Nullification, Says ‘Conservative’ Group; Stick to the Establishment’s Rules
by Thomas E. Woods, Jr.
by Thomas E. Woods, Jr.: The
my Facebook page (which I hope you will like)
sent me a document drafted by a small group in Wisconsin (the Wisconsin
GrandSons of Liberty [WGL]) that strongly opposes nullification
– the Jeffersonian idea that the states must, according to
the very logic of the Union, have the power to prevent the enforcement
of unconstitutional federal laws within their borders.
statement is wrong in nearly every sentence, so for pedagogical
purposes I have decided to examine it closely.
Here are some
of those sentences, along with my commentary and corrections.
us start by being clear as to what nullification is…and
how it is viewed by the legal community.
community” was trained in American law schools, which if anything
are worse than American universities as a whole in terms of promoting
a particular point of view (in this case, Hamiltonian/Marshallian
nationalism) and pretending no others exist. A Tea Party organization
should want to challenge the “legal community,” not
meekly sit at its feet, cross-legged, awaiting instruction.
is a state’s refusal to comply with a specific federal law, which
that state considers to be unconstitutional, to the extent of
breaking the federal compact (our federal Constitution, although
not referred to here in the sense of legal “compact theory”),
in the form specifically of the Supremacy Clause of our Constitution
which states that the Constitution trumps all other laws, especially
that of the individual states.
to the WGL, a nullifying state is breaking the federal compact and
ought to be singled out for condemnation, but the possibility that
the passage of an unconstitutional law by the federal government
might break it is so trivial as not to be worth mentioning. Very
strange priorities for a “limited-government” outfit,
don’t you think?
The WGL gives
us a slight improvement on the Official Law School Version of the
Supremacy Clause. “The Constitution” trumps state laws.
(This is better than the usual Official Law School Version, which
says, “Federal law trumps state law.”) That’s
true as far as it goes, but it’s irrelevant to nullification.
A nullifying state is claiming that a particular law violates the
Constitution. It begs the question to reply by saying the Constitution
trumps all. That is precisely why the state is nullifying the law
in the first place – to vindicate the Constitution against an unconstitutional
For what the
Framers actually meant by the Supremacy Clause, see my article Nullification:
Answering the Objections, and Brion McClanahan’s recent
Founding Fathers Guide to the Constitution. But it obviously
did not mean that any old law the federal government might pass
was on par with “the Constitution” and therefore “supreme.”
No one in his right mind would have ratified the Constitution under
It is based
on a theory originally proposed in the Kentucky Resolutions of
1798 and 1799 authored by Thomas Jefferson and the Virginia Resolutions
of 1798 authored by James Madison and later cited and advanced
by John C. Calhoun. The Resolutions were published ANONYMOUSLY
for good reason – namely the possibility of the Resolutions being
called treasonous and due to the government positions of Jefferson
and Madison at the time of writing.
The idea of
nullification actually extends back to Virginia’s state ratifying
convention of 1788, as Kevin
Gutzman has shown and as I note in my book Nullification.
The Tea Party seems to cheer the possibility that the Virginia and
Kentucky Resolutions might have been regarded as treasonous. The
correct response to the possibility that the authors of these documents
– which simply sum up the obviously
correct compact theory of the Union – might have been hanged
is horror, not delight.
were rejected by every one of the other states. Every state immediately
realized that these resolves were a rejection of the Constitution
and threatened the integrity of the Constitution and the cohesion
of the nation.
This is not
true. I count seven states that issued statements against the Virginia
and Kentucky Resolutions. We are supposed to believe that these
states were just so concerned that the “integrity of the Constitution
and the cohesion of the nation” was threatened by the power
of the states to protect themselves against unconstitutional laws.
In fact, however,
six of those seven states explicitly declared the Alien and Sedition
Acts to be perfectly constitutional. These states supported the
idea that journalists ought to be thrown in jail for criticizing
John Adams. The WGL left that part out. No wonder those states opposed
the Virginia and Kentucky Resolutions!
Also left out
by the WGL is that within less than ten years, some of these very
states were themselves defending the Principles of ’98, as
the ideas of the Virginia and Kentucky Resolutions became known.
In 1820, the legislature of Ohio overwhelmingly approved a resolution
noting that the great majority of Americans shared these views –
views, one might add, which swept Thomas Jefferson into the presidency
At the time,
political leaders stated that the damage of the Resolutions was
“deep and lasting, and was a recipe for disunion.”
But the damage
of the Alien and Sedition Acts was so trivial as not to be worth
mentioning? Again, what kind of priorities are these?
At the time
of the Resolutions’ writing, there was no recognized “power of
a state to reject unconstitutional federal law” and there is none
now; contrary to the flyer’s statement otherwise. The flyer claims
that nullification is “implied in the Constitution” but does not
say where the implication is written although we surmise that
the author of the flyer will say that such power is to be found
in the 10th Amendment. If one cannot undertake to lay a finger
on that article of the Constitution that is the unquestionable
source of such a “constitutional power” then one must conclude
that it does not exist.
start with the last sentence first. The WGL evidently thinks the
states have only the powers expressly granted them in the Constitution.
A more grotesque misunderstanding of the Constitution can hardly
be imagined. The federal government has only the powers
mentioned in the Constitution. The states and the people hold the
remainder – in other words, all the powers not mentioned.
To claim that the states do not possess the power of nullification
because it is not mentioned is to misunderstand the Constitution
entirely. Indeed the WGL has the Constitution exactly reversed.
The WGL is
also incorrect to say no power to resist unconstitutional laws was
recognized. We are to look to the ratifying conventions for the
meaning of the Constitution, said Madison, and Virginia’s
ratifying convention was perfectly clear that the states held such
supporters of the Constitution at the Virginia ratifying convention
assured Virginians that they would be “exonerated” should the federal
government attempt to impose “any supplementary condition” upon
them – in other words, if it tried to exercise a power over and
above the ones the states had delegated to it. Virginians were given
this interpretation of the Constitution by members of the five-man
commission that was to draft Virginia’s ratification instrument.
Patrick Henry, John Taylor, and later Thomas Jefferson himself elaborated
on these safeguards that Virginians had been assured of at their
Resolution of 1799 declared that Kentucky “will bow to the
laws of the Union” but would continue “to oppose in
a constitutional manner” the Alien and Sedition Acts. The
Virginia Resolution did not use either the word or the concept
of nullification. It used interposition which is an entirely different
concept from nullification. Like nullification, interposition
has also been repudiated by the Supreme Court of the United States
believed that nullification was a constitutional manner
of resisting unconstitutional laws, I do not see the WGL’s
point here. The further claim that the Virginia Resolutions in no
way envisioned nullification cannot be taken seriously. A glance
at the Virginia General Assembly debates over the Resolutions makes
this clear. Kevin Gutzman, the most
recent biographer of James Madison, likewise doesn’t buy
it, finding no essential difference between the language of the
resolutions of Virginia and Kentucky. (See Kevin R. Gutzman, “A
Troublesome Legacy: James Madison and ‘The Principles of ’98,’”
Journal of the Early Republic 15 :
569-89.) Judge Abel Upshur, in his 1833 pamphlet An Exposition
of the Virginia Resolutions of 1798, systematically refuted
the claim that the Virginia Resolutions were calling for anything
other than nullification. (Upshur’s work is reprinted in my
the rest of the article
E. Woods, Jr. [send him
mail; visit his
website], a senior fellow of the Ludwig von Mises Institute,
is the creator of Tom
Woods’s Liberty Classroom, a libertarian educational
resource. He is the author of eleven books, including the New
York Times bestsellers Meltdown
(on the financial crisis; read Ron Paul’s foreword)
Politically Incorrect Guide to American History, and most
© 2012 Thomas
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