Overview of Nullification

Thomas Woods presents a compelling argument why states are entitled to nullify unjust, unconstitutional federal mandates. I predict that the growing national debt and ideological divide across the land, will lead to one of two paths: an increasingly ugly conflict over the political, economic and cultural direction of the nation or a revitalized, tolerant federalism that respects the rights of states and communities to self governance.


Author's Corner: Tom Woods

Thursday, July 08, 2010

For those unclear on the concept, what is the basic principle of Nullification?


Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.


What are some examples of states using nullification and the tenth amendment historically?


Virginia and Kentucky raised the prospect of nullification against legislation in 1798 that made it a crime to criticize the President or Congress. They did so at a time when most judges and most states thought this was just fine and perfectly constitutional. New England states refused to comply with the execution of Jefferson’s embargo. In 1814, Daniel Webster urged the states to resist if military conscription were enacted. On numerous occasions, northern states did their best to obstruct the enforcement of the Fugitive Slave Act of 1850, aspects of which they considered unconstitutional notwithstanding the Constitution’s fugitive-slave clause. Wisconsin’s legislature passed a resolution in 1859 defending their inaction, and quoting Jefferson’s Kentucky Resolutions of 1798 word for word.

Have states used nullification more recently?


Issues relating to health care, gun ownership, and medical marijuana are perhaps the most obvious, with states either defying or prepared to defy unconstitutional federal interference in these areas. Medical marijuana is a particularly good example, since the Supreme Court ruled against it, the Justice Department is against it, and yet it still goes on. More than a dozen states allow it in direct defiance of the federal will. If the people are determined to resist a law they believe violates the Constitution and are prepared to stand up against it, the federal government may well have to back down – as it did on medical marijuana and on the REAL ID Act of 2005.


What are the historic connections between the ideology of the founding fathers and Nullification?


The War for Independence was fought over the principle of local self-government, so of course it would make no sense for Americans to turn around and establish a strong central government that would trample on local self-government. Indeed they did no such thing.


The Virginia ratifying convention of 1788 is instructive. Skeptics of the Constitution feared that it would produce a government without limits. Supporters of the Constitution assured them that the federal government would possess only those powers “expressly delegated” to it. George Nicholas, who would become the first attorney general of Kentucky, assured Virginians that if the federal government attempted to impose “any supplementary condition” upon them – that is, if it tried exercising a power beyond those expressly delegated to it – then Virginia would be “exonerated” from that measure. With this assurance Virginia barely voted to ratify the Constitution.

How do you feel the federal government is overstepping its bounds?


The federal government has inverted the system bequeathed to us by the Framers of the Constitution, in which a central government whose powers were “few and defined” (to quote James Madison) provided for the common defense of states whose powers were “numerous and indefinite” (to quote Madison again). Absurd interpretations of the general welfare, commerce, and “necessary and proper” clauses have been advanced at the various steps along the path that has taken us here. We have forfeited the one unique feature of American political life, and transformed the U.S. into just another run-of-the-mill centralized state.

What sort of federal laws do you feel should be nullified?


From a strategic point of view, I would begin with laws whose injustice is widely acknowledged. The No Child Left Behind Act is despised by libertarians, traditional conservatives, and the teachers’ unions – a very unusual combination. It is an insult to the American population to imply that they are too stupid to run their own schools according to their own priorities.

Do you feel Nullification is connected to a particular ideology?


It needn’t be. Leftists like Kirkpatrick Sale believe deeply in local self-government, while neoconservatives like Bill Kristol, with their grotesque “national greatness conservatism,” would be appalled by serious assertions of power by the states. California is considering decriminalizing marijuana, which we would more readily associate with the Left than the Right. People on Left and Right worked together in two dozen states to nullify the REAL ID Act of 2005.

It should be obvious that we need the institutional ability to say no to the federal government. According to Richard Fisher of the Dallas Federal Reserve, the U.S. government faces $100 trillion in unfunded entitlement liabilities. The system must unravel at some point. Yet the federal government goes about its oblivious way, taking on ever more obligations and racking up larger and larger deficits. The states may as well get acclimated to fending for themselves, since the day when they will have no choice but to do so cannot be more than a generation away.