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Thomas E. Woods, Jr., is the New York Times bestselling author of 11 books, including The Politically Incorrect Guide to American History and Meltdown (on the financial crisis). A senior fellow of the Ludwig von Mises Institute, Woods has appeared on MSNBC, CNBC, FOX News, FOX Business, C-SPAN, Bloomberg Television, and hundreds of radio programs... (Read More)



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Connecticut AG Candidate: I Favor Nullification

12th October 2010      by: Tom Woods     

Martha Dean, the Republican nominee for attorney general in Connecticut, repeated her support for state nullification of unconstitutional federal laws in last night’s debate.  She opened up my book Nullification and quoted from Jonathan Trumbull, the nineteenth-century Connecticut governor who declared: “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”

I won’t leave you in suspense regarding the reaction of her opponent, George Jepsen.  Nullification, he said, is an outdated concept that led to the Civil War and “has no place in our discussion today…. The U.S. Supreme Court is the final arbitrator with what is constitutional and not constitutional. It’s not for the states to decide.”

One benefit of being a commissar is that you need never debate truly important matters.  These can simply be portrayed as “extreme,” “outdated,” and having “no place in our discussion.”  That’s a lot easier than openly pleading ignorance.

Since I wrote a whole book laying out the evidence against this conventional, unexamined claim, I won’t go into that here except to draw an analogy, courtesy of my friend Lou Fernandez.  If you and I give a third person (call him Person C) a limited power of attorney to help govern our affairs, and that person oversteps the boundaries outlined in the contract we signed, who gets to decide if Person C is in violation of the contract? Is it Person C himself?  Or is it you and I, the people who wrote and signed the limited power of attorney in the first place?  Likewise, the states, as the principals to the constitutional compact, have a far better logical claim to be the judges of constitutionality than their agent, the federal government.

As for nullification causing the Civil War, that’s pretty rich.  What, pray tell, would the South have had to nullify under the unamended Constitution?  Now I suppose there is one way in which nullification led to the southern secession (which is not the same thing as saying it led to the war), but it will surprise George Jepsen.  South Carolina’s ordinance of secession complains that the North is doing too much nullifying, and that the South is sick of it.  In particular, the North was interfering with the enforcement of the Fugitive Slave Act of 1850.  The Wisconsin Supreme Court got so uppity that it stood up to George Jepsen’s heroes, the U.S. Supreme Court, and declared the Act unconstitutional (the Constitution’s fugitive-slave clause notwithstanding).  So I suppose in that sense nullification may have helped provoke the southern secession, but I doubt that’s what Jepsen meant by his remark.

Nullification was used throughout American history on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and the fugitive slave acts.  Jepsen doesn’t mention this.  No one ever does.  We must stick to the narrative: the states are stupid and backward, the federal government is a progressive force, and anyone skeptical of this version of events belongs on a watch list.

Jepsen does mention the use of nullification rhetoric in Arkansas to block school desegregation, the implication being that Jeffersonian decentralism is forever discredited because states have behaved in ways most Americans find grotesque.  They are states, after all, so we should not be shocked when their behavior offends us.  But this is apples and oranges.  This outcome was possible only at a time when blacks had difficulty exercising voting rights, a situation that no longer obtains.  Things have changed since Birmingham 1963 in other ways as well.  The demographic trends of the past three decades make that clear enough, as blacks have moved in substantial numbers to the South, the only section of the country where a majority of blacks polled say they are treated fairly.  It is an injustice to the people of the South, as well as an exercise in emotional hypochondria, to believe the states are on the verge of restoring segregation if only given the chance.  I mean, really.

By exactly the same reasoning, incidentally, any crime by any national government anywhere would immediately justify a world government.  Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under such a system in the past.

Moreover, the argument is not that the federal government is bad but the state governments are infallible.  The state governments are rotten, too (which is why we may as well put them to some good use by employing them on behalf of resistance to the federal government).  We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction?  There is a strong argument to be made that it was precisely the decentralization of power in Europe that made possible the development of liberty there.

This argument — why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again –  is never used against the institution of the state itself, particularly the megastates of the nationalistic twentieth century.  I rather doubt Jepsen would say, “Centralized governments gave us hundreds of millions of deaths, thanks to total war, genocide, and totalitarian revolutions.  In the U.S. we can point to the incarceration of hundreds of thousands of Japanese and a horrendously murderous military-industrial-congressional complex, among other enormities.  Our federal government is so remote from the people that it has managed to rack up debts (included unfunded liabilities) well in excess of $100 trillion.  This is a joke.  In light of this record, what intellectual and moral pygmy would urge nationalism, that outdated doctrine that led to World War II, as the solution to our problems?”

The most humane system, thinks George Jepsen, is one in which 300 million people are ruled from one city, and in which that one city gets to decide for itself whether it’s staying limited to its original charter.  This is the unexamined premise that informs our entire political spectrum.

Good for Martha Dean.  We need a lot more discussion of ideas that “have no place” in the regime’s world.

Unlearn the Propaganda!

  • AB

    Dr. Woods,

    If the Constitution already restrains federal power and there isn’t any clause stating that states can nullify federal laws as you have admitted, aren’t you assuming that the states have a power that the Constitution doesn’t grant to them?

  • http://tomwoods.com Tom Woods

    The Constitution doesn’t grant power to the states. It’s the other way around. Also, I have written a book on this, so you can expect a lengthier explanation and defense of these ideas there.

  • AB

    Dr. Woods,

    The Constitution restricts the powers of the federal government AND the states. Article IV states that the state governments must respect the public debt of the federal government. Article I Section 10 says that states cannot enter into compacts with one another, must submit to federal regulation of their economic activity, and cannot violate private contracts. The federal government has the right to prevent states from discriminating against residents of other states as well.

    The Tenth Amendment that you frequently cite states that powers not granted to the federal government “shall remain reserved to the states, respectively, or to the people”. If the people grant through their own sovereignty the federal government the power to expand regulation of commerce as recent legislation has done, doesn’t that override any state opposition? Not all people oppose the recent legislation and many do in fact support it.

    I’ve read your book. You did a good job in presenting arguments in favor of nullification, but I don’t find the case for it very convincing.

  • Matthew Gayle

    I think it is just awesome to see people that are running for office even declaring their belief in the use of nullification! I hope that many more will follow her lead!

  • http://tomwoods.com Tom Woods

    This is a misconception. The Constitution’s restraints on the states derive from the states’ voluntary choice to refrain from exercising sovereign powers. Where else would a previously nonexistent federal government have derived the authority to restrain them?

    My point, simply, is that because the powers of the states are “numerous and indefinite,” we do not need to look for express authorizations and permissions in the constitutional text.

  • AB

    Dr Woods,

    “Where else would a previously nonexistent federal government have derived the authority to restrain them?”

    The simple answer is the people. That’s why only nine of the states were required to ratify the Constitution before it could first go into effect even though it was sent for the states to ratify. If the states were the sole referees of the divison of powers, how do you explain the fact that not all states have to ratify an amendment before it becomes part of the Constitution? The people act in their capacity as sovereign citizens to pass laws and grant power to the state and central governments. A state simply cannot nullify or leave the Union just because it doesn’t like a law. If it is a law that is national in issue such as slavery, then it has to be decided by national means, which it was.

    Nullification rests on the concept that the state is sovereign over the people. Otherwise, how could one justify opposition by state governments to a federal law that many if not most people support in most of its aspects?

  • http://tomwoods.com Tom Woods

    Did you really read chapter 4 of the book?

  • AB

    Dr. Woods,

    Yes I have. I simply don’t find the argument that the states have the right to nullify federal laws, which by definition cover th whole country, very convincing since by definition they are national in scope. If you want to get rid of the health care law, simply repeal it.

  • http://tomwoods.com Tom Woods

    Chapter 4 answers your comment #5; the only necessary supplement would be that the states voluntarily chose to submit themselves to these procedural rules in the first place. Our argument is not going to bear fruit, since your case — at least as laid out here — consists of a series of fairly conventional assertions. I don’t find your assertions — e.g., “national issues are national, so the states can’t nullify” — particularly helpful, so I suppose we are at an impasse.

  • AB

    I admire your work. In fact, I think the argument for secession as you laid out in the Politically Incorrect Guide to American History is interesting. In fact, I think that nullification would be an effective tool, but only if there wasn’t a permanent national government and only a federation such as the one before the present Constitution was initiated.

    Will you write a book about the Articles of Confederation? That might solve our problem.

  • Jim from Anaheim

    The 10th Amendment is a clarifying statement as are all elements of the BoR. In Federalist 84, Hamilton even argued against the BoR on grounds that it was unnecessary and dangerous since it would lead people to believe the federal government had powers not granted to it by the Constitution.

    I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

    The compromise was to include the 9th and 10th amendments to make it clear that power was restricted and the BoR was not the guarantor of rights.

    Rights left to the state or retained by the people does not include a right to exercise force over other people. One state doesn’t have the right to invade another state nor does one group of people have the right to force another group into an arrangement not voluntarily agreed upon because the states have a right not to be invaded by other states and people have a right to their own personage free from involuntary servitude.

  • CK

    The shock and outrage needs to be turned around on these guys by asking “wouldn’t you nullify the Fugitive Slave Act?”

  • John Giles

    Tom, your analogy of limited power of attorney is a good one that you should continue to use. It is quite easily grasped.

  • Joseph from Tustin

    AB,

    I’ll defer to the previous arguments for their constitutional defense of the power of nullification by the states. Instead, I will try illuminate argument of nullification by way of natural rights. First let’s examine your usage of the phrase “the people:” In your disagreement with the nullification issue, you take the premise that nullification is “the concept that the state is sovereign over the people.” Implicitly it seems you hold that “the people” and the federal government are party to the same suit so that this argument concerns “The state” v. “The Federal government” and “the people.” But what constitutes “the people?” A majority of the population? A plurality of states against another? The strongest of the two political parties? The most vocal of the Washington lobbyists? If in your estimation “the people” is a least 51% of the people of the country according to the Gallup poll who whether on whim or by circumstance can dictate whether we draft our citizens for war then the idea of a “state” constituting 10% of the population obstructing the will of “the people” would be entirely ludicrous. Then again, the idea of drafting among all the population for war is way out ther, so far removed from the proposition of a univeral health care for the good of “the people.” Perhaps. But the underlying premise of an all powerful “the people”-clause able to undermine the actions, desires or determinations of tne local family unit is there. I’ve made it a point to put quotes around “the people” as one must strongly consider its meaning before any fruitful discussion about nullification can take place. Shall “the people” be a semi-homogenous group able to homogenize itself into one flavor? Or can we make an allowance for ourselves and abstain from an action that would sour our life? Indeed this is what I mean by natural right: that we have the right to our own self-determination if it does not infringe on the life or property of another. So let us repose the question again: Shall “the state” be sovereign over “the people?” If in this usage of nullification we mean that “the people” are those individuals with the right to determine their own destinies without interference from an outside party then the answer is NO. If however we take that “the people” are that whimsical majority that would march along like lemmings over a cliff, then those minorities that make the constituents of “the state” would have the priori right to resist the lemming-peoples’ subjugation or, in otherwords, be sovereign over their own livelihoods.

    For those in favor of a strong federal government it ultimately comes down to this: do you favor security over freedom? And lest you’ve made up your mind, remember this admonition from Benjamin Franklin: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” This quote, whether consciously or not, has probably informed most interpretations of The Constitution. But it seems to me that tradition leans forward in favor of liberty, otherwise we’d still have security under the auspices of HRM taxation.

  • NeilBJ

    AB said:
    If you want to get rid of the health care law, simply repeal it.

    It’s not that simple. The health care law is unconstitutional to begin with and should not have been passed in the first place (as are many other laws). It was passed by members of Congress and signed by the President, all of whom swore to uphold the Constitution. (The fact that our representatives pass unconstitutional laws, in spite of their oath to uphold the Constitution, is the subject for another debate.)

    If a clearly unconstitutional law is passed, the repeal of such a law gives credence to the idea that the law was constitutional in the first place.

    What we need is a method of nullifying unconstitutional laws that does not involve the federal government, which clearly should not have the authority to determine the limits of its own powers.

  • JP

    Martha Dean is pretty good on a range of issues. She’s not Ron Paul, but she’s at least on par with Peter Schiff and could probably do more good as an AG than Schiff could have as a Senator.

    Her web site has some papers she wrote back in late 2001, one of which deals with the predicted financial costs of the then upcoming War on Terror (it doesn’t address the causes). She acknowledges that national defense is a legitimate purpose of government and makes one suggestion as to how to pay for it: “One of the programs that could be shut down immediately is the government’s ill-conceived “war on drugs.”

    In a follow up paper, someone had apparently complained that she didn’t take into account the economic stimulus effect of war and she gives a textbook lesson on the Broken Window Fallacy.

    In another article she argued against the government takeover of airport security.

    In another article, arguing against group rights and in favor of individual rights, she complains “we have let those who would compromise freedom control the civil rights agenda.”

    In the 9/23 debate she said she would not go after Craigslist over prostitution, would not have gone after Microsoft, nor would she have gone after the tobacco companies. She has promised to join the suit over Obamacare. She‘s also said that if ever in the position to do so, she would push to eliminate the state income tax.

    I once asked a US Congressional candidate if he would have tried to impeach those members of the Supreme Court who voted in the majority of the Kelo eminent domain case and out of the corner of my eye I saw Martha Dean grinning ear to ear and nodding ‘yes’.

    If we have to have an AG, she’s almost perfect. The one major disagreement I have with her is that she said she would not take any action to enforce wages owed to illegal immigrants. That seems a bit out of character and I almost wonder if she misunderstood the question. But that issue aside, I’m amazed that she managed to convince the Republican Party to nominate her at all, let alone with such an overwhelming majority.

  • http://www.washingtonreb.com Walking Horse

    I agree with people who treat the Constitution as a contract. The signatories were the States. The Federal government, all three branches, are creatures of that contract. To imagine that an entity created by a contract is empowered to determine if the contract is being satisfied is odd on its face. If the contract is breached, the States are the injured parties, and the ultimate determinants of whether the contract is being satisfied. That this is not spelled out explicitly in the contract is an admission on the Founders’ part that this is outside the ken of the Constitution and by inference, the Federal government.

  • http://subluminal.wordpress.com Jim McCusker

    Tom, the arguments you make about nullification specifically apply to a confederation, but not to a federation. Wikipedia has a pretty good discussion of the distinction: http://en.wikipedia.org/wiki/Federation

    I find it interesting that this is a recurring pattern on these sorts of issues: someone claims that X is unconstitutional, but no, it’s actually perfectly constitutional. When examined more closely, X would have been unconstitutional under the Articles of Confederation of the CSA.

  • http://tomwoods.com Tom Woods

    Jim, as I explain in the book, this is a distinction without a difference. Political sovereignty can no more be alienated than the human will can. If the peoples of the states hold the sovereign power, they can never permanently alienate it. Any larger entity they join is always — regardless of what that entity may tell them — voluntary, inasmuch as the principals must still hold the sovereign power. Jefferson held this view, as did St. George Tucker, whose commentaries on Blackstone were read by all American gentlemen. Emmerich de Vattel, the great international lawyer, said the same thing. Sovereign states in a larger entity may voluntarily place constraints on themselves for the sake of a perceived greater good, but that doesn’t make them less sovereign than they were before joining.

  • http://subluminal.wordpress.com Jim McCusker

    Tim, a fundamental principle of government is that withholding some rights (like murder, slavery, for biggies) from people results in more rights being available to the people as a whole. The ability to nullify these sorts of agreements abrogates participation in that contract. If I don’t like a law and think it shouldn’t exist, that doesn’t mean I can just nullify it. I still have to follow it (or face the consequences) and try to convince others that the law must be changed. The same is true of states in a federation. This is a founding principle of the US, and was a major reason that the US Articles of Confederation failed, and we developed the Constitution in the first place.

  • http://tomwoods.com Tom Woods

    Jim, that doesn’t answer my objection at all; much less does it account for why key American legal theorists took just the opposite view. Also, there is no “right” to commit murder or to enslave; it is a misunderstanding of social contract theory, at least in the Lockean version familiar to Americans, to formulate it this way. The rights we delegate to a government are rights we would enjoy in the state of nature, except only precariously — for instance, self-defense and adjudication services. (Note: I do not believe in this theory, but I think it should be stated correctly.)

    Again, I’ve written a book on this, so I’m sure you’ll understand that I prefer not to rehash what I have said at great length elsewhere. Chapter 4 is particularly on point with regard to your objections.

  • Jim

    Unfortunately I haven’t read your book on nullification, however, I have read many books that talk about it.
    Jury nullification is a process agreed by many folks to nullify a law. Juries have powers over and above the judge and prosecutors in a trial and do have the right to nullify that law if they believe it’s unjust, et cetra.
    What is your take on the Jury nullification?

    Thanks

    Jim

  • http://tomwoods.com Tom Woods

    The Founding Fathers believed in jury nullification, as I show in my 33 Questions book, and much injustice could be avoided if it were used.



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