How
To Resist Federal Tyranny
by
Fergus Hodgson
According
to Rasmussen Reports, constituent hostility to the federal government
is at an unprecedented high, and twenty state attorneys general,
including Louisiana’s, are challenging the constitutionality
of the 2010 federal health care reform. However, in his latest book,
Nullification:
How to Resist Federal Tyranny in the 21st Century, Thomas
Woods argues for more than voter scrutiny and pleas to the United
States Supreme Court. He advocates the rediscovery and use of state
nullification against unconstitutional federal laws.
An American historian and senior fellow with the Ludwig von Mises
Institute, Woods was recently interviewed by the Pelican Institute.
(Click here to listen to the interview
– 31 minutes.) This gave him the opportunity to explain
precisely what nullification is in the American context, why the
federal government appears to be without limit in its powers, and
how nullification has been and still is used effectively to maintain
constitutional limits. He also responded to what he sees as the
leading red herrings against states legally disobeying or interposing
themselves against the federal government.
In Woods’ view, the federal government is so far from its constitutional
restraints that the Constitution has become a non-issue. He believes
the contempt is bipartisan and so open that congressmen do not even
address the matter. One example he gives is from a reporter who
questioned House Speaker Nancy Pelosi on where she found constitutional
authority to impose a universal health insurance mandate. Her response:
“Are you serious. Are you serious?” Yes he was, but she
shook her head and took the next question.
The problem,
he believes, boils down to the lack of an independent arbiter between
the states and the federal government. When there is a disagreement
over the constitutionality of state or federal laws, there appears
to be a widespread, and in his view faulty, assumption that the
federal government is the sole adjudicator. So the federal government
has no problem nullifying state laws as unconstitutional, but in
recent times few states have been bold enough to strike down unconstitutional
federal laws.
Since the Supreme
Court is a branch of the federal government, Woods would consider
pleas to the court as analogous to asking a criminal to police himself.
Its members are nominated by the President and approved by the Senate,
which have little incentive to confirm anyone who would wish to
rein them in. That is why many members of the Supreme Court have
adopted the “living constitution” idea, working off the
general welfare, interstate commerce, and necessary and proper clauses.
Woods details his rebuttals to arguments for expansive interpretations
in his book, and he gives a brief synopsis in the interview. His
conclusion, though, leaves little wiggle room. As far as he is concerned,
the deliberate reinterpretation of these clauses gives leeway for
the federal government to do just about anything – “precisely
what the American colonists fought against in the American Revolution…
If we’d like to spit in the faces of our ancestors who fought
for American independence from the British, we should by all means
advocate a ‘living Constitution.’”
So what can individuals do, other than fight court cases and campaign
for officials who adhere to the Constitution? Woods believes that
more aggressive action is necessary, for states to simply not obey
or enforce unconstitutional federal mandates, and he points to recent
instances of successful nullification.
“Two dozen states nullified the REAL ID Act of 2005, legislation
which aroused the opposition of both fiscal conservatives, who resented
another unfunded federal mandate… and civil libertarians, who
raised privacy concerns… Resistance was so widespread that
although the law is still on the books, the federal government has,
in effect, given up trying to enforce it.”
The other current
example Woods raises is medical marijuana, which was first legalized
in California in 1996.
“Even though the marijuana was grown in one state, was never
transported out of that state, was never sold at all, and was immediately
consumed in that state, the Justice Department wanted it to be treated
as interstate commerce… [The Supreme Court] declared that medical
marijuana suppliers and users could be prosecuted even when the
states had legislated to the contrary.”
“And yet the use of medical marijuana goes on as if none of
this ever occurred. There are as many as 1,000 functioning dispensaries
in Los Angeles County alone… in direct defiance of federal
will.” In fact, fourteen states have proceeded to join California
in legalizing marijuana for medical use.
There is, of course, a long history to the use of nullification.
Woods takes it right back to Thomas Jefferson and documents its
many successes throughout the 18th and 19th centuries. However,
not all constitutional scholars or liberty-oriented lawyers share
Woods’s positive interpretation or seek to revive the concept.
Clint Bolick, of the free enterprise-oriented Goldwater Institute
in Arizona, is a leading figure in the legal battle for greater
state sovereignty. He has achieved notable success litigating constitutional
challenges, particularly regarding state-based school choice programs,
and he questions whether nullification is an effective tool.
“Advocates of liberty need to combine pragmatism with principle.
The question of overt nullification was settled by the Civil War.
Increasingly, the United States Supreme Court is recognizing limits
on federal power and expanded state authority to protect liberty.
That is the framework in which we should operate.”
Woods does
concede that nullification is not a perfect solution, and a violent
conflict is not a “metaphysical impossibility… But politically
it would be extremely unlikely,” although presumably it would
become more likely as the issues rose in gravity. He also does not
base his views on any great confidence in state-level politicians.
“The states, by and large, are run by sociopaths too half the
time. But realistically speaking in 2010, where are the threats
to Americans’ liberties coming from? Are they coming from Boise,
Idaho? They’re coming from Washington, DC… Given that
we have tried every other means of keeping the federal government
limited, I don’t see why, just out of hand, we should dismiss
this.”
Since the idea of nullification is enough to draw accusations of
treason and nostalgia for a racist pre-Civil War era, Woods does
devote time to these concerns, although he believes them to be deeply
misguided.
“This is not un-American or treasonous. What’s treasonous
is passing an unconstitutional law and imposing that on the public…
That anyone could think that somebody today secretly favors slavery,
or thinks that this is going to come – it’s unbelievable…
I don’t think you’ll find any bigger opponent of slavery
than me… Look at American history. When was nullification used
to defend slavery? Never. When was nullification used to fight slavery?
Lots of times – and in fact the northern states used it to
fight against what they considered to be unconstitutional aspects
of the fugitive slave laws.”
While Nullification has not sold as well as Woods’s next most
recent work, Meltdown
– a New York Times bestseller – he anticipates
that tension between the federal government and the states will
continue to mount. With that the pressure for nullification will
follow, and the “only book in town” on the subject will
draw greater attention.
September 22, 2010
Fergus
Hodgson [send him
mail] is the Capitol Bureau Reporter with the Pelican
Institute for Public Policy. This article also appears on the
Institute’s blog page,
where readers may place comments.
Copyright
© 2010 Pelican Institute for Public Policy
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