A Brilliant Exposition on the Effectiveness of Nullification

Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas E. Woods, Jr., Washington, DC: Regnery Publishing Inc., 2010, 309 pages, hardcover. (release date June 28, 2010)

Nullification is an indispensable book about what could become the most effective means of stopping an out-of-control federal government: nullification. "Nullification" is simply an act by states (and occasionally individuals) to resist unconstitutional federal laws. The term “nullification” was coined by Thomas Jefferson in his 1798 Kentucky Resolutions that protested the Alien and Sedition Acts’ unconstitutional criminal ban on criticism of the President. (The ban violated the First, Ninth, and 10th Amendments to the U.S. Constitution.) Loaded with primary sources among the more than 100 pages of appendices, Thomas Woods’ Nullification should become an action manual for committed activists of the Tea Party movement on the issue of federal healthcare mandates and a host of other issues.

Woods begins his must-read book by exploding one of the three main arguments usually levied against state nullification of unconstitutional federal laws: There’s nothing in the Constitution about nullification. The three basic arguments against nullification are: 1. It’s unconstitutional, 2. It doesn’t work, and 3. It is nothing more than a tool of racists or secessionists who want another civil war. Woods proves definitively that none of these arguments have the slightest merit. He is quick to point out in Nullification the irony of the first objection to nullification: Most of the politicians who pushed the healthcare law (and are presumed to be nullification opponents) don’t care in the slightest about the U.S. Constitution anyway.

The author explains the constitutional justification for nullification of unconstitutional laws: the 10th Amendment. Indeed, nowhere in the Constitution is any branch of the the federal government given the exclusive right to “interpret” the document. (Yes, it sounds silly to speak about needing an “interpreter” to read a document written in straightforward English prose, but that’s the unfortunate terminology government uses today.) It’s true that the Supreme Court has always acted as if it has the exclusive right to “interpret,” but the supremacy clause in Article 5 of the Constitution merely stipulates:

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This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The supremacy clause simply states that judges must follow the Constitution, not that the Supreme Court is the exclusive judge of what is — or is not — constitutional. Likewise, other branches of government are bound to follow the Constitution. Article 2 specifies the President must swear to “preserve, protect and defend the Constitution of the United States.” In fact, if there is an exclusive interpreter of the Constitution, it is the states or the people, since the 10th Amendment stipulates: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

If the exclusive right of interpretation is not expressly delegated to the United States — and indeed it is nowhere found in the text of the Constitution — then that authority clearly resides in the states and the people. The 10th Amendment is key to understanding both the limitations of the federal government as well as the unlimited nature of the response appropriate from the states and the people. The 10th Amendment figures prominently in Nullification.

Woods also exposes the canard that nullification has never been successful, taking this historical fiction out to the factual Woods-shed. The author cites numerous examples of how nullification has worked in the past, and is continually working in the present. For example, the federal Real ID Act of 2005 tried to tell states how to issue drivers’ licenses but has been effectively nullified by the states. Half of the states issued formal declarations that they have no intention of ever complying with the federal mandate and Woods notes that “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.”

Contrary to claims that nullification is only a tool of racists, nullification of the Fugitive Slave Act from the Compromise of 1850 was also widespread and highly effective, Woods points out. In fact, nearly every state that later seceded (primarily in reaction to Lincoln’s election to the presidency) mentioned it in their resolution of secession. Mississippi complained that Northern state officials “nullified the Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.” South Carolina and Texas made almost identical claims, with Georgia complaining in its secession resolution: “For above twenty years the non-slave-holding States generally have wholly refused to deliver up to us persons charged with crimes affecting slave property. [Northern state officials] shield and give sanctuary to all criminals who seek to deprive us of this property or who use it to destroy us. This clause of the Constitution has no other sanction than their good faith; that is withheld from us.”

Woods almost entirely ignores Jim Crow laws in Nullification, perhaps because it is already well known and emphasis upon it could politically detract from popularization of the nullification issue. But he is quick to point out that nullification was employed against racism in nullifying the Fugitive Slave Act decades before racists copied the tactic and nullified the “equal protection” and clause of the 14th Amendment. Both Jim Crow supporters and their civil rights activist rivals used nullification, though civil rights protesters arguably only attempted to nullify state laws.

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