Nullification: How to Resist Federal Tyranny in the 21st Century

by Thomas E. Woods

  Joseph Story set forth the nationalist reading of American history, in which “one people” began to coalesce during colonial times, as follows:

  Although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow-subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony; and as a British subject, he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British Empire, and could not be restrained or obstructed by colonial legislation.3

  Likewise, John Jay, the first Chief Justice of the United States, argued that “all the people of this country were then subjects of the King of Great Britain, and owed allegiance to him, and all the civil authority then existing or exercised here flowed from the head of the British Empire. They were in [a] strict sense fellow subjects, and in a variety of respects one people.”4

  But do these facts really prove what their advocates tell us they do? For instance, if the people of the various American colonies were “one people” because they had all been subject to the same sovereign during their history within the British Empire, that would have made them “one people” with Jamaica and Canada as well. The facts cited by Story and Jay, according to Upshur, do indeed “prove a unity between all the colonies and the mother country, and show that these, taken together, are, in the strictest sense of the terms, ‘one people’ but I [Upshur] am at a loss to perceive how they prove that two or more parts or subdivisions of the same empire necessarily constitute ‘one people.’”5 Upshur concluded: “If a common allegiance to a common sovereign, and a common subordination to his jurisdiction, are sufficient to make the people of different countries ‘one people,’ it is not perceived (with all deference to Mr. Chief Justice Jay) why the people of Gaul, Britain and Spain might not have been ‘one people’ while Roman provinces.”6

  Each of the colonies did owe allegiance to the British king, it is true, but this was not a common allegiance of a single people to a common head. It was an individual allegiance held separately by each colonial government.7 The colonies were not amalgamated simply because each of them separately owed allegiance to the same sovereign.

  When Andrew Jackson composed his proclamation during his 1832–1833 confrontation with South Carolina over nullification, he too advanced the weak “one people” argument with reference to the American colonies. “In our colonial state,” he wrote, “although dependent on another power, we very early considered ourselves connected by common interest with each other.”8 Littleton Waller Tazewell, in turn, whose career included service in the U.S. House, the U.S. Senate, and as governor of Virginia, composed a series of articles that amounted to a point-by-point refutation of Jackson’s proclamation. He said of Jackson’s “one people” argument:

  A more flimsy pretext, from which to infer the existence of a single community, could not easily have been selected…. Mark, no social connection of any sort, is affirmed to have actually existed; it is merely said, that we very early considered ourselves as connected. And by what was this imaginary connection constituted? Were we inhabitants of a common territory, the vacant and unoccupied parts of which were admitted to belong to all? No. Did we profess the same religious faith? No. Did there exist any one institution, which having been created or preserved by all, was therefore common to all? No. By what tie then did this People consider themselves to be connected, in their colonial state? Why, by the single tie of a supposed common interest. No man before President Jackson, ever thought of inferring the existence of a community from such a fact, which if believed to be sufficient to produce the effect, would consolidate, probably, one-half of the People of the whole world into one community, and by so doing, would dissolve more than the half of all the societies now existing, whose members do not even consider themselves connected by any such tie.9

  The colonists’ common experiences as British subjects cannot render them one people, particularly when we recall, with Upshur:

  The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever.10

  There was likewise no official capacity in which the colonies could act politically as one people. When intercolonial confederations were proposed during the colonial period, the colonists either resisted them entirely (as when they fought off the royally imposed Dominion of New England in the 1680s or refused to accede to Benjamin Franklin’s Albany Plan of Union in 1754), or consented only after insisting on maintaining a veto power on what the confederation might do (as when Massachusetts insisted on a veto less than a decade after the defensive Confederation of New England was established in 1643).11

  Furthermore, Upshur wonders, if the thirteen states really had constituted “one people,” what would have been the status of states that chose not to ratify the Constitution? Could the others have coerced them into the Union, or treated them as if they were already part of it—as the nationalist, “one people” theory seems to demand? As it turned out, Rhode Island did not ratify until 1790—two years after the document had gone into effect over other states. During that time it never occurred to anyone that the U.S. government, by virtue of all the states having become “one people,” had any political power over that recalcitrant state. In Federalist #43, in fact, James Madison had noted that if some states refused to ratify, then “no political relations can subsist between the assenting and dissenting states.”

  Alexis de Tocqueville, the best-known foreign observer of the United States in the nineteenth century, in concluding that the compact theory was the correct one, dismissed the claim that the people of the states ever constituted “one people” in any politically relevant sense. The Union, he wrote in Democracy in America, was “formed by the voluntary agreement of the states; and these, in uniting together, have not forfeited their nationality, nor have they been reduced to the condition of one and the same people.”12 The great British libertarian (or “classical liberal”) Richard Cobden, in turn, adopted Tocqueville’s view, citing him as “our highest European authority.”13

  The people of the colonies were, therefore, separate and distinct. As Upshur put it, they were “separate and distinct in their creation; separate and distinct in the forms of their governments; separate and distinct in the changes and modifications of their governments, which were made from time to time; separate and distinct in political functions, political rights, and in political duties.”14

  In September 1774, the First Continental Congress convened, months after the British imposed the hated Coercive Acts on the colonies. Did this alleged government in fact represent the maturation of a single American people? Joseph Story thought so: the existence and operation of the Continental Congress, he contended, demonstrated that “the united colonies must be considered as being a nation de facto.”15 The Continental Congress, to Story, represented a general, national government that was organized with the consent of the sovereign people taken in the aggregate. Yet the acts of the Continental Congress appeared in the form of resolutions rather than as laws or commands. The Congress had no more powers than those for which it could win the various colonies’ consent. It could offer counsel, but it could require nothing. It did not reflect a governing structure that derived from authority bestowed by “one people,” or could be conceived of as a general or national government. The colonies remained just as distinct as before.16

  The Second Continental Congress convened in May 1775 in the wake of the
Battles of Lexington and Concord, and then remained in session throughout what became the War for Independence. This, too, was organized as an institution to co-ordinate the joint action of sovereigns, not as a national government representing a consolidated American people. No matter how great its population or how many delegates it sent, each colony had one vote in this congress. A national government, which absorbed the people of the states into a single people, would not have been organized that way. There was nothing in the powers exercised by this congress from 1775 through 1781 that was inconsistent with the retention by the states of their sovereignty and independence. Even if for certain limited purposes they may have wished to collaborate, they did so not at the command of a single, unified sovereign, but as dictated by their own good judgment as individual political entities.

  Even the power to wage war, which is universally regarded as one of the chief attributes of sovereignty, was not held exclusively by the Continental Congress. Before the Declaration of Independence, Massachusetts, Connecticut, and South Carolina fitted out vessels to cruise against the British, the troops of Connecticut took Ticonderoga, and New Hampshire authorized its executive to issue letters of marque and reprisal.17 When, in June 1776, the Congress took up the task of drafting laws pertaining to treason, it was declared that the crime would be considered as directed against the colonies individually rather than as confederated together—not something they would have done had they imagined themselves to be operating under a national government that a single sovereign people had endowed with authority.18

  The Declaration of Independence itself made clear how the original thirteen colonies, which became states when they declared independence from Britain, thought of themselves. Today, common usage has led most Americans to think of the word “state” as referring to a subordinate political entity within a larger union, as in the centralized United States of the present time. But when the states used the word “state” in the Declaration, they meant it in the same way that Spain and Italy are states—sovereign, independent political units. In the Declaration, the states referred to themselves in the plural, and not as constituting a single entity. Thus: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States” (emphasis added). When the term “united States of America” was used, the word “united” was not capitalized, as if they were bestowing a name upon a united federation of states. To the contrary, these were the states of America, united in their determination to break their respective political bonds with Britain but not united in the sense of having somehow dissolved their various sovereignties into one.

  The Declaration declares the independence of thirteen sovereign states, each of which may exercise all those powers traditionally associated with sovereignty (as my particular emphasis below indicates):

  We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

  Likewise, the treaty of alliance between the United States and France on February 6, 1778, acknowledges an agreement between “the most Christian King and the United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.” The same formula is used in a treaty of amity and commerce with the Netherlands in October 1782, reached “between their High Mightinesses, the States General of the United Netherlands, and the United-States of America, to wit, New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia.” A similar treaty with Sweden the following year was ratified between “the King of Sweden, of the Goths and Vandals, &c. &c. &c. and the Thirteen United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, the counties of Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.”

  When in formal diplomatic statements of this kind the term “united States of America” (with the “u” either capitalized or not, depending on the document) is used, it is understood as an interchangeable way of referring to all thirteen states separately, as in the above treaty with Sweden. And of course, when the states won their independence from Britain, the resulting Treaty of Paris (1783) declared: “His Britannic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states.”

  On top of that, the people of the states sure believed they were sovereign: the Articles of Confederation, which gave legal sanction to the then-existing Congress, proclaimed in 1781 that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” There it is, as clear as anyone could ask for: each state retains its sovereignty, freedom, and independence. The states would have had to be sovereign in the first place in order for them to retain that sovereignty in 1781. Thus their status as separate and distinct sovereign states is officially acknowledged in the 1780s, meaning that any collapsing of the distinct peoples of the states into “one people” could not have occurred prior to that date.

  But no action so collapsing them occurred after that date, either. Nor could it, for sovereignty is neither partible nor alienable. The great international lawyer Emmerich de Vattel observed in The Law of Nations (1758) that “several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements.”19 This was the view that Virginia jurist St. George Tucker set forth in his influential 1803 edition of Blackstone, when he explained that the states retained the legal and constitutional right to resume those sovereign powers that they merely “suspended” during such time as they continued to “delegate” them to the United States under the Constitution.20 Thomas Jefferson said in effect the same thing: “The Constitution of the United States is a compact of independent nations subject to the rules acknowledged in similar cases.”21

  Returning for a moment to the Articles of Confederation, one objection to our position might be that the full name of that document, the Articles of Confederation and Perpetual Union, indicates some type of permanent surrender of sovereignty (if such a thing were possible) into a permanent union. If the states belong to a perpetual union, the argument goes, they must no longer be sovereign, for a sovereign would necessarily retain the right to choose to withdraw from any federation it had joined. Unfortunately for the poor souls advancing this claim, their ignorance of what the word “perpetual” meant in the context of eighteenth-century diplomacy has led them down a dead end. For an agreement to be “perpetual” meant only that it had no built-in sunset provision.22 Hence numerous long-forgotten eighteenth-century treaties claimed to be “perpetual” if our critics were correct about the mean
ing of that word, these agreements would still be in effect today. We might also note that even if “perpetual” had meant permanent, which it did not, this alleged permanence evidently did not stop the people of the states from discarding it and establishing a new one when they abandoned the Articles and adopted the Constitution.

  What of the fact that the Constitution itself begins with the words “We, the People” rather than “We, the States”? Does this not prove that the United States was founded by a single, aggregated American people rather than by the people as citizens of the various states? As it turns out, the original text of the Constitution indeed began “We, the States.” The change to “We, the People,” was made by the Committee on Style. The reason was that it was impossible to know in advance which states would choose to ratify the Constitution and which would not. Thus, anything in the form “We, the People of the States of…” or “We, the States of…” would have been purely conjectural, and perhaps even insulting to state populations that would have been suspicious enough of the new Constitution without its Preamble seeming to take their approval for granted.23 The reader may judge for himself the likelihood that the Committee on Style would have been permitted to make a substantive change to the Constitution’s text, or that a change dramatically altering the nature of the Union would have been accepted without debate, as this one was.

  If the states are the fundamental building blocks of the United States, and they maintain their sovereignty and their rights of self-government, one can at least understand how the conclusion follows that the states have the right to protect themselves against abuse by means of nullification. A nullifying state is exercising its prerogative as the agent of its sovereign people to defend them against an unconstitutional law. For the nationalists, on the other hand, nullification is simple insubordination. They would not view it as the sovereign people of a state protecting itself from encroachment on the part of an overweening federal government. They cannot see in it anything other than an insurrection involving an arbitrary group of individuals.