Know Your States' Rights

by Jeff Taylor

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Nullification: How to Resist Federal Tyranny in the 21st Century, Thomas E. Woods Jr., Regnery, 309 pages

What happens when the referee in a ballgame is a member of one of the competing teams? What if this ref is imbued with overweening confidence in his side’s natural superiority, and he’s so sure of his own sense of fair play that any questioning of his calls is deemed illegitimate? Meet the United States federal judiciary.

Self-righteousness and concentrated power are a dangerous combination. Their conjunction in American politics can be traced to the rulings of Chief Justice John Marshall, an arch-Federalist who shared Alexander Hamilton’s belief in political centralization. The federalist cause from which their party took its name was a distinct move away from the decentralism of the Articles of Confederation, but its advocates insisted that federalism did not mean a consolidated, unitary government of the sort favored by kings and despots. The U.S. Constitution and federal legislation would be the highest law of the land, according to the Supremacy Clause. But traditional rights and responsibilities would be reserved to the state governments and to the people themselves. This principle was enshrined in the Tenth Amendment.

The balance between the Supremacy Clause and the Tenth Amendment was maintained while each level of government stuck to its constitutionally proper areas of concern. But gradually federal power intruded into areas formally – and formerly – reserved to the states. Beginning with the Marshall court in the early 19th century, with its invention of the power of judicial review and its creative use of constitutional loopholes, the federal judiciary facilitated this growing imbalance. The Supreme Court’s bias should have been no surprise since it belonged to one of the competing levels of government. Once the federal judiciary decided to begin ruling in favor of its own team, there was no official mechanism that could stop the concentration of power in D.C.

This is where Thomas Woods Jr. comes in. His new book shines much-needed light on the doctrine of nullification. Long marginalized as an instrument of the racist, neo-Confederate fringe, today when the idea of states’ rights makes news it is more likely than not in connection with the burgeoning Tea Party phenomenon. But a political movement held together more by a common enemy than by a shared platform might not be the best vehicle for the restoration of constitutional balance. Woods’s book may help spark a wider, better-informed, and less partisan movement on behalf of states’ rights.

Nullification, also known as interposition, is simply the repudiation or ignoring of a federal law by a state government. Rooted in an honorable tradition, it can be a powerful tool for the people and a means of curbing centralized power. In recent decades, the first organized effort to nullify federal laws came from the Left and the libertarian Right in the form of medical-marijuana initiatives. What began in California in 1996 with Proposition 215 has spread, with more states attempting to legalize cannabis for medicinal and recreational use. In the past few years, constitutional conservatives have also used nullification to protect Second Amendment rights and to block the Real ID Act of 2005. Most recently, there have been state efforts to overturn or opt out of Obamacare.

This is the subject matter expertly covered by Woods. Half of his book consists of primary sources: 11 essential documents plus the Constitution itself. The evidence Woods collects is taken from a 60-year span of American history, the pre-Leviathan period before the Civil War, Progressive era, New Deal, Cold War, and Great Society entombed states’ rights seemingly forever. Woods has performed a public service by assembling important but largely forgotten documents in one convenient location. Here you will find the text and explication of the Virginia and Kentucky Resolutions of 1798–99, New England’s nullifying response to Jefferson’s Embargo Act, the South’s dispute with Jackson over tariff policy, and Wisconsin’s rejection of the Fugitive Slave Act.

Nullification is a brief book in terms of original authorial content, but what’s here is wonderful. Woods is a scholar, yet his writing style is accessible, with just the right amount of punch. He sets forth the case for nullification with logic and nuance but in a conversational tone.

Woods succinctly summarizes the reasoning behind interposition:

Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power.

Nullification spends some time on each of the three big constitutional loopholes used by the feds to enlarge their scope of power since the 1810s: the general welfare clause, commerce clause, and necessary and proper clause. The neglected Tenth Amendment is explained, as are the Virginia and Kentucky Resolutions of Madison and Jefferson. It was these state resolutions, secretly penned by two of our most illustrious founding statesmen, that first presented nullification as a remedy for federal usurpation of state power and the suppression of constitutionally protected individual freedoms. The Principles of ’98 played a role throughout the first six decades of the 19th century, invoked by Federalists, Democrats, Whigs, and Republicans for a variety of reasons.

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