Forget Nullification, Says u2018Conservative' Group; Stick to the Establishment's Rules

Recently by Thomas E. Woods, Jr.: The Anti-Nullifiers

Someone on 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.

The group’s 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.

First, let us start by being clear as to what nullification is…and how it is viewed by the legal community.

The “legal 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.

It [nullification] 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 u201Ccompact theoryu201D), 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.

So according 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 law.

For what the Framers actually meant by the Supremacy Clause, see my article Nullification: Answering the Objections, and Brion McClanahan’s recent book The 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 that understanding.

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.

These Resolutions 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 in 1800.

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 u201Cpower of a state to reject unconstitutional federal lawu201D and there is none now; contrary to the flyer's statement otherwise. The flyer claims that nullification is u201Cimplied in the Constitutionu201D 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 u201Cconstitutional poweru201D then one must conclude that it does not exist.

Let’s 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 a power.

Federalist supporters of the Constitution at the Virginia ratifying convention assured Virginians that they would be u201Cexoneratedu201D should the federal government attempt to impose u201Cany supplementary conditionu201D 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 ratifying convention.

The Kentucky 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 (SCOTUS).

Since Kentucky 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, u201CA Troublesome Legacy: James Madison and u2018The Principles of '98,'u201D Journal of the Early Republic 15 [1995]: 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 Nullification.)