Know Your States’ Rights
Nullification: How to Resist Federal Tyranny in the 21st Century, Thomas E. Woods Jr., Regnery, 309 pages
By Jeff Taylor
What happens when the referee in a ballgame is a member of one of the competing teams? What if this ref is imbued with overweening confidence in his side’s natural superiority, and he’s so sure of his own sense of fair play that any questioning of his calls is deemed illegitimate? Meet the United States federal judiciary.
Self-righteousness and concentrated power are a dangerous combination. Their conjunction in American politics can be traced to the rulings of Chief Justice John Marshall, an arch-Federalist who shared Alexander Hamilton’s belief in political centralization. The federalist cause from which their party took its name was a distinct move away from the decentralism of the Articles of Confederation, but its advocates insisted that federalism did not mean a consolidated, unitary government of the sort favored by kings and despots. The U.S. Constitution and federal legislation would be the highest law of the land, according to the Supremacy Clause. But traditional rights and responsibilities would be reserved to the state governments and to the people themselves. This principle was enshrined in the Tenth Amendment.
The balance between the Supremacy Clause and the Tenth Amendment was maintained while each level of government stuck to its constitutionally proper areas of concern. But gradually federal power intruded into areas formally—and formerly—reserved to the states. Beginning with the Marshall court in the early 19th century, with its invention of the power of judicial review and its creative use of constitutional loopholes, the federal judiciary facilitated this growing imbalance. The Supreme Court’s bias should have been no surprise since it belonged to one of the competing levels of government. Once the federal judiciary decided to begin ruling in favor of its own team, there was no official mechanism that could stop the concentration of power in D.C.
This is where Thomas Woods Jr. comes in. His new book shines much-needed light on the doctrine of nullification. Long marginalized an instrument of the racist, neo-Confederate fringe, today when the idea of states’ rights makes news it is more likely than not in connection with the burgeoning Tea Party phenomenon. But a political movement held together more by a common enemy than by a shared platform might not be the best vehicle for the restoration of constitutional balance. Woods’s book may help spark a wider, better-informed, and less partisan movement on behalf of states’ rights.
Nullification, also known as interposition, is simply the repudiation or ignoring of a federal law by a state government. Rooted in an honorable tradition, it can be a powerful tool for the people and a means of curbing centralized power. In recent decades, the first organized effort to nullify federal laws came from the Left and the libertarian Right in the form of medical-marijuana initiatives. What began in California in 1996 with Proposition 215 has spread, with more states attempting to legalize cannabis for medicinal and recreational use. In the past few years, constitutional conservatives have also used nullification to protect Second Amendment rights and to block the Real ID Act of 2005. Most recently, there have been state efforts to overturn or opt out of Obamacare.
This is the subject matter expertly covered by Woods. Half of his book consists of primary sources: 11 essential documents plus the Constitution itself. The evidence Woods collects is taken from a 60-year span of American history, the pre-Leviathan period before the Civil War, Progressive era, New Deal, Cold War, and Great Society entombed states’ rights seemingly forever. Woods has performed a public service by assembling important but largely forgotten documents in one convenient location. Here you will find the text and explication of the Virginia and Kentucky Resolutions of 1798-99, New England’s nullifying response to Jefferson’s Embargo Act, the South’s dispute with Jackson over tariff policy, and Wisconsin’s rejection of the Fugitive Slave Act.
Nullification is a brief book in terms of original authorial content, but what’s here is wonderful. Woods is a scholar, yet his writing style is accessible, with just the right amount of punch. He sets forth the case for nullification with logic and nuance but in a conversational tone.
Woods succinctly summarizes the reasoning behind interposition:
Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow—regardless of elections, the separation of powers, and other much-touted limits on government power.
Nullification spends some time on each of the three big constitutional loopholes used by the feds to enlarge their scope of power since the 1810s: the general welfare clause, commerce clause, and necessary and proper clause. The neglected Tenth Amendment is explained, as are the Virginia and Kentucky Resolutions of Madison and Jefferson. It was these state resolutions, secretly penned by two of our most illustrious founding statesmen, that first presented nullification as a remedy for federal usurpation of state power and the suppression of constitutionally protected individual freedoms. The Principles of ’98 played a role throughout the first six decades of the 19th century, invoked by Federalists, Democrats, Whigs, and Republicans for a variety of reasons.
John C. Calhoun’s famed advocacy of nullification, in defense of South Carolina’s right to reject high federal tariffs, is also examined by Woods. Less well known, but closer to the heart of the Jeffersonian tradition, was the use of nullification by abolitionists in Wisconsin and other northern states to help runaway slaves. The ability of a state to defy federal authority was a tool not only of slaveowners but also of anti-slavery crusaders. In fact, the Underground Railroad was a personal form of nullification on a mass scale.
Although Woods approaches his subject from the Right, he tries to show those on the Left that they need not be afraid of the word “nullification.” His first chapter recounts contemporary nullification efforts linked to causes that are congenial to most civil libertarians and many modern liberals: repeal of the Real ID Act, medicinal use of marijuana, state-level Firearms Freedom Acts, and the antiwar Bring Home the National Guard movement.
Jeffersonian and small-is-beautiful strains of liberalism notwithstanding, however, Woods concedes that today’s liberals—comprising what he calls “the imperial Left”—are largely hostile to decentralization of political power. Sad but true. Even the Green Party, which has decentralization as one of its key values and grassroots democracy as one of its pillars, often defaults to a knee-jerk defense of federal bureaucratic control in policy debates, thereby acting more as an auxiliary of the Democratic Party than a genuine rival.
Woods says “the most important question of all” for Americans is what the United States is supposed to be. He’s talking fundamentals, the nature of the Union: the compact theory of Jefferson and Madison vs. the nationalist theory of Hamilton and Marshall. We learn from these pages that the Constitution originally began with the words “We, the States …” rather than “We, the People …” Not wanting to sound presumptuous, and perhaps desiring to appeal to democrats fond of popular sovereignty, the Framers’ Committee on Style changed the wording before sending the document to the states for ratification. Nevertheless, at ratifying conventions the Federalists themselves reaffirmed the principle of states’ rights, as did Madison and even Hamilton in their writings and speeches. Even before adoption of the Tenth Amendment, the Constitution was “sold” as a true federal system, with most domestic powers reserved to the states.
The final chapter of Nullification brings the question into the age of Obama. The only false note in the book is played at the opening of this chapter. To his credit, Woods mentions the decentralized political structure of the Middle Ages in Western Europe. He goes a bit too far, though, when he writes, “Princes risked losing population (and their tax base) if they engaged in excessive taxation or interference in their people’s economic lives. People could simply move to another, less oppressive jurisdiction, which was never too far away.” Uncharacteristically for Woods, this is oversimplified. A few pages later, he more than makes up for this small misstep by cleverly connecting criticism of nullification with a quote denouncing states’ rights—whose author is then revealed to be Adolf Hitler.
Woods rounds things out with some practical ideas and a down-to-earth assessment of where we are today. He suggests amending the Constitution, by a national convention called at the request of the states, if necessary; state creation of federal tax escrow accounts; and jury nullification on an individual citizen level. As a populist-leaning libertarian, he cites Murray Rothbard as exposing the Establishment’s divide-and-conquer strategy, asserting that the government is “robbing all classes, rich and poor, black and white, worker and businessman alike” and “ripping us all off.” We ought to “strive to see all of these groups united, hand in hand, in opposition to the plundering and privileged minority that constitutes the rulers of the state.”
During the past couple of years, we have seen the publication of important books arguing that our political system needs reform. The Revolution (Ron Paul) urges a return to the wisdom of the Founding Fathers. Grand Illusion (Theresa Amato) wants to break the partisan duopoly via third parties. Only the Super-Rich Can Save Us! (Ralph Nader) hopes for help from public-minded wealthy individuals. Vote the Bastards Out! (Spencer Gantt) targets incumbents regardless of party. Bye Bye, Miss American Empire (Bill Kauffman) endorses secession. All are good books by perceptive authors, and all deserve to be read. Yet Woods’s book, and his reform tool of choice, are probably our best bet.
Woods is most helpful because he is most realistic. Nullification is not just an ideal. It is a reality. We have been seeing it in our time since 1996, when California partially nullified the cannabis provision of the Controlled Substances Act of 1970. The idea has been embraced by Democrats and Republicans in other states for other reasons. It pits power against power, not relying solely on the inspiring but elusive notion that average Americans can fight Washington. It’s hard enough for a citizen to fight City Hall. But governors and state legislatures can ignore or oppose the president and Congress, if they so choose.
Here’s another plus: disparate groups do not have to join together in one tenuous coalition. Nullification is a tactic that is ideology- and party-neutral. It has across-the-board potential. The people of Indiana, Massachusetts, California, and Alabama can all choose their own desirable paths for statecraft and commonweal. “Variety is the very spice of life,” Cowper wrote. The Anti-Federalists, and even some original friends of the Constitution such as Jefferson and Madison, agreed. We can add our assent today. Tom Woods shows the way.
Jeff Taylor is Assistant Professor of Political Science at Jacksonville State University. He is the author of Where Did the Party Go?: William Jennings Bryan, Hubert Humphrey, and the Jeffersonian Legacy.
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