Nullification: How to Resist Federal Tyranny in the 21st Century
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To my mind, Jefferson’s compact theory, and the long tradition of thinkers who supported and amplified it, are immediately persuasive to anyone approaching the subject without prejudice. And it is in light of their exegesis of the American experience that the tradition of nullification makes the most sense and can be most readily defended. As we noted at the beginning of this chapter, few Americans have ever been exposed to it. No law student learns about it. Almost no undergraduates encounter it at any length, since their professors tend to be unfamiliar with the relevant texts. But if we are to make sense of American history, the Constitution, and the options before us as we confront Jefferson’s nightmare—namely, a government that acknowledges no fixed limits to its power—we have an obligation to understand it.
CHAPTER 5
Nullification Today
WHY DO WE UNTHINKINGLY ASSUME that political monopolies are a good thing, even though we are rightly suspicious of all other sorts of monopoly? Why are ideas like Jefferson’s principle of nullification so difficult for many of us to accept? The answer, I am convinced, lies in the widespread and deeply held preconceptions we have absorbed from our earliest years in school. We have been taught to believe that the best—indeed the only—way to organize society is for an infallible and irresistible central authority to issue commands to lesser, subordinate bodies. These subordinate bodies, in turn, exist at the pleasure of the central authority. They enjoy no independent existences of their own. Any liberties they enjoy may be invaded or cancelled at any time.
As Western liberty was being born over the course of the second millennium, a different model of society was followed. After the Roman Empire disintegrated, no continent-wide empire took its place. “Instead of experiencing the hegemony of a universal empire,” writes historian Ralph Raico, “Europe evolved into a mosaic of kingdoms, principalities, city-states, ecclesiastical domains, and other entities.”1 It was the decentralized nature of European political life, the lack of a single, supreme political authority, that contributed to the development of liberty.2 Princes risked losing population (and their tax base) if they engaged in excessive taxation or interference in their peoples’ economic lives. People could simply move to another, less oppressive jurisdiction, which was never too far away.
Should you ever be interested in a graduate course in political philosophy, minus the tuition costs, you should overlook the soporific title and read Robert Nisbet’s classic The Quest for Community. In that book, a Columbia University sociologist argues that “the single most decisive influence upon Western social organization has been the rise and development of the centralized territorial state.” He sets out to examine “the conflict between the central power of the political State and the whole set of functions and authorities contained in church, family, gild, and local community.”3 Instead of a variety of power centers offsetting and competing with each other, a single, irresistible central authority became the central organizing principle of Western political life. The traditional liberties and functions of these lesser associations were absorbed or cancelled by this central power. One of the book’s chapters is titled, appropriately enough, “The State as Revolution.”
In the early seventeenth century, Johannes Althusius theorized about the political order that preceded the rise of the modern centralized state in his book Politica Methodice Digesta, Atque Exemplis Sacris et Profanis Illustrata, or simply Politica. Althusius began not with individuals but with the family, which he took to be the fundamental political unit. Groups of families, he explained, may organize to form villages. Groups of villages and towns may organize to form provinces, which in turn may group together to form a kingdom or state. An empire is composed of these various states along with free cities (which are directly answerable to the emperor). To the extent that Althusius believed in or employed the concept of sovereignty, he seemed to imagine it residing in the symbiotic relation of all these lesser groups as they unite for a common purpose. The individual or group exercising political power at the highest level—whether a monarch or something else—merely reflects this concord.
Whatever the ultimate locus of sovereignty, Althusius was quite clear about where it did not reside: in the ruling individual or group who happens to occupy the seat of power in a central government. The society Althusius envisioned was far too rich and variegated for a single power center to dominate all others. Althusius, in short, was describing what we might call a federative polity. It is a society in which power is shared by various social authorities, not held monopolistically by a central government. These social authorities have rights and liberties of their own, which preceded the central authority and cannot be arbitrarily interfered with or cancelled by it.
Against the federative polity is the model with which most of us are more familiar—what we might call the modern state.4 The modern state, about which Thomas Hobbes theorized in the seventeenth century, envisions society not as composed of a diverse array of social authorities but as consisting of nothing other than an undifferentiated aggregate of isolated individuals. These individuals, in turn, endow a central government with the power to rule over them. No other social authority precedes this central government, and thus no competing power centers in society have the power or political wherewithal to resist the great Leviathan.5 It is the very opposite of a federative polity, for its starting point is a mere aggregate of individuals, and its ending point is a sovereign who is logically and temporally greater than all other groups in society.
No doubt there is a certain macabre logic to the organization of the modern state. It seems rational and efficient. That is because we have never been introduced to any other way of arranging society. As I have written elsewhere:
In a federative polity, when another social authority blocked the authority of the central government—medieval towns, for example, won many of their liberties by confronting the king and making demands of him, particularly when he needed their aid during war—it was a normal event, even a virtue. But the modern state trains its citizens to think otherwise. When another institution attempts to resist the encroachments of the central government of a modern state, it is guilty of treason. What was once a virtue now becomes the gravest possible crime. The nation, citizens are taught to believe, is “one and indivisible.” This new morality inclines the people to view the central government’s suppression of lesser bodies as something natural and normal, and resistance by those bodies as reprehensible and unpatriotic…. No longer restrained by these smaller authorities and their potential for resistance, the central governments of modern states became capable of all manner of atrocities, of which the twentieth century afforded one gruesome example after another.6
Those who oppose the centralized structure of the modern state are typically accused of harboring sinister intentions—but in light of the modern state’s track record, including the unprecedented barbarism of its wars, its totalitarian revolutions, and its genocides, the moral presumption should be the other way around.
Indeed, the predatory modern state against which Althusius theorized corrupts everything it touches. Its centralization of power was directly responsible for the atrocities, domestic and international, of the twentieth century. Federative polities had by no means been free of outrages and enormities, but the age of genocide had to await the rise of the modern state. The suppression of lesser social authorities meant that the central government faced fewer and fewer obstacles as it expanded its power. This process of centralization was excused by the Left on the grounds that only a strong central authority could liberate individuals from the oppressions, all too real, of lesser social authorities. It was welcomed by some on the Right who saw a convenient mechanism for overriding moral decisions it disapproved of on the part of local communities.
Both sides got more than they bargained for. This Frankenstein monster, it turns out, creates more oppressions than it liberates us from, and consistently distorts or undermines moral virtues, from filial piety and thrift to personal respo
nsibility and hard work. In the American case, its extravagance and irresponsibility have brought the country to the brink of economic catastrophe.7
I am suggesting that we do what has so often become the first principle of sound thinking: turn the conventional wisdom on its head. We have been taught to believe in the modern state; in political centralization. Nearly all modern political philosophers defend some form of it. Instead, we should give the moral benefit of the doubt to movements for political decentralization in the United States and around the world, which challenge the absorption of all power by an irresistible central authority. There has been no more destructive force in the history of the world than the modern state. There is nothing sinister about thinking in different ways. To the contrary, it is probably the most intellectually and politically liberating thing we can do.
That this is a morally and philosophically serious position should be obvious. But try advancing it in modern America, where generations of students are never given the opportunity to consider it. They are instead imbued with the principles of the modern state, their great and glorious protector. Because they accept these premises so unthinkingly, and are usually not even aware of their own assumptions, it becomes impossible for them to respond to alternatives other than with a string of clichés in defense of the status quo. You would have better luck debating a zombie.
Unexamined premises and assumptions can lead us thoughtlessly down paths we would not choose if we studied important questions thoroughly and systematically. A lot of people were taken in by the American politician who promised that he and his party
would totally eliminate states’ rights altogether: Since for us the state as such is only a form, but the essential is its content, the nation, the people, it is clear that everything else must be subordinated to its sovereign interests. In particular we cannot grant to any individual state within the nation and the state representing it state sovereignty and sovereignty in point of political power.
Whoops—that wasn’t an American politician. My mistake. That was Adolf Hitler in Mein Kampf. The future dictator went on in that book to promise that the “mischief of individual federated states…must cease and will some day cease…. National Socialism as a matter of principle must lay claim to the right to force its principles on the whole German nation without consideration of previous federated state boundaries.”8 No nullification for him.
Now the question remains: can the honorable if moribund tradition of state resistance to unconstitutional federal power be resuscitated, or are Americans too deeply in thrall to the myth that unlimited submission to federal authority is the only course available to them, and is what makes them good and loyal Americans?
At the time of this book’s publication, the passage of a health-care reform bill despite deeply rooted popular opposition has ignited popular interest in the possibilities offered by nullification. The legislatures of several states were already voting to nullify that law even before it was passed. As we have seen, this was not the first time a state let the federal government know in advance that proposed legislation would be nullified; Connecticut did the same thing with the conscription bill in 1814. These state proposals take different forms—some would be simple acts of legislation, while others would be amendments to state constitutions. But the principle is the same: to protect the people of a state from federal penalties they might suffer if they do not purchase an insurance package that makes them compliant with a federal health-care law. In Missouri, thirty legislators joined the lieutenant governor at a rally in January 2010 endorsing an amendment to the state constitution that would nullify any attempt by the federal government to force residents of that state to purchase health insurance. In Virginia, the state House and Senate voted overwhelmingly for legislation, later signed by the governor, that declared, “No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage.”9 By the time of this printing, health-care nullification had been enacted into law in three states, had passed at least one house of the legislature in six others, and was pending in seventeen more. With the Internal Revenue Service unclear about whether it will directly punish those who do not wish to purchase more health insurance than they think they need, the possibility of large-scale civil disobedience remains an open question.
Not surprisingly, we often discover in the language of these measures the themes of the Principles of ’98. Thus, in February 2010, the Idaho House passed House Bill 391, which makes express reference to the state’s reserved powers under the Tenth Amendment:
The power to require or regulate a person’s choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment. The state of Idaho hereby exercises its sovereign power to declare the public policy of the state of Idaho regarding the right of all persons residing in the state of Idaho in choosing the mode of securing health care services free from the imposition of penalties, or the threat thereof, by the federal government of the United States of America relating thereto.10
If these provisions are to be more than rhetoric, the states enacting them will have to stand ready to defend their people if and when the federal government tries to exact punishment on those peaceful individuals who choose not to comply with its coercive edict. This defense will need to take various forms. Houston attorney Jeff Matthews proposes several:
(1) No court of this state shall relinquish jurisdiction over any citizen of this state on the subject matter of federal health care legislation to any federal court in this state.
(2) No judge in this state shall issue orders to levy or execute on the property of any citizen of this state to collect any amounts assessed against the citizen for failure to comply with any provision of federal health care legislation. Any person who violates this provision shall be subject to any disciplinary sanction available by the state bar, including suspension and/or disbarment.
(3) Any federal judge in this state shall be subject to sua sponte and citizen-initiated grievance procedures before the state bar for exercising jurisdiction over any citizen of this state in cases involving federal health care legislation. Any person who violates this provision may be subject to any disciplinary sanction available by the state bar, including suspension and/or disbarment.
(4) No federal or state officer in this state shall levy or execute on the property of any citizen of this state to collect any amounts assessed against the citizen for failure to comply with any provision of federal health care legislation….
(5) No bank, credit union, trustee, investment broker or other depository in this state shall be authorized to pay over to any federal authority any sums claimed due under any writ of garnishment, if such writ is for purposes of collecting any amounts assessed against a citizen of this state for failure to comply with any provision of federal health care legislation….11
Opponents of the new health insurance mandate are also pursuing a more traditional legal option, with thirteen state attorneys general filing suit in opposition to various aspects of the law. This is a form of state interposition as well, even if not as radical as open defiance.
As we noted in chapter 1, numerous other federal laws in addition to the health insurance mandate are being examined for constitutionality by states prepared to employ Jefferson’s remedy. There are far more state nullification initiatives, pending or already passed, than we can discuss here. To keep abreast of them, consult the Legislative Tracking page at TenthAmendmentCenter.com, far and away the best and most thorough website for following the spread of nullification and other localist initiatives. I post regularly about this subject at my o
wn site, TomWoods.com.
Would each episode of nullification have to be resolved in some way? In other words, would the states have to amend the Constitution, either expressly granting the federal government the disputed power or expressly withholding it, every time a state nullified a federal law? Most of the time this seems unnecessary. The country is surviving just fine in the midst of ongoing state defiance on medical marijuana and other issues. If we wound up with a Union in which some states were in fact different from others, it would not be a catastrophe to be deplored. That would be the United States as the Founders envisioned it.
Now it will be objected that nullification can’t work because the federal government has the states right where it wants them: if push comes to shove, no one will want to antagonize the politicians in Washington for fear of losing “federal funding.” That is a serious obstacle, to be sure. Of course, the problem would be mitigated to some extent if the states were to nullify unfunded federal mandates, thereby saving money. The more states engage in nullification, moreover, the more difficult it will be for politicians in Washington to get away with penalizing them all.