Nullification: A Terrible Idea Whose Time Hasn’t Come

There’s been some buzz lately about states kicking the idea of nullification around.  State legislators in Nebraska have been circulating a little tome by Thomas Woods on the subject, and there’s been some news reports of states considering the idea with regards to health care.  Before conservatives go trumpeting this idea as some way of saving the republic, let’s keep in mind something: it’s a bad idea that happens to be unconstitutional.

Whenever the idea of nullification comes up we inevitably hear about Thomas Jefferson’s Kentucky Resolution and James Madison’s Virginia Resolution.  They were penned in response to the passage of the Alien and Sedition Acts of 1798.  The key passages from Jefferson’s resolution is as follows:

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5. Resolved. That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

Jefferson here fully endorses the doctrine of nullification.  This means that states can completely reject any federal laws that it deems unconstitutional.

The problem with linking  Jefferson and Madison is that Madison’s Virginia Resolution does NOT endorse nullification.  Rather, Madison endorses the theory of “interposition.”  All this means is that states may come together and express their dissatisfaction with federal law and push for repeal.  But they can go no further than this.  The Resolution states:

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

Madison clearly does not go as far as Jefferson.  In point of fact, Madison completely opposed the idea of nullification, and expressly stated this opposition during the Nullification Crisis that occurred during Andrew Jackson’s presidency.  Madison condemned nullification in his correspondence.  In a latter to Nicholas Trist he attacks both nullification and secession:

I partake of the wonder that the men you name should view secession in the light mentioned. The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater fight to break off from the bargain, than the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of –98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the plural number, States, is in every instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional. It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word respective, prefixed to the “rights” &c to be secured within the States. Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied. But what can be more consistent with common sense, than that all having the same rights &c, should unite in contending for the security of them to each.

In the draft of his notes on nullification he writes more fully on this topic, and also alludes to the Virginia Resolution’s more moderate call for interposition.

In addition to Madison, Alexander Hamilton was critical of the concept of nullification.  Hamilton does not address the topic directly, but in Federalist 15 and 16 Hamilton discusses the inefficiencies of the  confederate system, and indeed support for the doctrine of nullification would seem to turn the US back into some kind of neo-confederate form of government.  (For summaries of the two papers, go here and here.)  Hamilton seems to anticipate the nullification issue in Federalist 16, writing:

To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

The pausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only not to act, or to act evasively, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.

But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

Nullification completely flies in the face of the purpose of the Constitution.  We would be back to era of the confederacy, with states retaining almost unlimited authority if they were able to ignore federal law.  Moreover, nullification is a contravention of Article VI of the Constitution.

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 notwithstanding.

A state law that nullifies federal law would be a breach of this agreement.

States are left with innumerable devices at their disposal to fight back against unconstitutional legislation.  I applaud the states that have filed lawsuits against Obamacare.  They have every right to unite informally to oppose such measures.  Nullification, on the other hand, is an unconstitutional and ultimately chaotic method of addressing federal malfeasance.  I would hope that states are smart enough to reject this plan of action.

62 Responses to Nullification: A Terrible Idea Whose Time Hasn’t Come

  • Maybe something far better would be a constitutional convention called by some states to do some Spring cleaning in the form of several amendments:

    Clarify the limits of the 10th amendment and declare several dozen laws that violate that amendment to be null and void.

    Draw up a list of the top 100 federal judges who abuse the constitution and eject them permanently from the bench. Their failure as judges to do their job is what caused this in the first place.

    Clarify the 1st amendment, in particular that the free exercise and no establishment part means free exercise and no establishment. Establishment being along the lines of the Church of England.

    Put some sort of absolute size limit on the Federal Register–if one page goes in, one must come out.

    Just some ideas, but at this point, the country is clearly off the rails as far as the constitution goes. Short of leaving the union to one degree or another, maybe it is time for the fly-over states to band together and settle some issues. Sounds like a good cause for the tea party, and would place the constitution in front of the public debate. Was that more along the lines of what Madison would have endorsed?

  • Madison in his letter to Trist cited by Paul goes on in the next paragraph to state as follows:

    “It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.”

    Scholarship in support of nullification then as now, was unbelievably shoddy. This is a case of knaves seeking to lead fools.

  • Mr. McClarey, it is you whose scholarship is shoddy. As Kevin Gutzman showed in the Journal of the Early Republic, Madison obviously changed his mind. Clearly, in the Report of 1800, he was indeed saying what everyone at the time took him to be saying. Madison also, in his later years, tried to pretend Jefferson had never even used the word “nullification” When the draft of the Kentucky Resolutions of 1798 in Jefferson’s own hand was presented to him, he had to back down.

    Anyone citing the Supremacy Clause against nullification is not even entitled to an opinion on the subject. Yes, I realize nullification does not fall along the spectrum of approved opinion that ranges from Hillary Clinton to Mitch McConnell, but that doesn’t mean it’s wrong — or, laughably, “unconstitutional.” If you understood the nature of the Union you would see why Jefferson’s position is so compelling. Instead, you repeat a few left-wing talking points and leave it at that.

    For an extremely basic primer, see http://www.StateNullification.com.

  • Presented with the actual words of the Founding Fathers, Mr. Woods resorts to name-calling and laughable assertions about the ideology of his interlocutors. I guess I know which historian to leave off my Amazon wish list.

  • Paul,

    Your statement about the Supremacy Clause is inaccurate for a few reasons.

    One- You left out the fact that the Supremacy close is only valid if the law passed by Congress is among those allowed Artcle I-Section 8. If the Congress wants to pass something outside that section, it isn’t Constitutional, thus null and void under the Supremacy Clause.

    Two- The 10th Amendment also limits the Supremacy Clause. Since it is an Amendment, it takes priority over the original text therefore it takes precedent. So again, anything not mentioned in Article 1-Section 8 falls back to the individual states and the people.

    We can debate on the interpretations of the Article 1-Section 8, but I do think the modern belief in these various clauses makes no sense. Everyone at the time of the founding believed the Federal Government should be limited. However, modern interpretations doesn’t limit the government.

    If the government can control what I grow on my own land even when I am not selling it and just using it for personal use, I believe that is a government that isn’t limited as the founders envisioned.

    You have another problem with your point of view. How does one make the case that these individual colonies that became individual states would give up the sovereignty you are suggesting when they just fought a war for their independence? Why would just turn around and create another nightmare government too much control over them without holding the belief that they can be a voice when the Federal Government oversteps it’s Constitutional authority.

    Sorry Paul, your point of view makes no sense.

  • Paul:

    It seems that it is the Federal government is the only party that can nullify treaties and laws that were made in good faith. The case of Lone Wolf v. Hitchcock is evidence to me that Congress can break their word with soveriegn indian nations with “plenary power.” Maybe it is high time that we have “chaos” and nullify laws of the federal government. Turnabout is fair play.

  • One- You left out the fact that the Supremacy close is only valid if the law passed by Congress is among those allowed Artcle I-Section 8. If the Congress wants to pass something outside that section, it isn’t Constitutional, thus null and void under the Supremacy Clause.

    Sorry, I didn’t realize there was a sub-clause to Article VI. Was this also written in the same invisible ink that guaranteed the right to privacy and abortion?

    If a law passed by Congress is unconstitutional, there are several remedies to addressing this issue. As a conservative it’s understandable to be irate at the massive growth in the powers of the federal government, especially when aided and abetted by one of the institutions designed to check Congressional action (the Supreme Court). The solution to unconstitutional aggression is not to resort to further unconstitutional aggression.

    If the government can control what I grow on my own land even when I am not selling it and just using it for personal use, I believe that is a government that isn’t limited as the founders envisioned.

    Again, we agree. But if the states become 50 unique arbiters of constitutionality, where does that leave us? What if the state acts unconstitutionally in deeming a perfectly legitimate law unconstitutional? Where does it end? There is one sovereign authority – not 50.

    You have another problem with your point of view. How does one make the case that these individual colonies that became individual states would give up the sovereignty you are suggesting when they just fought a war for their independence? Why would just turn around and create another nightmare government too much control over them without holding the belief that they can be a voice when the Federal Government oversteps it’s Constitutional authority.

    Sorry Paul, your point of view makes no sense.

    Take it up with the Founders, John. Read through the Federalist Papers and the other assorted documents. The revolutionaries didn’t throw off one form of government just to embrace the sort of democratic despotism that they feared, rightly or wrongly, was being created by the Articles of Confederation government.

    As I wrote in this post, the Constitution was specifically designed to increase the powers of the federal government. The Confederation government, the Framers argued, had grown ineffectual. What the Constitution did not do was grant unlimited authority.

  • I rather suspect that James Madison understood the Constitution somewhat more accurately than Mr. Woods. Of course Mr. Woods is not a dispassionate scholar. He is a paladin of a point of view that was defeated at Appomattox. His views of Nullification would no doubt be lustily cheered at a meeting of the League of the South, less so by non neo-Confederates.

  • Yeah Donald, and I guess breaking treaties with Indians was OK and that our occupation of those lands settled the issue. Why don’t you replace Appomattox with Sand Creek or the Battle of Washita.

  • My point Efrem is that like the Confederacy which is the apple of his eye, (don’t accept my statement for that, read Mr. Woods’ Politically Incorrect Guide to American history), Mr. Woods holds to doctrines which have been rejected in theory, in practice and on the battlefield. You cannot have a country where a state can unilaterally determine which laws of the Union will be followed within its borders and which ones will not. That is to replace government by anarchy. Mr. Woods uses a very strained view of American history in order to try to reach libertarian\paleocon ends as can be seen by reading some of his columns at Lew Rockwell. He is not engaged in academic debate, but is rather attempting to help raise support for his political point of view. He certainly is entitled to peddle any brand of politics to which he adheres. He is not entitled to twist the history of this nation to do so.

  • Because that would be a non-sequitur.

  • Mr. Zummo,

    I think we can agree that chasing the quotes of our founding fathers is ultimately a dead end here. You can quote Hamilton while Woods quotes Jefferson; and Woods can quote ‘1798 Madison’ while you quote ‘1835 Madison’. It’s going to be a wash.

    In light of this, I think it might be useful to try relying on our own brains/morals here.

    In that spirit, I have a genuine question for you: You say in this article that the states have “innumerable devices at their disposal to fight back against unconstitutional legislation.” I assume these “devices” to be elections, constitutional amendments, the Supreme Court, activism, etc. Now, nevermind the fact that the Federal Government has run roughsod over the states throughout the 20th Century… Let’s just consider the following scenario: The U.S. Federal Congress passes a law banning elections, the U.S. Federal President signs it into law, and the U.S. Federal Supreme Court confirms it’s constitutionality. Under this circumstance, are we simply resigned to the fate of a dictatorship?

    I don’t know about you, but a government that can mandate the kidnapping of slaves, the internment of over 100,000 people, that growing food for your own consumption is “interstate commerce”, and (now) that we purchase products from private companies, is not a government that you “play ball” with. It’s a government that you resist.

    History has shown us the horrors of centralized political power. Woods’ grasp of history is excellent, but his grasp of the inherently dangerous nature of centralized political power is what makes him great. I hope that you’ll consider the implications of Woods’ position in that context.

  • The point is Donald is that the question of nullfication is not settled with force like the Civil War just like the issue of Indian land soveriegnty was not settled with force via fraudulent taking of their lands.

  • “This brings us to the expedient lately advanced, which claims for a single State a right to appeal agst. an exercise of power by the Govt. of the U. S. decided by the State to be unconstitutional, to the parties of the Const, compact; the decision of the State to have the effect of nullifying the act of the Govt. of the U. S. unless the decision of the State be reversed by three-fourths of the parties.

    The distinguished names & high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.

    If the doctrine were to be understood as requiring the three-fourths of the States to sustain, instead of that proportion to reverse, the decision of the appealing State, the decision to be without effect during the appeal, it wd. be sufficient to remark, that this extra constl. course might well give way to that marked out by the Const, which authorizes 2/3 of the States to institute and 3/4. to effectuate, an amendment of the Constn. establishing a permanent rule of the highest authy in place of an irregular precedent of construction only.

    But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the U. S. unless overuled by 3/4 of the States.

    Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over 1/4 of the U. S. — that is, of 7 States out of 24 — to give the law and even the Constn. to 17 States, each of the 17 having as parties to the Constn. an equal right with each of the 7 to expound it & to insist on the exposition. That the 7 might, in particular instances be right and the 17 wrong, is more than possible. But to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself.

    It is to be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted by the States as a whole, it being a part of the Constitution that not less than 3/4 of the States should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases when peculiar interests were at stake, a proportion even of 3/4 is distrusted, and unanimity required to make an alteration.

    When the Constitution was adopted as a whole, it is certain that there were many parts which if separately proposed, would have been promptly rejected. It is far from impossible, that every part of the Constitution might be rejected by a majority, and yet, taken together as a whole be unanimously accepted. Free constitutions will rarely if ever be formed without reciprocal concessions; without articles conditioned on & balancing each other. Is there a constitution of a single State out of the 24 that wd. bear the experiment of having its component parts submitted to the people & separately decided on?

    What the fate of the Constitution of the U. S. would be if a small proportion of States could expunge parts of it particularly valued by a large majority, can have but one answer.”

    James Madison to Edward Everett, August 28, 1830

    http://www.constitution.org/jm/18300828_everett.htm

  • Paul,

    The federal government is out of control and ALL mechanisms to curb it have failed. It has run a muck to the tune of trillions in debt, rights are routinely trampled, even to the point that they state they give us our rights (in direct defiance as to what was written in the Declaration of Independence). We have even gone so far as to institute a patriot act that shreds the last semblances of the document. We should be marching on DC with our torches and pitchforks but, barely a word is spoken and now we get articles like this berating us that this is not the way. We as a people no longer have any semblance of sovereignty or of our republic, we are surfs to a huge monopolistic plutocracy that is for sale to the highest bidder. I don’t care if nullification is constitutional or is unconstitutional, whatever will help try to put this monster back in its box or kill it! One or the other.

    I also think that your even addressing nullification as an “unconstitutional” idea is laughable. Like anyone even pays attention to the Constitution, ESPECIALLY in our own government. Like most, your article only calls on the document to make some inane point much like people who call on the Bible to justify their adulterous behavior or their sins in general. You have no reverence for the document otherwise, you would look at every angle to try to insure its preservation. Everyone has some idea that this doctrine (nullification) will create chaos…our country is IN chaos and when the dollar crashes, it’s only going to get worse.

  • Like anyone even pays attention to the Constitution,

    So the answer to unconstitutional action is to engage in more unconstitutional action? That’s like incurring more debt in an effort to pay down one’s current obligations.

    I think we can agree that chasing the quotes of our founding fathers is ultimately a dead end here. You can quote Hamilton while Woods quotes Jefferson; and Woods can quote ’1798 Madison’ while you quote ’1835 Madison’. It’s going to be a wash.

    The people I am citing were actual authors of the Constitution. Madison’s writings from 1798 does not contradict what he said in 1835. If that’s your idea of a wash, then you are clearly not a very good judge.

  • Brett, the rest of your hypothetical assumes a rather far-fetched example of government over-reach. Obviously all human beings retain the right of revolution in case of true tyranny. But if this is the best example you can come up with to defend Woods’ train of thought, then I’m quite comfortable maintaining my position.

  • It worked for OJ Simpson — sorta.

  • Paul,

    Excuse me, I’m quite sure that I listed some very real examples of tyrannies that have already been perpetrated against the American people—(the Fugitive Slave Law, the internment of over 100,000 human beings during WWII, the confiscation of farmers’ personal produce, and now, the requirement that we purchase a private product).

    Let’s get this straight, Paul: If you were a state governor and the U.S. Federal Government ordered you to intern your fellow citizens, you would do it? Or would you refuse to enforce (nullify) it?

    Simple question. I cant wait to read your answer.

  • Oh and, for the record, the purpose of my (ostensibly hyperbolic) hypothetical scenario was to demonstrate the fundamentally flawed nature of the system that you appear to be defending—and to bring your logic to its proper conclusion. (Though, unfortunately, for many Americans there is nothing hyperbolic or hypothetical about it—eg the Japanese during WWII.)

    “The people I am citing were actual authors of the Constitution. Madison’s writings from 1798 does not contradict what he said in 1835. If that’s your idea of a wash, then you are clearly not a very good judge.”

    Extraneous. But you ignored Jefferson, why, exactly? Hamilton v. Jefferson = a wash, insofar as the opinions of the founders really comprise the point on which this issue pivots for you (which I highly doubt).

    You can’t just claim erroneously that you *know* the hearts & minds of the founders and then substitute that claim for actual arguments, especially when it comes to an issue as crucial as this.

    My point was that we should actually think about this issue for ourselves. I don’t think that that’s an unreasonable request.

  • What about the fact that nullification has been used, successfully at that, in the past. I wonder if the people that criticize Dr. Woods have even read the book or are they like the government, almighty and all knowing?

  • One of the many hilarious things about this latest boomlet for nullification created by Woods and his cronies in crankdom, is how it flies in the face of American history, not only in theory but in practice.

    They seize upon the Kentucky Resolutions and the Virginia Resolution of 1798 without really understanding what was going on. These were part and parcel of the ongoing political war of the Republicans against the Federalists, and as political theater they were quite successful in helping rouse public fury against the Alien and Sedition Acts which led to Republican victory at the polls in 1800. Once the Resolutions had helped achieve success at the polls, they were quietly abandoned by the Republicans since they had served their political purpose.

    In the Nullification Crisis of 1832, South Carolina’s first attempt to destroy the Union and start a civil war, a compromise was ultimately worked out in Congress to lower the tariffs and the nullification movement in South Carolina collapsed, much to the chagrin of some fireeaters like Rhett who would still be around to help start the Civil War in the secession crisis of 1860-61.

    Modern day advocates of nullification attempt to dragoon the personal liberty laws passed by some Nothern states to attempt to get around the fugitive slave law into the nullification debate. (I suspect that this example is drug in to get around the fact that throughout the history of this country nullification has often been allied with racist movements.) Of course such attempts were futile as the US Supreme Court ruled in 1842 that such laws were unconstitutional, as they clearly were at the time. What of course ended the fugitive slave law was the Civil War and the constitutional amendments that resulted. Mr. Woods, to show his thanks for this, is welcome to join me and my family next summer when we go to Lincoln’s tomb to pray for the repose of his soul.

    Nullification was often brought up by segregationists in their “massive resistance” campaign against Brown v. Board of education. As in the rest of American history, nullification went nowhere fast in this less than stellar moment in our nation’s history. Martin Luther King, Jr. referred to this in his I Have a Dream Speech in 1963:
    “I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”

    What made nullification more than a historical footnote today is of course ObamaCare, and the justified opposition to it, which I fully share. However, the political process is working. The Republicans took the House,made gains in the Senate, and control most governorships and state legislatures, largely because the Democrats acted completely fecklessly with no concern for the public opposition they were building. Suits against ObamaCare are proceeding with some success in the federal courts. Crack-brained nostrums like nullification are not needed in America, while our political and legal systems are functioning, which they are.

    I do confess however, that I almost hope that one of the States is foolish enough to think that nullification could work. The first federal lawsuit over the issue would rapidly establish that nullification has as much standing in the federal courts as a flat earth has in a geography class. The state government would then be in a position of obeying the ruling of the federal court, or calling the national guard to arms. One guess as to which course they would choose. Of course if they chose to attempt armed revolution I assume that Mr. Woods and his friends will be on the barricades, although that would be somewhat more dangerous than writing books or debating on the internet.

  • Good points, Donald. It is almost a form of right-wing utopianism. Also, if you look at the arguments made on this thread it seems that even the advocated for nullification concede that it’s not really a constitutional measure – just that the system is so broken that we have no other recourse. Well, I’m not ready to give up on the legitimate means at our disposal to fight back against an encroaching federal government.

  • Brett,

    Thomas Jefferson was in Paris during the writing of the US Constitution. Alexander Hamilton was an actual participant of the constitutional convention, was one of its leading proponents (despite mis-givings about the end product), and an author of a series of essays that provides more insight into what the Framers were thinking than any other resource. So yes, I do take his interpretation more seriously than Jefferson.

    You can’t just claim erroneously that you *know* the hearts & minds of the founders and then substitute that claim for actual arguments, especially when it comes to an issue as crucial as this.

    I cited their actual words. I didn’t just make blustery comments making up imaginary interpretations of what they said. That’s what you guys do.

    My point was that we should actually think about this issue for ourselves. I don’t think that that’s an unreasonable request.

    I would take that claim more seriously if you didn’t just blindly accept Thomas Woods’ shoddy research as as Gospel truth.

  • ***Paul,

    Excuse me, I’m quite sure that I listed some very real examples of tyrannies that have already been perpetrated against the American people—(the Fugitive Slave Law, the internment of over 100,000 human beings during WWII, the confiscation of farmers’ personal produce, and now, the requirement that we purchase a private product).

    Let’s get this straight, Paul: If you were a state governor and the U.S. Federal Government ordered you to intern your fellow citizens, you would do it? Or would you refuse to enforce (nullify) it?

    Simple question. I cant wait to read your answer.***

    P.S. I didn’t take any of Woods’ research as “Gospel truth”. If you recall, I said that it’s a wash. But completely discounting arguably the most influential founding father simply because he wasn’t physically at the Convention seems “shoddy” to me.

    In any case, I’ll cede the point—for lack of authority and sake of argument. You evaded my first (more important) comment (see above). I hope you’ll respond. Thanks.

  • Thanks Brett. I saw the question, but I thought my response was fairly obvious based on my previous comments. Maybe I need to type slower. In the case of clear government tyranny, we do reserve the right to revolution. If you can’t see the difference between your extreme hypothetical and the examples you cited, you clearly lack common sense and can’t be helped.

    Hamilton and Madison are more relevant because they would have a better understanding of the true intent of the Framers, seeing as they were actually there when the Constitution was written. Therefore I think they are in better position to interpret the Constitution than Jefferson.

  • Mr. Zummo,

    Tom Woods and John Lambert are correct. And for a respondent to say that Woods does not know his history demonstrates ignorance on the respondent’s side. Woods is a well-recognized scholar on the subject.

    As for Mr. McClarey’s comments about Madison, he is referencing a letter written nearly 35 years after the events in question. It is a well-known historical fact that in his later years, Madison contradicted much of what he, himself, had said in his earlier days, and also spoke and wrote much else that contradicted the recorded history of his own lifetime. Today we have a name for that: senile dementia.

    AT THE TIME OF ITS WRITING, the Virginia Resolution was clearly understood to advocate states “interposing” themselves between a usurping Federal government and The People. In effect this IS a call for nullification. Madison’s comments in his later life are simply not germane.

    The Kentucky and Virginia Resolutions did not carry the political weight of the day, which statists are quick to seize as justification for saying that nullification is a failed doctrine. But what they consistently fail to mention is that a very few short years later, the Alien and Seditions Acts were actively being opposed by the people and their respective states, which refused to support the Acts and in some cases passed legislation rendering them of no effect… BEFORE the laws expired when Adams left office.

    McClarey also has his facts about the “nullification crisis” of South Carolina wrong. Or at least very distorted. For one thing, S.C. was not trying to “destroy the Union” at all. It was merely trying to assert its right to nullify a law that it perceived to be unconstitutional: an unreasonable tariff. (And in fact they were right: the tariff was an intentional attack on the economy of the South on the part of the then Northern-dominated Congress).

    The fact of the matter, which McClarey actually states before going on to contradict himself, is that South Carolina did not back down, even under military threat, until AFTER Congress changed the tariff to something more to South Carolina’s satisfaction. That puts it among the first SUCCESSFUL cases of state nullification. Let’s make no mistake about that.

    As has been stated here before, the States were concerned with an overweening Federal government, and insisted on protection from it before ratifying the Constitution. The intentions of the Founders in the Bill of Rights, and the Tenth Amendment in particular, which was intended to solidify that protection, are very clear in light of the writings of the day, including the Federalist Papers.

    Brett also makes good points, about later (actual, successful, and historically unequivocal) nullifications of the Fugitive Slave Law and other such situations. And then we have modern examples of same: effective (25 states) nullification of Real ID. There also have been ongoing nullification of other unconstitutional acts of the Federal government, such as marijuana laws.

    There is no mistake about this, and true scholars of history like Woods understand the historical meaning of the documents, and their words and wording. (And he is far from alone: true students of this period of our history are in general agreement about the matter, which makes me wonder what Kool-Aid Mr. Lummo has been drinking.)

    Revisionist history, like that presented by Mr. Lummo, will never prevail unless or until they manage to re-write the actual history books. Which I do not think will ever happen. Too many people respect the actual facts.

  • Pardon me, I wrote “Mr. Lummo” when I clearly meant “Mr. Zummo”. Those were unintentional typographical errors, not an intent to slight the author.

  • Woods is a well-recognized scholar on the subject.

    You are mistaking book sales for expertise.

    It is a well-known historical fact that in his later years, Madison contradicted much of what he, himself, had said in his earlier days, and also spoke and wrote much else that contradicted the recorded history of his own lifetime. Today we have a name for that: senile dementia.

    Ah yes, let’s make stuff up in order to disregard all the stuff that contradicts what we believe. Who can contend with such scholarly arguments?

  • Paul,

    Maybe *I* need to type slower. I made no mention of my (ostensibly hyperbolic) hypothetical in my last comment, did I? I asked you about a real-world historical event.

    I’ll try one more time, since you seem at least somewhat receptive: If you were a state governor and the U.S. Federal Government ordered you to intern your fellow citizens, would you do it or would you nullify it?

    If the U.S. Federal Government ordered you to kidnap slaves so that they may be returned to their owners, would you do it or would you nullify it?

    If the U.S. Federal Government ordered you to force your fellow citizen to purchase a private product that he or she did not want to purchase, would you do it or would you nullify it?

    There is nothing hypothetical about these examples and, call me crazy, but I *do* happen to believe that interning over 100,000 human beings without due process is “extreme”. Apparently you disagree?

  • Oh, and I’m glad that you at least believe that human beings reserve the right to revolt against government.

    And nullification is a form of contained and peaceful revolution. We don’t need a blood bath every time the U.S. Federal Government oversteps its bounds. We can, instead—relying on our healthy and rational fears of centralized power—refuse to enforce blatantly unjust Federal laws.

    Look at what happened to the Real ID Act of 2005. States are simply refusing to enforce it! Is that unacceptable? (http://www.tenthamendmentcenter.com/nullification/real-id/)

    Is this OK, or would you rather wait until the government becomes a full-blown dictatorship before you would grant us permission to resist?

    I think you would do well to give these questions serious consideration. You’re coming off as a bit flippant towards this issue.

  • “As for Mr. McClarey’s comments about Madison, he is referencing a letter written nearly 35 years after the events in question. It is a well-known historical fact that in his later years, Madison contradicted much of what he, himself, had said in his earlier days, and also spoke and wrote much else that contradicted the recorded history of his own lifetime.”

    Completely untrue. Contrary to Woods and his fellow myth makers, Madison was never in favor of nullification. He merely restated late in life what he had always held. As to your comment about senile dementia, I have absolutely no doubt that Madison on his worst day was sharper than you on your best. His writings attest to this.

    “McClarey also has his facts about the “nullification crisis” of South Carolina wrong. Or at least very distorted. For one thing, S.C. was not trying to “destroy the Union” at all. It was merely trying to assert its right to nullify a law that it perceived to be unconstitutional: an unreasonable tariff. (And in fact they were right: the tariff was an intentional attack on the economy of the South on the part of the then Northern-dominated Congress).”

    Where to begin. The “Tariff of Abominations of 1828″ was actually, wait for it, the brainchild of John C. Calhoun. In order to head off an increase in tariffs, Calhoun decided to craft a tariff increase laden with increases on imports popular in New England, assuming that the New Englanders would vote against it. Enough voted in favor of it to pass it. I think that Calhoun was so hot for nullification partly out of embarassment that he helped bring about this tariff. The tariff was a perennial battle field and the divisions were often not purely regional. There was a fair amount of opposition usually to tariff increases in New England, and often a fair amount of support for tariff increases in the border states and Tennessee.

    At any rate South Carolina, rather than engage in the usual political wheeling and dealing that surrounded tariff battles, decided to begin a campaign touting nullification and the necessity of the South to unite and possibly secede. The problem for the South Carolinians is that their position had little support throughout most of the South. Oh, white Southerners generally hated the tariff, but they weren’t ready to start a war over it. Jackson of course threatened to lead an army against South Carolina and hang every nullifier he could get his hands on. In the face of this South Carolina repealed its nullification ordinance on March 11, 1833. This resolution was helped by the Compromise Tariff of 1833 which set forth a gradual reduction in tariffs to the rates of 1816.

    A tariff reduction had been passed in 1832. It helped take some of the steam out of the nullification movement, but was unacceptable to most of the South Carolina nullification radicals.

    Robert Barnwell Rhett spoke for most of the most radical nullifiers when he spoke after the repeal of the nullification ordinance:
    ” Every stride of this Government, over your rights, brings it nearer and nearer to your peculiar policy. …The whole world are in arms against your institutions … Let Gentlemen not be deceived.It is not the Tariff – not Internal Improvement – nor yet the Force bill, which constitutes the great evil against which we are contending. … These are but the forms in which the despotic nature of the government is evinced – but it is the despotism which constitutes the evil: and until this Government is made a limited Government … there is no liberty – no security for the South.”

    Rhett believed that slavery was not safe until a Southern Confederacy was established. Rhett helped bring about the Confederacy in 1860 and lived to see slavery destroyed as a result.

    Contrary to present day devotees of nullification, the nullification crisis was not responsible for the reduction of tariffs. Tariff increases and reductions were part of the political landscape both before and after the crisis. Just before the Civil War the tariff of 1857 set tariffs at the lowest rate for the century. If anything, the hullabaloo created by the nullification crisis probably delayed a reduction in tariffs by temporarily stopping the normal give and take of politics and leading the competing factions to dig in their heels.

  • Maybe going back to the Confederacy of nearly sovereign states isn’t such a bad idea. The alternative tends toward union aggression and tyranny and, while good on paper, hasn’t worked in reality. In less than a hundred years after the Revolutionary War, we had Lincoln and the North, backed by the big business of the day, waging war against the South in order to take their riches to pay for their big government.

    I say let there be sovereign and free states who are linked by free trade and a very, very loose central government responsible largely for organization and management during times of crisis, such as war.

  • Mr. Zummo-
    Would you please enlighten us as to what made Madison change his mind so drastically? That would go a long way in determing whether Madison’s change of heart was for reasons to serve himself or for legitimate objections he felt.
    I doubt highly that any proponents of nullification truly believe that it is some method by which a utopia could be created. And if anyone has then I would seriously take issue with it. I could talk about how that is impossible considering the human condition, but would not hold relevance in this discussion.

    Mr. McClarey-
    So because the Virginia and Kentucky Resolutions were nothing more than a means to a political end, they have no modern application? What about the Tenth Amendment? It seems highly questionable to maintain that we have recourse within a government that has failed, that we should depend upon a Supreme Court that has done much to inhibit liberty. Why would I want a branch of the Federal Government(the Judiciary)to be the final arbiter of the Constitutionality of any of my rights? When does protest and redress become futile? I can agree that we should work with in the system, but much like the health care law foisted on the American people, when does it become futile to carry on with a government that will not listen? This goes for Republican governance as well.
    If nullification is a viable solution because of it association with segregation, then neither is free speech, because segregationist made full use of their freedom of speech to stand behind their bully pulpit and rail about “segregation now, segregation tomorrow, segregation forever.” I think we can agree that though there may exist a rub, what is to keep us from expanding on the thoughts and ideas of those who influenced and even wrote our founding documents? Should we depend solely on the words of the Founders, no. But it certainly does hurt to use them as a starting point.

    As far as the Civil War is concerned, I suppose if the government went to war with the people over a cherished liberty and won, then the issue is settled and the cherished liberty is no more.

    If the fear of nullification is based on the fear of anarchy, then what of the Tenth Amendment? If we have no right to decide, through our state representatives that a law passed by the Federal government is not Constitutional, then why the Tenth Amendment? Is not this an evisceration of the Tenth Amendment, and the 9th as well.

    Mr. Zummo and McClarey,
    Interesting question would you gentlemen be willing to see the repeal of the amendment to the Constitution allowing for the direct election of senators, as means to bring the closer to their representatives not in Washington, but in their own state capitals?

  • If anything I would base my personal views on nullification on this.

    1. That the Constitution of the United States said quite clearly that the Federal Government is one of limited powers. That all other rights belong with the States, or the People. To me this clearly implies that there are rights that the people retain, but obviously those rights are not delineated because they are potentially many. If I take this to be true, which I do, it is no great leap to assume that the States(People) have the right to review laws emanating from the Federal Government, and if they so choose to choose to refrain from enforcing those laws which are judged to be in contravention of the Constitution.

    The argument here seems to be based on what James Madison, or Alexander Hamilton did or did not say, and how James Madison changed his mind years after the fact. Should we be ultimately considering the words of a man who changed his mind, or the document to which he worked to create? I would judge that much of what is being argued here is very conflicting, 1798 Madison, or 1835 Madison, so much so that we should consider not the mans words in certain periods, but the document he worked on, and to me it is no real stretch to consider the right of a sovereign state to judge those laws, especially those which might contravene their rights under the Constitution, and to refuse to enforce them, thereby making them NULL, VOID, and of NO EFFECT.

    JDB

  • THis article makes a decent attempt to be honest but it confuses nullification with seccession. One is the void of federal laws within a state while the other is the departure from the union of states to be its own country. The south tried that. It never once did nullification.

    “The pausibility of this objection will vanish the moment we advert to the essential difference between a mere non-compliance and a direct and active resistance. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only not to act, or to act evasively, and the measure is defeated. ”

    THis was made when the federal government completely relied on the states to enforce federal law. Not acting, as this implies is the proper course, is nullification since that law can’t be enforced in that state since the state is simply not enforcing it.

  • Quote Mr. Zummo: “Ah yes, let’s make stuff up in order to disregard all the stuff that contradicts what we believe. Who can contend with such scholarly arguments?”

    What evidence do you have that this is “made up”? If you like, I can find numerous examples of exactly what I asserted. If you would like me to post them here, I would be happy to. Just say so. It will likely take up a lot of space.

  • @theunknown:

    Actually, South Carolina did do that, during the so-called “Nullification Crisis”. They attempted to nullify a Federal tariff on trade that was too high. (There is evidence that the Northern-dominated Congress had done that on purpose in order to hurt the economy of South Carolina and other Southern states.)

    South Carolina decided that the tariff was excessive and therefore unconstitutional, and refused to enforce or obey it. The Feds sent in troops.

    Statists are fond of saying that South Carolina then backed down. But the fact of the matter is, despite the military threat, they held their ground until AFTER Congress changed the tariff to a more reasonable figure that South Carolina was willing to live with. So in fact it was the first unequivocal case of SUCCESSFUL state nullification of a federal law. There have been many since. Mr. Zummo is loathe to acknowledge them, but they exist nevertheless.

  • No, there was no successful nullification of any federal law. The actual history is as I cited earlier contrary to your fevered imagination. No federal troops were sent in. Congress passed a force bill but no federal troops were sent to South Carolina since the nullification ordinance was repealed by South Carolina after both the Force Bill and the Compromise Tariff of 1833 were passed on March 1. As I also indicated in my earlier comment in the years to come the tariff both went up and down uninfluenced by South Carolina’s first attempt to start a Civil War. As before the nullification crisis, the tariff remained a subject of conventional politics and would go up and down depending upon shifting political coalitions in Congress and election results. The nullification crisis was completely unnecessary, probably delayed a lowering of the tariff and brought South Carolina close to war for the sake of an idiotic stunt. This is truly a foolish example for modern day nullifiers to cite as a “success”.

  • @ Donald R. McClarey:

    Pardon me. You are correct in that troops were not sent in. I was confusing that situation with another. Nevertheless, South Carolina did make military preparations to defend its decision, anticipating that Federal troops would be sent in, and which no doubt would have been sent in had not the tariff been lowered. As you state yourself, a Force Bill was passed authorizing just such a measure, however the tariff was also lowered to a point that met South Carolina’s satisfaction, which made the point moot.

    These facts remain: South Carolina did vote to nullify the law, the Federal government did authorize military intervention, and South Carolina was prepared to go to war, before they ACTUALLY GOT WHAT THEY HAD DEMANDED.

    If you don’t call that success, I would like to know what your definition is.

  • @Jonathan D. Boatwright:

    I would say that your assessment is correct.

    Later in his life, some 30 or 35 years after his involvement in forming the Constitution, Madison did not just “change his mind”, but denied he had even said or written much of what he in fact did say and write, according to the clear public record. He also denied the occurrence of events that were also clearly in the public record. Whether he did this just because he was a stubborn, headstrong ass, or because he had lost his mental faculties, is a matter for debate. I am inclined to believe the latter, because of the way his later statements so directly contradict the records. I do not see how a fully sane person could make such denials of demonstrable truth and expect to be believed.

    And Hamilton, it should be noted, was an avowed Statist (to use the modern term), fully in favor of a strong central government that would have unchecked power over the states. Hamilton helped to back the Virginia Plan at the Constitutional Convention, which would have, among other things, given the Federal government the power to veto legislation by the states. It is of considerable interest that this idea was soundly rejected by the Convention, and also my the strong majority of those who later participated in writing the Federalist Papers, before the Constitution was ratified. It is easy to show that Hamilton’s voice, while clear, was only that of a small minority.

    The Founders were of the opinion (with the exception of Hamilton and perhaps a couple of others) that the Federal government was nothing but a compact between the States, which delegated a small set of their OWN sovereign powers to the Federal government, in order to better carry out the common interests of those States, and that all other powers would be retained by those States. Note the word that appears in the Constitution and repeatedly in many other historical documents: “delegate”. It is impossible to “delegate” authority that you do not yourself possess.

    Further, along the lines of your last statement: the Federal government was never intended to be the sole judge of its own powers. That includes the Supreme Court, which of course is part of the government. That would be “putting the foxes in charge of the henhouse”, as it were. I refuse to believe (and historical documents back me up) that our Founding Fathers were that stupid.

    I think you may find some of the following quotes to be of interest. Madison’s quotes here are from well before he “changed his mind”, as you put it. That is to say, they are from when he was actively involved in governing Virginia and helping to form the Constitution. The first one is from his Report of 1800, to the people of Virginia:

    “The resolution of the General Assembly [the Virginia Resolutions of 1798] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

    “However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

    The “parties” to the constitutional compact mentioned are, of course, the States. His meaning here is very clear: even the Supreme Court, while normally charged with deciding matters of constitutionality, was vulnerable to corruption and usurpation of powers. Therefore, the final arbiters of all were to be the States themselves, and The People.

    These other quotes are also relevant, in one way or another.

    “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” — James Wilson (Delegate to the Continental Congress and signer of the Declaration of Independence)

    “[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself.” — Thomas Jefferson, about the U.S. Constitution, in the Kentucky Resolution of 1798

    “With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison, letter to James Robertson, April 20, 1831

    “I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.” — Thomas Jefferson

    “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. … Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.” — James Madison, speech to Congress, 6 Feb. 1792 (Note the intentional sarcasm. But in fact today the Federal government has usurped the power to control some of those very things.)

    “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” — Thomas Jefferson

    “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” — James Madison

    “…the government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government.” — James Madison

    “A wise and frugal government… shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.” — Thomas Jefferson

    “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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” — James Madison

  • I apologize but I simply haven’t had the time, nor will have much time in coming days, to address all of the arguments that have been put forth. There is one particular thing I’d like to address because it does get down to the crux of this whole matter.

    And Hamilton, it should be noted, was an avowed Statist (to use the modern term), fully in favor of a strong central government that would have unchecked power over the states.

    This has been posited by both foes and admirers of Hamilton, but it is not correct. Hamilton, it is true, desired the creation of a stronger and more energetic government to displace the Articles of Confederation. So did almost all of the Framers, including Madison. And while it’s true that Hamilton was perhaps less fearful of an over-reaching government than the rest of the Federalists, he by no means countenanced a giant leviathan state that we have now. Hamilton wanted the government to be active in a few select areas, notably national defense and commerce. However, he correctly realized that a government active in all facets of life would be ineffective, and so he, like the rest of the Federalists, believed that the government’s powers should be few and defined. I would recommend reading Federalists 23-34 to get a sense of what Hamilton was about, and in particular, if you wish, reading my analyses of these papers at Almost Chosen People.. I’ve linked to all of the Hamilton essays that I’ve discussed thus far.

    On the other hand, it is my contention – and was the subject of my dissertation – that it is in fact the Jeffersonian philosophy that leads precisely to the sort of big government leviathan that exists today. Jefferson shares many beliefs, knowingly or unknowingly, with Jean-Jacques Rousseau. Rousseau is, in the end, to the left what Edmund Burke is to the right.

    It’s easy to advocate populist mechanisms to curtail the government when the populace is to be perceived to be on your side. Unfortunately what most right-wing populists miss is that much of what has transpired over the past century has been fully approved of and sanctioned by the populace at large. The sweet song of nullification is appealing until one realizes that it can be a dangerous weapon to tear down measures that one approves of.

    This is probably going to be my last word on the subject, at least for a few days.

  • Regarding the Supremacy Clause, I think that an argument that it prohibits nullification ignores these important words:

    “…under the Authority of the United States,”

    Nullification is a solution proposed when the legislature EXCEEDS “the Authority of the United States.” Both Jefferson and Madison agreed upon one thing: that the federal government was only given authority related to specifically enumerated powers. Therefore, the Supremacy Clause would only bind the states when the federal government was acting within this authority. The document assumes that this will always be the case. When the legislature exceeds this authority, no remedy is provided in the Constitution, and therefore the parties to the contract (the states) have a right to consider it a breach of contract and not be bound by it.

  • The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment, and not merely from the date of the decision so branding it… No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.
    — 16 Am Jur 2d, Sec 177 late 2d, Sec 256

    Is not that in essence a form of nullification? I means interpreted properly doesn’t this mean that a law that is unconstitutional is NULL, void, and essnetially of no effect? If that is the case, then in essence for a state legislature, or the people of a state to offer an “opinion” or statement of fact that the law is in essence of no effect, is not so wrong as present academics would like to think.

    In Mr. Woods defense, the ignorant thing is to denounce him on the basis of Madison and Hamilton. Madison renounced what he said earlier, and as far as Hamilton is concerned I cannot think of one country under a central government that has all the authority that has survived.

    JDB

  • Madison renounced what he said earlier,

    NO, he did not. A lie repeated often enough does not become truth. You Woods acolytes keep aping this line without providing a scintilla of evidence. It makes it difficult to take any of you seriously when you cannot back up your ahistoric notions with actual proof.

  • Deafening, Mr. Zummo.

  • I repeat, Mr. Zummo: I can access a number of instances of Madison doing precisely that. Would you like me to post them here? It would likely take up a lot of space. The only reason I haven’t so far is that I haven’t wanted to spend the time. But you are simply wrong on this point.

    For now I will present just one example. In the early 1830s, Madison wrote a series of letters that were circulated publicly. (From “James Madison: Philosopher, Founder, and Statesman” by John R. Vile, William D. Pederson, and Frank J. Williams) In those letters, he stated that the Virginia Resolutions, “properly understood”, did not call for state nullification. Subsequently John Calhoun (correctly) accused Madison of abandoning his earlier principles.

    However, even a brief examination of Madison’s own Report of 1800 (part of which I have quoted above), 2 years after the Virginia Resolutions, puts the lie to Madison’s later claims. In that document, not only does he make it perfectly clear in that document that he *WAS* referring to nullification (or “interposition”, if you want to be technical, which effectively amounts to the same thing).

    In that Report, in fact, he called for it once again, in the case of usurpation of power by the Supreme Court. And again, the plain language of that part is quoted in my earlier post, if you care to read it and you can understand plain English.

    Madison even tried to deny that the Kentucky Resolution called for nullification, and he continued in this insistence until someone confronted him with an actual copy, containing that exact word, at which point he backed down.

    If you don’t call that denial, then what do you call it? There are numerous other examples.

    Since we are on the Report of 1800, I will go back and support some of my other points with another quote from it. He is here referring at first to England:

    “Hence, too, all the ramparts for protecting the rights of the people–such as their Magna Charta, their Bill of Rights, &c.–are not reared against the Parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint, by licensers appointed by the King, is all the freedom that can be secured to it.

    In the United States the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power.”

    And he later mentions in that same document, again as quoted above, that the Supreme Court is also under strict limitations. It’s right there in black and white.

    Mr. Zummo, you seem yourself to be somewhat in denial of facts that contradict your thesis (as evidence, your post just above). I am no amateur in this matter. When I say I can produce historical documents, I can produce them. Count on it. Even though you seem to be ignoring those I have already quoted.

    Just to be clear, here is the plain language from the Virginia Resolutions that has been the topic of discussion here:

    “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 the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

    Note the word “interpose”. Madison is clearly stating that the states have both a right AND A DUTY to interpose themselves and prevent Federal usurpation of power. Thus the states MUST, logically, have the power and authority to do so.

    Madison later claimed that the state power he referred to was a collective one and not individual; this is in contrast to Jefferson’s Kentucky Resolution. However, he still clearly claimed such power FOR THE STATES.

    Again, there it is in black and white. Try denying that.

    Once again, to excerpt: “… as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact;”

    There are those words again: limited; compact; ENUMERATED. Do you honestly think that is coincidence? That “limited” and “enumerated” were just meaningless words that were tossed around every day?

    Your quote, Mr. Zummo: “This has been posited by both foes and admirers of Hamilton, but it is not correct.”

    Please, show me where in the history books it states that Mr. Hamilton was NOT a supporter of the Virginia Plan at the Constitutional Convention, or that the Virginia Plan did NOT call for veto power over state legislation. I will wait. I expect I will be waiting a very long time.

    Mr. Zummo, it appears that you have been reading history books that nobody else has seen. If they are genuine, perhaps you could assist the genuine scholarship of history by making them public.

  • The only reason I haven’t so far is that I haven’t wanted to spend the time. But you are simply wrong on this point.

    Yes, Lonny, you fellows are good at repeatedly asserting things without proof. I know researching things and citing them is hard, but really not that difficult.

    Please, show me where in the history books it states that Mr. Hamilton was NOT a supporter of the Virginia Plan at the Constitutional Convention, or that the Virginia Plan did NOT call for veto power over state legislation. I will wait. I expect I will be waiting a very long time.

    I never denied this. I simply stated that Hamilton was not a big government statist. That’s all.

    Mr. Zummo, it appears that you have been reading history books that nobody else has seen.

    Yes, it’s called reading the actual words of the people I am talking about. I know it’s easier to rely on third rate historians who are more interested in book sales than in making carefully crafted academic arguments based on scholarly evidence, but some of us prefer to use our own brains.

  • Paul, that Phd you earned in this area, and your doctoral dissertation on Jefferson, just can’t compete with these Internet acolytes of the TRUE AMERICAN HISTORY! :)

  • Sheesh, can’t we all just get along?

  • Mr. Lonny Eachus

    I think it would be best to leave Mr. Zummo and his colleagues to preen their ruffled feathers in the sun of their academic understanding.

    ———————————————————–
    And Mr. Zummo……….Mr. Woods’ book is not my only source of knowledge on nullification, nor am I at the pinnacle of understanding on said topic. I am endeavoring to find further information to bolster my understanding. So, please, unless you know me personally do not make assumptions that I am Thomas Woods disciple, or that I reposed the totality of my understanding to the leafs of his book. Your “academic” attitude seems smug and off putting.

    Furthermore, I think everyone engaging in this debate would like to know why you view Mr. Woods the way you do?

    JDB

  • Mr. McClarey,

    What is that supposed to mean, Sir? That because we all don’t fawn over Mr. Zummo’s protestations and his academic prowess we are some how less capable of understanding the topic being discussed?

    JDB

  • Thomas Woods and his acolytes made this thread about Thomas Woods. My post only made the barest allusion to his book – I made no comment about it at all pro or con. I’ve barely alluded to the man myself in subsequent comments. And if my tone is off-putting I apologize, but I tire of these conversations where only one side is putting up any real evidence or citing their sources. Merely asserting things repeatedly is not a form of argument. Those of Woods’ minions who have even attempted to quote the Founding Fathers have seemingly done so without any attempt to look at what was actually said to determine if it buttresses their arguments or not.

  • Mr. Zummo,

    For the record, I would say that my initial thoughts on the Nullification are based on my understanding of the Constitution, specifically the 10th Amendment.

    As far as I can tell, interpose, nullify, one way or the other is a means of a state to stand against a federal law that is clearly of no affect because it does not fall in to the realm of enumerated powers granted the government. Either way the State(s) refuse to enforce the law.

    If I take to hear the statement of “American Jurisprudence” then a law is a null the moment it becomes a law. And that the instruments by which a state may express are purely incidental to the fact of a law being unlawful and not being enforced by State governments on behalf of the people. If your argument is that the Supremacy clause disallows this, then please explain to me the relevance of the enumerated, because it seems to me that the laws emanating from the Fed. Gov. are only valid if they are in accordance with enumerated powers.

    JDB

  • For the record, I completely disagree with the knocks on Paul Zummo concerning Mr. Thomas Woods.

    This is about nullification, not about Thomas Woods.

    Let’s put aside my love of reading Thomas Woods books, those that are trying to make an issue between Paul Zummo and Thomas Woods are off-base.

    I can be a bit more explicit, but if we are all Catholics that strive to live the love that Jesus wants for each other, then these aversions to an imaginary issue between Paul & Thomas must stop now.

    I 100% completely back Paul in monitoring the comments on this thread and his discretion on what is approved and not approved. By the guidelines that we have put out for TAC authors, and backed by all TAC authors, cease and desist from making this about something this isn’t.

    In Jesus, Mary, & Joseph,

    Tito Edwards
    Chief Editor
    The American Catholic

  • Mr. Edwards,

    First off, I might be the only non-Catholic posting here, I am an Independent Baptist.

    Secondly, it is Mr. Zummo who has taken to calling those defending their personal belief in nullification “thomas woods acolytes” and “minions.” Granted he may not have engaged in this debate to talk about Tom Woods, but he certainly has done his part to keep it going.

    JDB

  • Jonathan,

    Point taken.

    And please stay here and continue to engage Paul Zummo and the rest of everyone else in this constructive and productive debate.

    In Jesus, Mary, Joseph,

    Tito

  • Mr. Edwards,

    I certainly will try to.

    JDB

  • Are all your readers here willing to read all of this?
    This really is great for those who are compiling their dissertation, but what percentage of people trying to understand this Government has the time to read or the knowledge to understand what you post here?
    I really want to know how we as citizens can stop the tyrannical advancements of our federal government.
    Would you like to help me and most other average citizens, or is your mission to throw dirt on those efficient orators that disagree with socialism?

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