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

by Thomas E. Woods

  Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

  AMENDMENT XXVI

  Passed by Congress March 23, 1971. Ratified July 1, 1971.

  Section 1

  The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

  Section 2

  The Congress shall have power to enforce this article by appropriate legislation.

  AMENDMENT XXVII

  Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

  No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

  NOTES

  CHAPTER 1

  1. Matt Cover, “When Asked Where the Constitution Authorizes Congress to Order Americans to Buy Health Insurance, Pelosi Says, ‘Are You Serious?’” CNSNews.com, October 23, 2009; available at http://www.cnsnews.com/news/print/55971.

  2. “A Message from Congress: No One Questions Our Authority,” CNSNews.com, February 3, 2010; available at http://www.cnsnews.com/news/print/60932.

  3. Ibid.

  4. Stephen Moore, “The Unconstitutional Congress,” Policy Review, Spring 1995, 22.

  5. See Larry Schwab, The Illusion of a Conservative Reagan Revolution (New Brunswick, NJ: Transaction, 1991).

  6. Thomas Jefferson to William Branch Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. X, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1899), 355.

  7. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156. Emphasis added.

  8. State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longmans, Green, 1911), 113.

  9. The pseudonymous author of The Genuine Book of Nullification (1831): “Thus would the entire operation of this remedy be peaceful and systematic. And this course would not (as it has been said) intimate or involve a compulsion of other States of this Union to coincide with us in our construction of the Federal Constitution, nor that we refused to them the right of construing for themselves. So far from this being the case, we declare the fundamental principle of all State Rights’ Doctrines to be that in case of an aggression upon the Sovereign Rights of the States, each and every State which is so aggrieved has the inherent right ‘to judge for herself of the Infraction as well as of the mode and measure of redress,’ and to interpose her Sovereign shield to protect her own citizens and to maintain within her own limits her rights and authorities, without interfering in any manner with the citizens, or the Rights and Authorities of her sister States. We should not go beyond the Boundaries of our own State—whilst we left to every other State of this Union the right and power in like manner to protect her own citizens from tyrannical oppression.” Hampden (pseud.), The Genuine Book of Nullification (Charleston, SC: E.J. Van Brunt, 1831), 52. Emphasis in original. The phrase “to judge for herself of the Infraction as well as of the mode and measure of redress” is derived from the Kentucky Resolutions of 1798, composed by Thomas Jefferson and discussed in chapter 2 of the present volume.

  10. Information available at http://www.SheriffsFirst.com.

  11. For a full overview and critique of the Court’s arguments, see Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush (New York: Crown Forum, 2008), ch. 9.

  12. See an interesting appreciation, from a left-wing perspective, of Thomas’ strict-constructionist dissent: Fred Gardner, “The Raich Decision: All Power to the Federal Government,” CounterPunch.org, June 14, 2005; available at http://www.counterpunch.org/gardner06142005.html.

  13. Louisiana allows the use of medical marijuana in extremely rare instances.

  14. Woods and Gutzman, Who Killed the Constitution?, 146.

  15. Randy E. Barnett, “Reefer Madness,” Wall Street Journal, March 16, 2007.

  16. Jennifer Steinhauer, “Los Angeles Marijuana Sellers Limited,” New York Times, January 26, 2010; available at http://www.nytimes.com/2010/01/27/us/27pot.html.

  17. Committee on Health and Human Services, House Bill No. 2610; available at http://www.kslegislature.org/bills/2010/2610.pdf. Emphasis added.

  18. See Patrick Reagan, “Cannabis, Compassion, and the Tenth Amendment,” February 15, 2010; available at http://www.campaignforliberty.com/article.php?view=611. Emphasis added.

  19. Attorney Jeff Matthews correctly points out that if anything, these states are being too timid in confining their legislation to guns manufactured in their particular states. For one thing, a gun can cross state lines for reasons having nothing to do with commerce, as when a person moves from one state to another and brings his belongings. Just because a gun crosses state lines does not make it part of interstate commerce. For another, even if a gun were purchased from another state several decades ago, does that mean the federal government right now can regulate that product however it wishes? Surely the federal government’s regulatory control does not enjoy an infinite time horizon. See Jeff Matthews, “Commerce, Jurisdiction, and Firearms Freedom Acts,” TenthAmendmentCenter.com, April 20, 2010; available at http://www.tenthamendmentcenter.com/2010/04/20/commerce-jurisdiction-and-firearms-freedom-acts/.

  20. Information available at http://www.bringtheguardhome.org.

  21. See Ben Manski, “From Liberty to Empire: The Demise of American Defense” available at http://www.bringtheguardhome.org/publications/manski_liberty_to_empire_demise_of_defense.

  22. Bob Unruh, “States’ Rights Rebellion over National Guard,” WorldNetDaily, January 26, 2010; available at http://www.worldnetdaily.com/index.php?pageId=122689; and Bob Unruh, “Obama’s New Pick: Gov. of State that Linked Christians, Violence,” WorldNetDaily, February 7, 2010; available at http://www.worldnetdaily.com/index.php?pageId=124238.

  23. Bob Unruh, “States’ Rights Rebellion over National Guard.”

  24. Ibid.

  25. See John C. Calhoun, “A Discourse on the Constitution and Government of the United States,” in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 178ff.

  26. Chancellor Harper, The Remedy by State Interposition or Nullification (Charleston, SC: State Rights and Free Trade Association, 1832), 7. Emphasis added. Harper’s speech, of which this is the text, was delivered on September 20, 1830. U.S. Senator John Taylor of Caroline said the same thing: “The expression in the constitution, ‘shall be the supreme law of the land,’ is restricted by its limitations and reservation, and did not convey any species of supremacy to the government, going beyond the powers delegated or those reserved.” John Taylor, New Views of the Constitution of the United States (Washington, D.C.: Way and Gideon, 1823), 78.

  27. Kirkpatrick Sale, Human Scale (New York: Coward, McCann & Geoghegan, 1980).

&
nbsp; 28. “59% Favor Letting States Opt Out of Federal Programs,” Rasmussen Reports, February 15, 2010; available at http://www.rasmussenreports.com/public_content/politics/general_politics/february_2010/59_favor_letting_states_opt_out_of_federal_programs.

  29. I got the idea to calculate these figures from Donald W. Livingston, “Dismantling Leviathan,” Harper’s, May 2002, 14. I have updated Livingston’s figures to reflect the 2010 U.S. population.

  30. John C. Calhoun, “Rough Draft of What Is Called the South Carolina Exposition,” in Lence, ed., Union and Liberty, 353. Emphasis added.

  31. Thomas Jefferson to Archibald Stuart, December 23, 1791, in The Life and Writings of Thomas Jefferson, ed. S. E. Forman (Indianapolis: Bowen-Merrill, 1900), 397.

  32. Donald W. Livingston, “The Founding and the Enlightenment: Two Theories of Sovereignty,” in Vital Remnants: America’s Founding and the Western Tradition, ed. Gary L. Gregg II (Wilmington, DE: ISI Books, 1999), 247.

  CHAPTER 2

  1. For additional discussion of these clauses, see Thomas E. Woods, Jr., 33 Questions About American History You’re Not Supposed to Ask (New York: Crown Forum, 2007), in addition to the sources in this book.

  2. The appearance of the term “general welfare” in the preamble to the Constitution is widely understood to be purely rhetorical, since preambles are merely descriptive and not of a legally binding nature. See, among many other sources, Madison’s Report of 1800, which describes it as “contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper every part of the Constitution which succeeds the preamble.” See also Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (Lanham, MD: Lexington, 2007), 169.

  3. Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.

  4. James Madison, Virginia Report of 1800, excerpted in Document V.

  5. Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.

  6. Ibid., 106–7.

  7. Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002), 501.

  8. John C. Eastman, “Restoring the ‘General’ to the General Welfare Clause,” Chapman Law Review 4 (2001): 72–87; Robert G. Natelson, “The General Welfare Clause and the Public Trust: An Essay in Original Understanding,” University of Kansas Law Review 52 (2003): 29–30, 47ff.

  9. The Federalist (referred to in some modern treatments as the Federalist Papers, after Clinton Rossiter’s 1961 collection of these documents) were a series of eighty-five newspaper articles pseudonymously written by Alexander Hamilton, James Madison, and John Jay, in support of ratification of the Constitution. They were composed between 1787 and 1788, and had already been assembled in a single collection by 1788.

  10. See Natelson, “The General Welfare Clause and the Public Trust,” 46.

  11. Randy E. Barnett, “The Original Meaning of the Commerce Clause,” University of Chicago Law Review 68 (Winter 2001); available at http://www.bu.edu/rbarnett/Original.htm.

  12. Raoul Berger, “Judicial Manipulation of the Commerce Clause,” Texas Law Review 74 (March 1996): 704.

  13. Ibid., 705. Emphasis in original.

  14. Berger, Federalism, 89.

  15. Ibid., 95–96.

  16. Jefferson, “Opinion Against the Constitutionality of a National Bank,” 475–76.

  17. St. George Tucker, View of the Constitution of the United States with Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund, 1999), 227–28.

  18. See the contributions by Roane in John Marshall’s Defense of McCulloch v. Maryland, ed. Gerald Gunther (Stanford, CA: Stanford University Press, 1969); John Taylor, Construction Construed and Constitutions Vindicated (Richmond, VA: Shepherd & Pollard, 1820), 165, 166.

  19. James Madison, Report of 1800, excerpted in Document V.

  20. Kurt T. Lash, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and ‘Expressly’ Delegated Power,” Notre Dame Law Review (2008): 1907. Emphasis added.

  21. H. Newcomb Morse, “The Foundations and Meaning of Secession,” Stetson Law Review 15 (1986).

  22. Berger, Federalism, 65. Emphasis added.

  23. Lash, “Original Meaning of an Omission,” 1907; Berger, Federalism, 64. Emphasis added.

  24. Ibid., 1892. Emphasis added.

  25. Berger, Federalism, 64.

  26. Lash, “Original Meaning of an Omission,” 1905. Emphasis added.

  27. These Federalists should not be confused with the people, also known as Federalists, who supported ratification of the Constitution. Jefferson, for instance, was a Federalist when it came to the Constitution (he supported it, with a few misgivings) but did not belong to the post-ratification political party known as the Federalists.

  28. Lash, “Original Meaning of an Omission,” 1893. Emphasis in Chase’s original.

  29. Charles J. Bloch, States’ Rights the Law of the Land (Atlanta: The Harrison Company, 1958), 17–18.

  30. Lash, “Original Meaning of an Omission,” 1916–17.

  31. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It means that the rights singled out in the Bill of Rights, although perhaps among the most significant and the ones most likely to be abused by government, do not exhaust the rights to be enjoyed by the people.

  32. Lash, “Original Meaning of an Omission,” 1925.

  33. This was what North Carolina’s James Iredell meant when he said the Constitution “is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given.” St. George Tucker, in what became the early republic’s predominant text on the Constitution, applied Vattel’s arguments to the American case to make precisely these points. Ibid., 1908–1909, 1923 and passim. Tucker noted that the combined effect of the Ninth and Tenth Amendments “appears to be, that the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.” Tucker, View of the Constitution, 154. References to Vattel may be found throughout Tucker’s text, with particular application to popular sovereignty and the Tenth Amendment.

  34. Lash, “Original Meaning of an Omission,” 1928–30.

  35. Ibid., 1919, 1920–24.

  36. I owe this formulation to Kevin Gutzman.

  37. Berger, Federalism, 11–12.

  38. Ibid., 18n63 and 19n64.

  39. “Britney Spears: ‘Trust Our President in Every Decision,’” CNN.com, September 3, 2003; available at http://www.cnn.com/2003/SHOWBIZ/Music/09/03/cnna.spears.

  40. Thomas Jefferson to William Cary Nicholas, September 7, 1803, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 1140.

  41. See the argument in Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (New York: W.W. Norton, 1986), 115–16, 120, and ch. 6; see also Woods, 33 Questions, ch. 15.

  42. Jefferson made this statement in his draft of the Kentucky Resolutions of 1798, which can be found in The Papers of Thomas Jefferson, vol. 30, 1 January 1798 to 31 January 1799, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2003), 536–43
.

  43. Thomas Jefferson to William Cary Nicholas, September 7, 1803, in Peterson, ed., Thomas Jefferson: Writings, 1140.

  44. South Dakota v. Dole (1987), cited in William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave, 2004), 130. Emphasis added. Many other cases containing similar assertions could of course be cited.

  45. “At present,” Adams said, “there is no more prospect of seeing a French army here than there is in heaven.” Marco Bassani, Liberty, State and Union: The Political Theory of Thomas Jefferson (Macon, GA: Mercer University Press, 2010), 168.

  46. Bassani, Liberty, State and Union, 170.

  47. Madison added, “The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of affairs, than of any other.” James Madison to Thomas Jefferson, May 13, 1798, in The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776–1826, vol. 2: 1790–1804, ed. James Morton Smith (New York: W.W. Norton, 1995), 1048.

  48. Republicans argued that the Alien Friends Act violated the Fifth Amendment, and Jefferson also suggested that the Constitution’s prohibition on federal government interference with the slave trade until 1808 also prevented it from legislating on the migration of aliens, which was therefore properly a state concern.

  49. Bassani, Liberty, State and Union, 167.

  50. Thomas Jefferson to Samuel Smith, August 22, 1798, in The Writings of Thomas Jefferson, vol. 7, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1892–99), 275–80.