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

by Thomas E. Woods

  This is the essential point: if the people of the states are determined not to obey a law they consider unconstitutional, that law simply will not be enforced. The federal government can rant and rave all it likes. It won’t matter. Recall again the case of Joshua Glover. The people of Wisconsin refused to support the federal government’s campaign against Glover and Sherman Booth. Historian H. Robert Baker, author of The Rescue of Joshua Glover (2006), describes the situation:

  The rescue of Joshua Glover had, by 1860, become a national event. Wisconsin’s steadfast resistance had morphed from a fugitive slave rescue to the interposition of the state with such intensity that all federal officers—from a deputy marshal to the chief justice of the U.S. Supreme Court—had been stung by the defiance. Most off-putting to them was its success. Despite immense pressure, the stand against the Fugitive Slave Act survived again and again at the polls.12

  Thus we see how difficult it is for the federal government to enforce a constitutionally dubious law when the people are determined to resist.

  If the Constitution could be safely amended to incorporate something of the spirit of ’98, that would make the states’ task easier. For one thing, we would not need to engage in a lengthy historical and constitutional disquisition to persuade skeptics every time we wished to employ it. Amending the Constitution, which I myself would have dismissed out of hand only a few years ago, will be met with resistance. Why, there’s nothing wrong with the Constitution as it is, some will say—we just need to enforce the document as written. For one thing, that just isn’t working. And this objection misfires on two additional counts. First, it can indeed be useful simply to clarify what is already implicit. As we have seen, the Tenth Amendment itself, which Jefferson described as the cornerstone of the Constitution, was only codifying what the states had been assured was already implicit in the Constitution as drafted. Clarifying the reserved powers of the states, or the correct, pre-1937 interpretation of the commerce clause, would be a waste of time only if the Tenth Amendment was a waste of time.

  Second, there is something wrong with the Constitution as it exists today: the Seventeenth Amendment, to name just one such problem. The direct election of U.S. senators, instituted by the Seventeenth Amendment, is routinely described as a glorious and progressive advance over the backward, stupid system of the Framers, whereby U.S. senators were to be chosen by the state legislatures. In fact, that amendment has played a central role in advancing the centralization of power in Washington, D.C. I do not recall, in my own high school social-studies class, being encouraged to consider why the Framers decided to elect senators this way, and why they deliberately chose not to elect them as we do today. Today, senators get elected by holding fundraisers in major U.S. cities and collecting donations from all over the country. This does not exactly make them beholden to their states. To the contrary, it makes them beholden to their donors. As the Framers envisioned it, the state legislatures’ power to choose U.S. senators would limit the extent to which the latter could be bought off, and maximize the influence that the states would exercise over them. Thus Fisher Ames of Massachusetts referred to U.S. senators as “ambassadors of the states.” It was taken for granted that the state legislatures would instruct their senators, and thereby keep them on relatively short leashes.13

  As a result, writes Professor Todd Zywicki of George Mason University Law School, the Senate once “played an active role in preserving the sovereignty and independent sphere of action of state governments…. Rather than delegating law making authority to Washington, state legislators insisted on keeping authority close to home…. As a result, the long-term size of the federal government remained fairly stable and relatively small during the pre-Seventeenth-Amendment era.”14

  The chances that we might have a rational debate over the Seventeenth Amendment are essentially zero. Any discussion that did take place would occur at a strictly third-grade level, with supporters of the present system breathlessly posing as champions of “democracy” in the face of heretics and Neanderthals. But with the destruction of the Senate as the representative forum of the states, we do need the reintroduction of some form of state negative on the federal government. If nullification itself, which (like the Tenth Amendment) Jefferson took to be unavoidably implicit in the very nature of the Constitution, cannot be expressly enshrined in the Constitution, we might consider a second-best alternative whereby, say, a vote of two-thirds of the states could overturn a federal law. We need an institutional structure in which another force within the United States may say no after the federal government has said yes. Anyone who doesn’t think the federal government has been saying yes to itself a teensy bit too much might consider, just for starters, the $100 trillion in unfunded liabilities for which our wise leaders, who continue to hand out “free” benefits as if nothing is wrong, have made absolutely no provision.15

  The Constitution includes two mechanisms for the ratification of amendments: either Congress introduces the amendment and three-fourths of the states ratify it, or the states themselves convene in a convention for the purpose of amending the Constitution, with three-fourths of them having to vote to ratify any amendments proposed there. The far preferable way to introduce the kind of amendment I propose, because potentially less circus-like, is the former, in which Congress introduces the amendment and sends it out to the states for ratification.16 Now since Congress is itself the problem, it is unlikely to be the solution. Unless, that is, it gets spooked at the prospect of the states acting on their own, and thus preemptively introduces the amendment in question in order to head off such a possibility.

  In the meantime, if the states really want to be serious, and their people are educated enough in their real history to back them up, they might consider establishing federal tax escrow accounts. Proposed so far in Oklahoma, Georgia, and Washington state, legislation establishing such accounts seeks to neutralize the federal government’s ability to threaten and intimidate the states. All federal taxes would first go to the state’s department of revenue. From there, legislators would consider the constitutionality of various aspects of the federal government’s budget and then contribute from the escrow account an appropriate amount. Any leftover monies would either be returned to the people or spent on projects currently funded by federal grants. Yes, this would be a very different way of doing things. That’s precisely the point. The current way of doing things has made a joke of the Constitution, to say nothing of pushing the country toward bankruptcy.

  Another way nullification might be pursued is by means of jury nullification, which holds that juries must judge not just the facts of a case but also the law itself. Although few people realize it, the consensus among the Founding Fathers was that jury nullification was an essential defense mechanism for a free people.17 This, then, becomes an additional means by which the people’s determination not to enforce an unconstitutional law may be effected. Theophilus Parsons, who supported the Constitution in Massachusetts’ ratification convention in 1788, and who turned down John Adams’ offer to serve as U.S. attorney general in order to become Chief Justice of Massachusetts, took precisely this position. He wrote: “An Act of usurpation is not obligatory—it is not law. Any man may be justified in his resistance to it. Let him be considered as a criminal by the General Government—yet his own fellow citizens alone can convict him. They are his jury—and if they pronounce him innocent, not all the powers of congress can hurt him—and innocent they certainly will pronounce him, if the supposed law which he resisted was an act of usurpation.”18

  Nothing is more certain than the demonization of this worthy cause and those who support it. Even though they are following in the footsteps of eminent Americans, they will be portrayed as cranks with sinister motives. Note that our wise public servants are not portrayed as having sinister motives. From time to time they may make “mistakes,” but their intentions are good and they seek only to serve us. Those who resist them, on the other hand, are wicked and perverse.
They must be crushed. They must be smeared and made into objects of hatred. Government is supposed to grow, our wise public servants and their favored constituencies are supposed to enrich themselves, and the rest of us are supposed to sit back and take it. The natural right of Ivy Leaguers to try out their theories on the American public shall not be infringed.

  Demonization of those who favor nullification has already begun to occur at the state level. When, in late 2009, State Representative Susan Lynn introduced a nullification resolution into the Tennessee legislature in anticipation of the federal government’s health care legislation, she was met by the usual hysteria with which the political establishment greets deviations from the narrow range of allowable opinion. According to the Nashville City Paper, “Rep. Mike Turner, chairman of the House Democrats’ political caucus, said Tuesday Rep. Susan Lynn’s comments harkened back to Civil War-era arguments.” Representative Turner himself went on to unbosom his own thoughts: “Susan Lynn is yearning for times gone by. Maybe we could put the poor people back to sharecropping and slavery and let the people up at the big house have all the nice things. We’ve already had that fight about states’ rights.”19

  That’s one seriously convoluted remark, but the best I can make out, Turner is saying something like this: since Susan Lynn questions the federal government’s constitutional authority on health care, she is an enemy of the people who is living in the past. If we listen to her, we may as well bring back slavery!

  Listen again to Turner’s non sequitur: “We’ve already had that fight about states’ rights.” In other words, we’ve already established that the experts who rule us in Washington know what’s best. We’ve already decided that it’s better for the federal government to exercise whatever powers it wants, and for the states to content themselves as administrative units dictated to by an imperial capital. You think the states might instead need to protect themselves from Washington, that perhaps the federal government just might overstep its constitutional bounds? What are you, a supporter of slavery?

  Now even if, as I suspect is the case, Turner didn’t know anything about the use of nullification on behalf of human freedom time and again in American history, and even if he’d never heard the name of Joshua Glover, what could justify such a vicious and absurd attack on the inoffensive Susan Lynn? What kind of numbskull would think she or her supporters favored slavery?

  Turner does not actually believe what he is saying. He knows it, we know it, and he knows we know it. He is engaged in the familiar ritual of smearing the good name of anyone who dares to deviate from that glorious continuum from Hillary Clinton to Mitch McConnell that we laughingly call the “mainstream.” He hopes that by associating someone with slavery, he can make that person odious in the minds of those who don’t bother to investigate the matter for themselves.

  That doesn’t work anymore. In early 2010, Keith Olbermann said that when white men call Barack Obama “flippant” or “arrogant,” they are using racist code words. No normal person believes that. Most people have figured out what these crazy accusations are really all about: suppressing opinions of which the Establishment disapproves, by trying to terrify opponents of the regime into silence. But sledgehammer tactics like this don’t actually suppress anything. They just make people sympathetic to the targets of the character assassination, since they know the charges are phony, as usual.

  Nullification is a principle that defends the freedom of all Americans, who are equally threatened by a government that acts without limits. And it is not Birmingham 1963 any longer. Demographic trends of the past several decades show blacks moving in large numbers to the South, the only section of the country where a majority of blacks polled say they are treated fairly. Times have changed. Federal policies, especially but not exclusively related to the “war on drugs,” have helped turn black communities into war zones. Under the present system of federal supremacy, states are forbidden to adopt humane alternatives. Are we so pleased with the outcome that such alternatives are really unthinkable?

  As we join together against a common foe, it is long past time that we started treating each other as human beings, rather than as categories. We ought to recall Murray Rothbard’s refusal to accept that “our enemy today is the poor, who are robbing the rich; the blacks, who are robbing the whites; or the masses, who are robbing heroes and businessmen.” To the contrary, he said, it is the government that is “robbing all classes, rich and poor, black and white, worker and businessman alike” and “ripping us all off.”

  We must strip the mystical veil of sanctity from our rulers just as Tom Paine stripped the sanctity from King George III. And in this task we libertarians are not the spokesmen for any ethnic or economic class; we are the spokesmen for all classes, for all of the public; we strive to see all of these groups united, hand in hand, in opposition to the plundering and privileged minority that constitutes the rulers of the state.20

  When the issue of nullification arose in the 2010 Texas gubernatorial race, with both Texas governor Rick Perry and challenger Debra Medina making reference to the compact theory of the Union, the Establishment went berserk. MSNBC’s Chris Matthews, who knows nothing of the history in this book, exploded that these were the principles of Jim Crow (Jim Crow, of course, having been validated by the U.S. Supreme Court!), and demanded to know if Medina thought she was John Calhoun, whatever that was supposed to mean. This is the media’s standard procedure. Never actually deign to tell us where our arguments are wrong; just point and shout, “Eek! An unapproved opinion!” Matthews then told the two other middle-aged white men on his program that the Tea Party demonstrations weren’t “diverse.”

  The problem with this strategy, if we overlook for the sake of argument how creepy and Orwellian it is, is that it relies on the expectation that Americans are waiting by their televisions to be told what ideas they may support. Now that Keith Olbermann says that people who drive pickup trucks are likely to have sinister intentions, I rather doubt this number is as great as it may once have been. An increasing number of Americans seem to pride themselves on defying the monitors of approved opinion.

  It was just as amusing and predictable during the Texas gubernatorial race to observe historian and constitutional law professor Sanford Levinson rushing to assure Texans and the American public that there was nothing to see here, that of course they could not resist their wise overlords no matter what Thomas Jefferson had tried to tell them. In fact, Levinson evidently figured he’d make it easier for Americans to make up their minds on the issue by obscuring Jefferson’s connection to the idea; we wouldn’t want to confuse the stupid rubes who might be inclined to listen respectfully to an idea traceable to Jefferson. Jefferson, said Levinson, “appeared to suggest” that Kentucky could declare the Sedition Act unconstitutional and void.21 That’s like saying the Declaration of Independence “appeared to suggest” that the states ought to separate from Britain. As we’ve seen, Jefferson didn’t “appear” to “suggest” such a remedy—he came out and said exactly this, and insisted that this power was essential if the federal government was to be kept limited. There was nothing equivocal about it at all. Jefferson’s whole view of the Union is contained in the very document Levinson wants to dismiss in a contemptuous sentence.

  Especially misleading is Levinson’s by-the-book argument that Virginia and Kentucky found no support for their arguments in 1798:

  They received the support of no other states (even those that opposed the Sedition Act), and several states went out of their way to denounce the notion. The Rhode Island Legislature forthrightly resolved that the Constitution places “in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.”22

  For one thing, the vast bulk of the states that protested the Virginia and Kentucky Resolutions expressly affirmed, in their very replies to Virginia and Kentucky, their own support of the Alien and Se
dition Acts, which they considered perfectly constitutional. The official communications of Massachusetts, Pennsylvania, Connecticut, New Hampshire, Vermont (specifically in its reply to Kentucky), Rhode Island, and New York (the latter of which simply declared that no unconstitutional acts had been committed, without mentioning the disputed legislation by name) all took this position. Delaware simply said it wouldn’t deign to argue the matter; it is unclear why we should even bother with such a flippant response. None of the states south of Virginia drafted any replies to the Virginia and Kentucky Resolutions’ invitation to similar action at all, and the existing evidence makes it difficult to uncover why they failed to do so. The most thorough study of the matter, by F. M. Anderson, found it likely that “the South Carolina legislature failed to act upon the resolutions of Virginia and Kentucky because it sympathized with the protest against the Alien and Sedition Laws but scarcely knew its own mind upon the matter of the remedy.” Anderson concluded as follows: “South of the Potomac, where the Republican strength was rapidly rising, it had not yet been sufficiently consolidated to secure expressions of approval for even a portion of the resolutions; but it was strong enough to prevent any formal disapproval of them, as in the North.”23 In brief, the only state that replied to Virginia and/or Kentucky that did not make approving reference to the Alien and Sedition Acts was Delaware, whose response was so curt as to be worthless. This is not good news for Sanford Levinson, who either does not know this history or chooses to distort it. It means he is trying to win the argument by noting (1) how many states disagreed with Virginia and Kentucky at the time, but without adding (2) that virtually all of these states thought it was perfectly constitutional and right to throw people in jail for criticizing the president or Congress. Well, no wonder those states disagreed with Virginia and Kentucky, which were objecting to that very thing! If anything, this strengthens the case for nullification, for what other recourse was available at a time when most of the judges and most of the states had completely lost their minds?