any of the above hardly establishes that they are ipso facto unworthy of consideration. But my great-great-grandfather was a Jacksonian Democrat, which is why he fought in the 11th Tennessee Cavalry, United States Army. Don’t peddle your insipid stereotypes as arguments of integrity.

Aaron, it would be a good thing if your analytical skills were a match for your arrogance. I too am affronted when someone reiterates a point without addressing arguments to the contrary I have already put on the table. But I discern no “points” in your last comment that are not an argument over premises. You are entitled to your own opinions, but you are not entitled to your own facts.

EliteCommInc, I will pose only one question: How can a state that secedes not be ipso facto in a state of rebellion? Your earnest review of constitutional language does you credit — it provides an argument worthy of serious scrutiny. But I don’t see how the language you cite supports your conclusion.

#12 Comment By EliteCommInc. On June 15, 2013 @ 8:43 am

Easy peasy . . . had the South not fired on Fort Sumter, they could have made a strong case for cecession. The attack on Fort Sumter, made it an act of war.

That first shot changed the nature of the question.

#13 Comment By EliteCommInc. On June 15, 2013 @ 8:50 am

One can advance all of the legal arguments they wish — the question is certainly settled by the Constitution.

Is the simple matter of ending my relationship with the union — the rebellion in question — I would contend that referenced in the Constitution is acts of war — not I quit or divorce.

#14 Comment By EliteCommInc. On June 15, 2013 @ 9:01 am

correction: the question is certainly not settled by the Constitution.

#15 Comment By Merle Slocum On June 16, 2013 @ 12:15 am

While we anguish over the power of the Federal government and details of U.S. history, Globalism furthered by the utopian conceits of multiculturalism and political correctness, marches on. We are again in a battle against centralized powers bent on eliminating local and individual rights. The real fight isn’t only against Federal powers but Globalism. Individual rights and localism are our true causes.

#16 Comment By Austin Rebreh On June 16, 2013 @ 4:40 pm

As a Vermonter I can say that the state has done an excellent job at promoting local farms and business. For example, downtown Rutland does not have a single fast food restaurant on its Main Street. Also, the independent farmer is still a vibrant force, there are currently five farms within one mile of my house.

The state is also pretty self-sufficient and we have several laws that passed that were without the blessings of the Federal Government.

It should be noted too that when the storm hit Vermont two years ago we were without emergency helicopters because they were being used in Iraq.

That being said, while I do view Vermont as a model state of self-sufficiency, independent thinking, and healthy small town communities, I do not believe the state should secede. While a state in the 21st century can become more self-reliant, we have to handle the facts that modern living requires an extensive trade network.

#17 Comment By EliteCommInc. On June 17, 2013 @ 11:24 pm

“While a state in the 21st century can become more self-reliant, we have to handle the facts that modern living requires an extensive trade network.”

It could be that the modern age is more peoperly suited for a confederacy of states than a union. As yourself have noted and I have not examined the economics of Vermont’ — so, I have no clue, it is a state of some self sufficiency… California used to be.

#18 Comment By Ed On July 5, 2013 @ 9:56 pm

As the tyranny of the Federal Government becomes more self evident – Obamacare, NSA surveillance, militarized law enforcement, TSA etc., etc., then calls for States to secede shall become ever more common.