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

by Thomas E. Woods

  Levinson also fails to make note of the widespread recourse to and respect for the Principles of ’98 that we observe over the ensuing decades. That, too, might give people ideas, and we can’t have that. He quotes the Rhode Island legislature in 1799 and its criticism of the Principles of ’98, without mentioning what the Rhode Island legislature was saying only ten years later. Let us rectify that omission right now: “The people of this State,” declared the Rhode Island legislature in 1809, “as one of the parties to the Federal compact, have a right to express their sense of any violation of its provisions and it is the duty of this General Assembly as the organ of their sentiments and the depository of their authority, to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.”24

  No, Rhode Island didn’t support Virginia and Kentucky in 1799, when it drafted its response to those states. Levinson is right about that. But isn’t it a teensy-weensy bit worth mentioning that only a decade later that very same state was embracing the very principles it had once spurned? Isn’t Rhode Island’s open challenge to the federal government in 1809, employing the language and principles of the Virginia and Kentucky Resolutions, a little bit more important than a letter its legislature wrote in 1799? Don’t actions, after all, speak louder than words?

  It wasn’t just Rhode Island, of course; as we saw in chapter 3, within ten to fifteen years many of the states that had once been critical of Virginia and Kentucky were themselves speaking of the right of state interposition, and in the ensuing decades so were other states that in 1798 had not even been admitted to statehood yet. Recall the Ohio legislature’s 1820 resolution in support of the Virginia and Kentucky Resolutions that declared the Principles to have been “recognized and adopted by a majority of the American people.”25 So revered were these documents, in fact, that Andrew Jackson himself, in the course of opposing South Carolina’s act of nullification, was at pains to square his own position with that of the Virginia Resolutions.26

  Not a word about any of this from Sanford Levinson. Nullification was merely something Jefferson once “appeared to suggest,” was later tried by South Carolina, and that was that. Nothing about the centrality of the Virginia and Kentucky Resolutions in Virginian legal education, nothing about New England’s use of interposition, nothing about the appeal to the Kentucky Resolutions over sixty years later in Wisconsin’s opposition to fugitive-slave laws, and certainly nothing about the origins of nullification in mainstream Virginian political thought stretching back to that state’s ratification convention and beyond. If you, dear reader, can come up with an innocent explanation for so systematic an omission, your imagination is better than mine.

  Nullification is not a silver bullet, of course. It cannot solve all problems, and carrying it through effectively will be difficult. But is that so surprising? The economic and political interests that benefit from the current system, in which the federal government does as it wishes without effective check from any quarter, swarms of federal employees line their pockets in the name of serving the public good, and countless pressure groups win lucrative special privileges for themselves, are formidable. Any attempt to reverse the process is going to be an uphill battle. If we are waiting for a remedy that will work like magic, we will be waiting a long time.

  The federal courts will never allow the states to get away with nullification, skeptics may say. Perhaps so, but is this any different from saying that the federal government as a whole will object to nullification? No one doubts that the federal courts will object. The question is whether this should matter. Not for nothing did Jefferson describe the federal judiciary as “working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one.”27 The federal courts have done nothing, at least since the 1930s, as the rest of the federal government has dismantled the restraints on its power that the Framers of the Constitution clearly and obviously instituted. It would be farcical even by the federal courts’ standards for them to decide that the one thing they will condemn is the states’ efforts to restore these constitutional limitations. Whether or not one particular branch of the federal government is unhappy with state resistance is beside the point; as we’ve seen in the case of medical marijuana and are about to see in other aspects of American life, when the people of a state have determined to stand up to the federal government, merely being handed a declaration by that same government ordering them to cut it out is unlikely to divert them. Any such pronouncement by a federal court should itself be nullified, if not simply ignored.

  Nullification efforts can play an important educational role even when unsuccessful. The very idea that the federal government might do something unconstitutional hardly enters into political discussion today. The vast bulk of Americans proceed through twelve years of government-funded education that (by an interesting coincidence) teaches them all about the wonders of the federal government, how lost they’d be without it, and how foolish it would be to worry that the Constitution might not authorize most of what it does. The very attempt at nullification and the ensuing controversy and debate can give rise to a veritable seminar in American history and constitutionalism, thereby filling the gaps that remain in most Americans’ formal education.

  Jon Roland, whose Constitution Society website has garnered over 100 million page views, proposes a state “Federal Action Review Commission,” an institution that might first be established in one of the states where awareness of constitutional issues is relatively higher. The commission’s rotating membership would be drawn from a pool of constitutional scholars compiled by some branch of the state government. It would meet with great frequency, perhaps even weekly, and be charged with the task of reviewing recent congressional legislation for constitutionality. Should a federal law be found unconstitutional, the commission would declare it so, and issue an edict ordering state officials not to cooperate in its execution. Citizens of the state would be urged not to cooperate. A state fund would be established to provide legal support to those who refused their cooperation with an unconstitutional federal law.28

  A radical step? No doubt. But since nothing else has worked, and pursuing the same failed strategy again and again holds little promise, what alternative exists? Plenty of people make nice salaries writing think-tank reports, some of them quite good, about the benefits of freedom in this or that area. Isn’t it time to supplement all the report-writing with vigorous, constitutional action in the tradition of Jefferson? It can scarcely be doubted where the Sage of Monticello’s sympathies would lie if he had the misfortune of seeing what had become of his country.

  We cannot know in advance how Roland’s proposal would work out in practice. On the one hand, the historians and legal scholars who would be chosen for the commission would by and large be drawn from professions dominated by people who think things are just fine, and that the federal government’s present size and activities are perfectly in line with the Constitution. But there are some mitigating factors. This lame result would not occur in all states. In places like Texas, as well as in the West and Pacific Northwest, enough sensible and knowledgeable people could well be appointed to make things interesting. And these days, enough uneasiness exists about certain federal actions that even conventional legal thinkers might be willing to consider taking a stand against them—especially if an informed and angry population urged them to do so.

  Roland suspects the following outcome. In a state like Texas, where a critical mass of the population may, in fact, understand the constitutional issues at stake, the commission would nevertheless start out timidly, declaring unconstitutional only the most egregious but still relatively minor federal activities. The very fact of declaring any federal action to be unconstitutional, though, would provoke debate and discussion among the general public. Faced with the possibility
that something real might actually be done about federal lawlessness for a change, the public may well demand still more such findings, thereby emboldening the commission further. This momentum would undoubtedly spread to other states, where candidates for office may even find it in their interest to champion the constitutional cause.

  Roland suggests that immediately using the commission for the purpose of large-scale constitutional challenges could backfire, in that it could lead to the suppression of the commission itself. It should proceed more gradually, he says, in tandem with popular support and education. How rapidly or cautiously such a commission should proceed ultimately depends on the status of public opinion in each particular state, and the degree to which the people of that state are willing to make a stand against violations of the Constitution. Either way, it is a worthwhile step forward to keep the idea of constitutional limitations on government before the general public on a regular basis. The very existence of such a commission would strike at the superstitious reverence Americans are taught to have for the federal government, portrayed in all our textbooks as a benevolent force innocently pursuing the common good. It would suggest that the federal government is, as Jefferson taught, something to be on guard against, not the glorious source of costless benefits granted by selfless crusaders for justice. There comes a time to put away foolish things. Now is that time.

  I have long been skeptical that any government, constitutional or otherwise, can remain limited over time. If we grant one sector of society both a monopoly on the initiation of violence and the related power to tax, and then hand it a piece of paper and ask it to stay limited, we should know in advance what is certainly going to happen. Lysander Spooner, abolitionist and anarchist, once said that the Constitution has either authorized the government we have now or has been helpless to prevent it. “In either case,” he starkly concluded, the Constitution “is unfit to exist.”

  At the same time, institutional restraints that pit power against power might postpone or hobble a regime’s growth. That is what Jefferson’s remedy seeks to do. Jefferson knew that the natural tendency was for power to advance and liberty to give ground. So he sought to slow down that process however he could—including by recourse to nullification.

  In earlier times, advocates tried to make nullification more palatable to skeptics by assuring them that it would be used only infrequently and as an absolutely last resort. Today this assurance hardly seems necessary. The regime in Washington has grown so destructive and parasitic, its activities so inimical to the welfare, liberties, and prosperity of the people and so remote from any conception of constitutionally limited government, that supporters of nullification need not apologize for disrupting its plans. That, in fact, is the point. They should be congratulated for doing what they can to slow it down. Again, nothing else has worked.

  Recall the words of the Kentucky Resolutions of 1799: “If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence.” Can an honest observer doubt that this unheeded warning has come to pass? Has the time not come to follow the advice of the man who consistently predicted this outcome?

  We have been helpless spectators long enough. Even if some opponents of government growth might have blanched at nullification a few decades ago, they can hardly reject it out of hand now. How much longer do we have to fail before we admit that maybe something different, something we might have scorned years ago, but that has been used to good effect and for honorable purposes in the past, might now be necessary? If anything is going to change, we must employ every mechanism of defense that Thomas Jefferson bequeathed to us, not just the ones that won’t offend Katie Couric or the New York Times.

  Nullification is about learning to exercise our rights, whether the courts or the politicians want us to or not. Instead of waiting for our liberties to be handed back to us, we in our states can follow Jefferson’s noble example and take the lead in saying no to the ambitions of a government that would have horrified the founding generation. For, as Lord Byron said, “Who would be free, themselves must strike the blow.”

  Part II

  Eleven Essential Documents

  I.

  James Madison and the “Duty” to Interpose

  The Virginia Resolutions of 1798

  The Virginia Resolutions of 1798, introduced in chapter 2 and referred to throughout this book, were drafted by James Madison and agreed to by the legislature of Virginia in December 1798.

  Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic; and that they will support the government of the United States in all measures warranted by the former.

  That this Assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges its powers; and that, for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that union, because a faithful observance of them can alone secure its existence and the public happiness.

  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 that compact, as no further valid than 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.

  That the General Assembly doth also express its deep regret, that a spirit has, in sundry instances, been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases, and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.

  That the General Assembly doth particularly PROTEST against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the federal government, and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the Federal Constitution; and the other of which acts exercises, in like manner, a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto,—a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.

  That this state having, by its Convention, which ratified the Federal Constitution, expressly declared that, among other essential rights, “the liberty of conscience and the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States,” and from its extreme anxiety to guard these rights from e
very possible attack of sophistry and ambition, having, with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution,—it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.

  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 in 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 cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.

  That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof, and that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.