Reclaiming The Jeffersonian Tradition Of Nullification

From Campaign For Liberty:

Reclaiming the Jeffersonian Tradition of Nullification


By Kevin Gutzman

Also by Kevin Gutzman:

The Bill of Rights Was Meant to Limit Federal Power 12/17/09



Published 06/28/10



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





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



Under today's constitutional law, the "Federal" (really now national) Government can do anything it wants. The speaker of the House literally laughs at the implication that it cannot. For anyone who knows history and loves liberty, this is a worrisome situation.



What to do?



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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





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