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

by Thomas E. Woods

  51. Watkins, Reclaiming the American Revolution, 44–47.

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

  53. Ibid., 163.

  54. Hampden, Genuine Book of Nullification, 110.

  55. Thomas Jefferson to John Taylor, November 26, 1798, quoted in Smith, ed., The Republic of Letters, 1071.

  56. Thomas Jefferson to Abigail Adams, July 22, 1804, in The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams, vol. 1, ed. Lester J. Cappon (Chapel Hill, NC: University of North Carolina Press, 1959), 275.

  57. Smith, ed., The Republic of Letters, 1068.

  58. Bassani, Liberty, State and Union, 161.

  59. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 75.

  60. Ibid.

  61. Emphasis added. The full text of the Kentucky Resolutions of 1799 is reproduced in Document IV.

  62. It has often been said that the Virginiabeen said that the Virginia Resolutions of Madison were more restrained than the Kentucky Resolutions of Jefferson. But this argument has been carried too far. “The distinction so often drawn between Jefferson’s strident and Madison’s moderate tone seems strained,” writes historian Kevin Gutzman. “There is no difference between ‘null, void, and of no force or effect’ and ‘invalidity,’ between ‘nullifying’ a statute and ‘interpos[ing]’ to prevent its enforcement.” Kevin R. Gutzman, “A Troublesome Legacy: James Madison and ‘the Principles of ’98,’” Journal of the Early Republic 15 (Winter 1995): 581. It is hard to credit the idea that in the midst of calls for nullification, and with secession on the lips of people like John Taylor of Caroline and William Branch Giles, a man as intelligent as Madison wouldn’t have known how his words would be taken. “One of Madison’s most notable ‘tactical adjustments,’” Gutzman continues, was “his campaign, as a retired former president, to becloud the events of 1798 by denying they had meant what they plainly had meant.” K. R. Constantine Gutzman, “‘Oh, What a Tangled Web We Weave…’: James Madison and the Compound Republic,” Continuity 22 (Spring 1998): 22. That Madison indicated in 1830 that he had never meant to propose nullification in his work on the Constitution or in his Virginia Resolutions of 1798 is very difficult to credit. That is certainly how other state legislatures had understood his words at the time. Indeed, Madison’s frequent change of positions throughout his career was well known. Albert Taylor Bledsoe was blunt: “The truth seems to be, that Mr. Madison was more solicitous to preserve the integrity of the Union, than the coherency of his own thoughts.” Albert Taylor Bledsoe, The War Between the States (Lynchburg, VA: J. P. Bell, 1915), 158. (Bledsoe’s book was originally published in 1866 under a different title.) Madison even tried denying that Jefferson had included the word “nullification” in his draft of the Kentucky Resolutions of 1798, an assertion he knew was false since he had seen the draft himself. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, Madison had to withdraw that claim. Watkins, Reclaiming the American Revolution, 114.

  A widely read book on nullification, published in 1831, dealt a blow to Madison’s efforts to explain away his earlier writing. Hampden, the pseudonymous author, noted that the other state legislatures clearly interpreted the Virginia Resolutions to mean that the states could interpose for the protection of their people against the unconstitutional encroachments of the federal government. “How were these replies and protests of the States met by Mr. Madison in his famous and elaborate report upon them in ’99? Does he declare in his report that they had misapprehended, or in any way misrepresented his meaning in his resolutions of ’98? No indeed! Nothing of the kind!…Indeed it is apparent from the whole political course of Mr. Madison that his fundamental principles in politics are those of consolidation and monarchy—he so openly declared them in his Speeches in the General Convention, and such were his known and commonly avowed opinions of that day. When however, under the superior and more republican mind of Mr. Jefferson the Doctrines of State Rights became universally prevalent, and those of Consolidation were most odious and unpopular, we find Mr. Madison supporting these Republican principles with all the vigor of his naturally fine intellect, under the mentorship of his illustrious friend. But alas, upon the demise of that great man we find Mr. Madison again relapsing into his original strong Federal and Consolidation tenets—giving to the words and sentiments of his early and vigorous manhood a construction totally repugnant to their obvious and universal acceptation and in opposition to the contemporaneous understanding of his friends and of the Legislatures of the day.” Hampden (pseud.), The Genuine Book of Nullification (Charleston, SC: E. J. Van Brunt, 1831), 54, 55.

  On the weakness of Madison’s later efforts to show that the Virginia Resolutions did not mean what they clearly did mean and what everyone had taken them to mean, see Kevin R. C. Gutzman, “From Interposition to Nullification: Peripheries and Center in the Thought of James Madison,” Essays on History 36 (1994). Essays on History is the University of Virginia’s online journal. As of this printing the article is available online at http://www.constitution.org/jm/gutzman1.html. See also Bassani, Liberty, State and Union, 195–96. A small industry has developed in defense of the claim that in spite of appearances, and in spite of what partisan humor at the time joked about, Madison was in fact perfectly consistent throughout his political career. The classic statement of this position is Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the American Republic (Ithaca, NY: Cornell University Press, 1995). For the other side, see Kevin R. C. Gutzman, James Madison and the Making of America (New York: St. Martin’s, forthcoming 2011).

  63. Kilpatrick, The Sovereign States, 315n28.

  64. Gutzman, Virginia’s American Revolution, 126, 127.

  65. Kilpatrick, The Sovereign States, 82.

  66. Speech of Edward Livingston on the Alien Bill, June 19, 1798, in American Oratory, or Selections from the Speeches of Eminent Americans, compiled by A Member of the Philadelphia Bar (Philadelphia: DeSilver, Thomas & Co., 1836), 128.

  67. The Virginia and Kentucky Resolutions of 1798 and ’99; with Jefferson’s Original Draught Thereof, and Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to State Rights, with Other Documents in Support of the Jeffersonian Doctrines of ’98, ed. Jonathan Elliot (Washington, D.C.: Jonathan Elliot, 1832), 9.

  68. Ibid.

  69. Ibid., 11, 13.

  70. Bassani, Liberty, State and Union, 178.

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

  72. Bassani, Liberty, State and Union, 161–62.

  73. Eugene D. Genovese, The Southern Tradition: The Achievement and Limitations of an American Conservatism (Cambridge: Harvard University Press, 1994), 56–57.

  CHAPTER 3

  1. William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave, 2004), 116.

  2. Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776–1840 (Lanham, MD: Lexington, 2007), 114.

  3. To His Excellency Thomas Jefferson: Letters to a President, ed. Jack McLaughlin (New York: W.W. Norton, 1991), 19.

  4. Ibid., 21.

  5. Ibid., 27.

  6. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 127.

  7. State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longmans, Green, 1911), 34.

  8. Ibid., 40.

  9. Ibid., 41–42.

  10. Ibid., 43–44. Emphasis added.

  11. Ibid., 58.

  12. Edward Payson Powell, Nullification and Secession in the United States: A History of the Six Attempts During the First Century of the Republic (New York: G.P. Putnam’s Sons, 1897), 211.

  13. Ibid., 224.

  14. Ames, ed., State Document
s on Federal Relations, 71–72. Emphasis added.

  15. Ibid., 75.

  16. On the unconstitutionality of the draft, 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. 8.

  17. Ames, ed., State Documents on Federal Relations, 76.

  18. Ibid., 76–77.

  19. Daniel Webster, speech before the House of Representatives, December 9, 1814, in We Who Dared to Say No to War: American Antiwar Writing from 1812 to Now, eds. Murray Polner and Thomas E. Woods, Jr. (New York: Basic Books, 2008), 5.

  20. Clyde N. Wilson, “Q&A on Nullification and Interposition,” LewRockwell.com, February 8, 2010; available at http://www.lewrockwell.com/wilson/wilson32.1.html.

  21. Webster, speech before the House of Representatives, December 9, 1814, in Polner and Woods, eds., We Who Dared to Say No to War, 9. Emphasis added.

  22. Ames, ed., State Documents on Federal Relations, 76.

  23. Emphasis in original. The full text of both the resolutions and the report appears in The Virginia and Kentucky Resolutions of 1798 and ’99; with Jefferson’s Original Draught Thereof, and Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to State Rights, with Other Documents in Support of the Jeffersonian Doctrines of ’98, ed. Jonathan Elliot (Washington, D.C.: Jonathan Elliot, 1832), 80–81.

  24. Ames, ed., State Documents on Federal Relations, 53.

  25. Ibid., 142.

  26. Ibid., 149.

  27. Watkins, Reclaiming the American Revolution, 98–99.

  28. Moreover, when during the Mexican War some pro-slavery southerners contemplated the annexation of all of Mexico, Calhoun was strongly opposed.

  29. See H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens, OH: Ohio University Press, 2006), 122.

  30. According to Clyde Wilson, the distinguished historian who edited The Papers of John C. Calhoun, the argument that the nullification controversy of 1832–1833 was “really” about slavery “became a popular theory for the first time in the 1960s. It had not occurred to anyone before…. The South Carolinians, and every other state, and every Northern free trader, and every tariff advocate said at the time it was about tariff protection—its actual results and its justice or injustice. Nobody said a word about slavery. The interpretation basically comes back to the belief that everything that Southerners do and say is a code word about race, and that what they said about the tariff was therefore not really sincere and not really valid.” Clyde N. Wilson, personal correspondence with the author, February 23, 2010.

  31. Ames, ed., State Documents on Federal Relations, 175–76.

  32. For an overview of the constitutional case against the Fugitive Slave Act of 1850, see Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860 (Chapel Hill, NC: University of North Carolina Press, 1968), ch. 2.

  33. Robert Wild, “The Spirit of Nullification and Secession in the Northern States,” Proceedings of the State Bar Association of Wisconsin (Milwaukee: The Evening Wisconsin Printing Co., 1912), 135.

  34. Baker, The Rescue of Joshua Glover, 10.

  35. Kilpatrick, The Sovereign States, 215.

  36. Baker, The Rescue of Joshua Glover, 93. Emphasis in original.

  37. Ibid., 118, 120–21, 132.

  38. Lane County v. Oregon, quoted in Kurt T. Lash, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and ‘Expressly’ Delegated Power,” Notre Dame Law Review (2008): 1950.

  39. I owe this last point to Robert P. Murphy.

  CHAPTER 4

  1. 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), 261.

  2. Not all compact theorists supported nullification; John Randolph of Roanoke, like numerous others, believed in the right of secession but not nullification.

  3. Joseph Story, Commentaries on the Constitution of the United States, 4th ed., vol. 1 (Boston: Little, Brown, 1873), 124. The first edition was published in 1833.

  4. The Correspondence and Public Papers of John Jay, vol. 3, 1782–1793, ed. Henry P. Johnston (New York: G.P. Putnam’s Sons, 1891), 454. Emphasis removed. Jay’s remarks are drawn from his opinion in Chisholm v. Georgia (1793).

  5. Abel P. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, VA: Edmund and Julian C. Ruffin, 1840), 11.

  6. Ibid., 12.

  7. Ibid., 14.

  8. Jackson’s Proclamation is available at http://avalon.law.yale.edu/19th_century/jack01.asp.

  9. Littleton Waller Tazewell, A Review of the Proclamation of President Jackson (Norfolk: J.D. Ghiselin, 1888), 25. Tazewell’s reply to Jackson originally appeared as a series of newspaper articles following the issuance of Jackson’s Proclamation of December 10, 1832.

  10. Upshur, Brief Enquiry, 15.

  11. Alden T. Vaughn, New England Frontier: Puritans and Indians 1620-1675, 3rd ed. (Norman, OK: University of Oklahoma Press, 1995), 174–75, 176–77.

  12. Alexis de Tocqueville, Democracy in America, vol. 2, trans. Henry Reeve (New York: D. Appleton, 1904), 426. Volume 1 of Democracy in America was originally published in 1835 and volume 2 in 1840.

  13. Richard Cobden to W. Hargreaves, June 22, 1861, in The Life of Richard Cobden, vol. 2, ed. John Morley (London: Macmillan, 1908), 381–82.

  14. Upshur, Brief Enquiry, 15.

  15. Story, Commentaries, vol. 1, 158.

  16. If the First Continental Congress had had the character Story ascribes to it, it would be more difficult to account for the lackluster response from such colonies as Georgia and New York. Georgia was not represented as a colony; one person from Georgia was admitted as a delegate from his parish but did not vote on issues that required a majority of colonies to pass, since he had not been sent as a delegate of a colony. New York’s representation was even more confusing, with various people from different parts of the colony portraying themselves as delegates from New York but not being recognized as such by the colonial government. The Continental Congress, Upshur explains, was “a deliberative and advisory body, and nothing more; and, for this reason, it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of congress had no obligatory force whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures, for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given.” Upshur, Brief Enquiry, 20.

  17. Upshur, Brief Enquiry, 31.

  18. Ibid., 33.

  19. Emmerich de Vattel, The Law of Nations, trans. Joseph Chitty (Philadelphia: T. & J.W. Johnson, 1867 [1758]), 2.

  20. Robert Wild, “The Spirit of Nullification and Secession in the Northern States,” Proceedings of the State Bar Association of Wisconsin (Milwaukee: The Evening Wisconsin Printing Co., 1912), 125.

  21. Thomas Jefferson to Edward Everett, April 8, 1826, in The Writings of Thomas Jefferson, vol. X, 1816–1826, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1899), 385.

  22. “The United States were states, and they had joined together. The fact that their union had no set end date, in part because the length of the war could not be foreseen, was denoted by calling it ‘perpetual.’ (In those days treaties between European states often purported to be ‘perpetual.’ This did not mean that neither side could bring a treaty agreement to an end, but that there was no built-in sunset provision.)” Kevin R. C. Gutzman, The Politically Incorrect Guide to the Constitution (Washington, D.C.: Regnery, 2007), 12. Do not let this book’s playful title fool you; it is a very significant work, even if tailor
ed to a popular audience.

  23. See Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913), 190-91.

  24. Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776–1840 (Lanham, MD: Lexington, 2007), 11.

  25. Ibid., 19.

  26. Ibid., 22.

  27. Ibid., 30.

  28. Raoul Berger, Federalism: The Founders’ Design (Norman, OK: University of Oklahoma Press, 1987), 65.

  29. Kevin R. C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” Review of Politics 66 (Summer 2004): 491.

  30. Gutzman, Virginia’s American Revolution, 86.

  31. Ibid.

  32. James Madison, who unlike Randolph and Nicholas was never an attorney general and was not even a lawyer, wrote to a friend at the time that these conditions would have no legal force. He was wrong. As Professor Gutzman puts it, “Charity compels one to blame this misstatement on [Madison’s] ignorance of the law of contracts and of treaties.” Kevin R. C. Gutzman, “On Constitutional Issues,” Modern Age 42 (Fall 2000): 399.

  33. For the text, see “A Memorial From the General Assembly of Virginia,” December 16, 1790, in Hamilton and the National Debt, ed. George Rogers Taylor (Boston: D.C. Heath, 1950), 56–57. The General Assembly argued not simply that the power to assume the debts had not been granted, but also that such power had been expressly foreclosed by Article VI of the Constitution, which read in relevant part: “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”

  34. Patrick Henry: Life, Correspondence and Speeches, vol. 2, ed. William Wirt Henry (New York: Charles Scribner’s Sons, 1891), 456.

  35. Ibid., 457.

  36. Thomas Jefferson to James Madison, August 23, 1799, 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), 1119.