What Is It?

State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.

Says Who?

Says Thomas Jefferson, among other distinguished Americans. His draft of the Kentucky Resolutions of 1798 first introduced the word “nullification” into American political life, and follow-up resolutions in 1799 employed Jefferson’s formulation that “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.

But Jefferson didn’t invent the idea. Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Patrick Henry and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

The “Principles of 98,” as they came to be known, are rarely discussed in modern history lectures even though these are integral to understanding how our federal Constitution was intended to function. These are the principles of state interposition or nullification that assert that if the federal government fails to check itself through one of its three branches, then it would be up to the states to rein in the feds.

The main basis for the theory is that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers. As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy. The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries.

The man widely regarded as the “Father of the Constitution,” James Madison, described just how a federal system would work in his essay Federalist No. 51. Madison, encouraging his fellow countrymen to ratify the newly drafted Constitution, described a system of horizontal as well as vertical checks and balances between the federal and state governments — a system known as federalism. “Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison, joined by Thomas Jefferson, would later go on to expand upon this in the famous Kentucky and Virginia Resolutions of 1798. The federal government had recently passed the blatantly unconstitutional and shameful Alien and Sedition Acts to silence and intimidate political enemies. Those despicable acts were instituted by advocates of unwritten constitutional power and a more robust central government. Both Jefferson and Madison argued that the states constitutionally had the right to refuse not only to comply with such unconstitutional actions of the federal government, but also to actively prevent the feds from enforcing them within their state boundaries.

These visionaries and their resolutions gave a voice to a peaceful revolution of constitutional principles that would govern this great nation for years to come. Many states have in fact utilized state nullification to check the federal government throughout the history of our Republic. From the Fugitive Slave Act to unpopular tariffs, states did indeed nullify federal laws they found to be unconstitutional.

Nullification has started to be mentioned in the news, as states have once more started to utilize the practice to resist federal overreaching. Many states have either passed or proposed legislation or amendments to their state constitutions that nullify federal laws in the areas of firearms, medical marijuana, and healthcare, to name just a few.

What’s the Argument for It?

Here’s an extremely basic summary:

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of 13 states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power. No other arrangement makes sense. No one asks his agent whether the agent has or should have such-and-such power. In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created. James Madison explains this clearly in the famous Virginia Report of 1800.

Why Do We Need It?

As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.

Isn’t This Ancient History?

Two dozen American states nullified the REAL ID Act of 2005. More than a dozen states have successfully defied the federal government over medical marijuana. Nullification initiatives of all kinds, involving the recent health care legislation, cap and trade, and the Second Amendment are popping up everywhere.

What’s more, we’ve tried everything else. Nothing seems able to stop Leviathan’s relentless march. We need to have recourse to every mechanism of defense Thomas Jefferson bequeathed to us, not just the ones that won’t offend Katie Couric or MSNBC.

Won’t This Make the New York Times Unhappy?

More proof it’s a good idea.

Doesn’t Nullification Violate the Constitution’s Supremacy Clause?

Thomas Jefferson knew about the Supremacy Clause, it’s safe to assume. The Supremacy Clause applies to constitutional laws, not unconstitutional ones. For a full reply to this objection, see Professor Brion McClanahan.

Isn’t This Just a Smokescreen for Slavery?

Nullification was never used on behalf of slavery. As I show in Nullification, it was used against slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate. Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate). In Ableman v. Booth (1859), the Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?

How Can I Learn More?

The indispensable source for developments connected to nullification and the Tenth Amendment is TenthAmendmentCenter.com. Its Legislative Tracking page covers a variety of nullification initiatives and tracks their progress in state legislatures across the country.

My new book, Nullification: How to Resist Federal Tyranny in the 21st Century, makes the historical, constitutional, and moral case for nullification. Read a free chapter.

Be sure to read my essay “Nullification: Answering the Objections.”

And check out what happens when a Princeton professor shoots off his mouth on nullification without knowing anything about the subject.

Nullification is an important defense mechanism for a free people, with deep roots in American history – albeit American history no one is taught in school. Learn more about it, and join the cause.

- Dr. Thomas E. Woods

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Nullification: Answering the Objections

by Thomas E. Woods, Jr.

In January 2011 my book Nullification became notorious when it was linked to a bill that declared Barack Obama’s health care law unconstitutional and therefore void and of no effect in the state of Idaho. (Other states have been introducing similar bills, but Idaho grabbed the media’s attention.) Legislators had read it, the news media reported, and while Governor Butch Otter turned down a state senator’s offer of a copy, that was only because he already had one. He had read it, too.

Naturally, the smear patrol went into overdrive. Why, this is crazy talk from a bunch of “neo-Confederates” who hate America! Anyone who has observed American political life for the past 20 years could have predicted the hysterical replies down to the last syllable.

“Nullification” dates back to 1798, when James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions, respectively. There we read that the states, which created the federal government in the first place, by the very logic of what they had done must possess some kind of defense mechanism should their creation break free of the restraints they had imposed on it. Jefferson himself introduced the word “nullification” into the American political lexicon, by which he meant the indispensable power of a state to refuse to allow an unconstitutional federal law to be enforced within its borders.

Today, political decentralization is gathering steam in all parts of the country, for all sorts of reasons. I fail to see the usefulness of the term “neo-Confederate” – whatever this Orwellian neologism is supposed to mean – in describing a movement that includes California’s proposal to decriminalize marijuana, two dozen states’ refusal to abide by the REAL ID Act, and a growing laundry list of resistance movements to federal government intrusion. As states north and south, east and west, blue and red, large and small discuss the prospects for political decentralization, the Enforcers of Approved Opinion have leaped into action. Not to explain where we’re wrong, of course – we deviants are entitled at most to a few throwaway arguments that wouldn’t satisfy a third grader – but to smear and denounce anyone who strays from Allowable Opinion, which lies along that glorious continuum from Joe Biden to Mitt Romney.

Anyone who actually reads the book will discover, among many other things, that the Principles of ’98 – as these decentralist ideas came to be known – were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

When Nullification was released, here’s what I predicted would happen: “If the book’s arguments are addressed at all, they will be treated at a strictly second-grade level. (Official Left and Right agree on more than they care to admit, an unswerving commitment to nationalism being one of those things.) The rest of the so-called reply will run like this: Nullification is a secret plot to restore the southern Confederacy, and Woods himself is a sinister person with wicked intentions, before which all his fancy moral and constitutional arguments are nothing but a devious smokescreen.” (I went on to make my Interview With a Zombie video to suggest how a typical media interview on the subject might run, and mademy first video blog in response to the hysteria over Idaho.)

Since that is indeed what has happened, I’m following up with this point-by-point reply to the standard arguments I knew would be trotted out against the idea. (My replies to these claims are discussed in much greater detail in the book.)

“Nullification violates the Constitution’s Supremacy Clause.”

This may be the most foolish, ill-informed argument against nullification of all. It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism. It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

For further evidence, see Brion McClanahan.

“Nullification is unconstitutional; it nowhere appears in the Constitution.”

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” 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 Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

“The Supreme Court declared itself infallible in 1958.”

The obscure obiter dicta of Cooper v. Aaron (1958) is sometimes raised against nullification. Here the Supreme Court expressly declared its statements to have exactly the same status as the text of the Constitution itself. But no matter what absurd claims the Court makes for itself, Madison’s point above holds – the very structure of the system, and the very nature of the federal Union, logically require that the principals to the compact possess a power to examine the constitutionality of federal laws. Given that the whole argument involves who must decide such questions in the last resort, citing the Supreme Court against it begs the whole question – indeed, it should make us wonder if those who answer this way even understand the question.

“Nullification was the legal doctrine by which the Southern states defended slavery.”

This statement is as wrong as wrong can be. Nullification was never used on behalf of slavery. Why would it have been? What anti-slavery laws were there that the South would have needed to nullify?

To the contrary, nullification was used against slavery, as when northern states did everything in their power to obstruct the enforcement of the fugitive-slave laws, with the Supreme Court of Wisconsin going so far as to declare the Fugitive Slave Act of 1850 unconstitutional and void. In Ableman v. Booth (1859), the U.S. Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?

“Andrew Jackson denounced nullification.”

True, though Jackson was presumably not infallible. (Had nullification really been all about slavery, then Jackson, a slaveholder himself, should have supported it.) His proclamation concerning nullification was in fact written by his secretary of state, Edward Livingston, and that proclamation was, in turn, dismantled mercilessly – mercilessly – by Littleton Waller Tazewell.

“You must be a ‘neo-Confederate.’”

I confess I have never understood what this Orwellian agitprop term is supposed to mean, but it is surely out of place here. Jefferson Davis, president of the Confederacy, denounced nullification in his farewell address to the U.S. Senate. South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision.

Don’t expect critics of nullification to know any of this, and you won’t be disappointed.

One of the points of my book Nullification, in fact, is to demonstrate that the Principles of ’98 were not some obscure southern doctrine, but at one time or another were embraced by all sections of the country. In 1820, the Ohio legislature even passed a resolution proclaiming that the Principles of ’98 had been accepted by a majority of the American people. I do not believe there were any slaves in Ohio in 1820, or that Ohio was ever part of the Confederacy.

“James Madison spoke against the idea of nullification.”

More sophisticated opponents think they have a trump card in James Madison’s statements in 1830 to the effect that he never intended, in the Virginia Resolutions or at any other time, to suggest that a state could resist the enforcement of an unconstitutional law. Anyone who holds that he did indeed call for such a thing has merely misunderstood him. He was saying only that the states had the right to get together to protest unconstitutional laws.

This claim falls flat. In 1830 Madison did indeed say such a thing, and pretended he had never meant what everyone at the time had taken him to mean. Madison’s claim was greeted with skepticism. People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place? Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied? And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, forthcoming 2011) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the VirginiaResolutions of 1798, excerpted in my book.

The elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.

In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.

“Nullification has a ‘shameful history.’”

So we are instructed by the scholars who populate the Democratic Party of Idaho. Was it “shameful” for Jefferson and Madison to have employed the threat of nullification against the Alien and Sedition Acts of 1798? Was it “shameful” of the northern states to have employed the Principles of ’98 against the unconstitutional searches and seizures by which the federal embargo of 1807-1809 was enforced? Was it “shameful” for Daniel Webster, as well as the legislature of Connecticut, to have urged the states to protect their citizens from overreaching federal authority should Washington attempt military conscription during the War of 1812? Was it “shameful” for the northern states to do everything in their power to obstruct the enforcement of the fugitive-slave laws (whose odious provisions they did not believe were automatically justified merely on account of the fugitive-slave clause)? Was it “shameful” when the Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional and void, citing the Kentucky Resolutions of 1798 and 1799 in the process?

May I take a wild guess that no Democrat in the Idaho legislature knows any of this history?

The “shameful history” remark is surely a reference to southern resistance to the civil rights movement, in which the language of nullification was indeed employed. The implication is 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 tothe 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 decentralism in the past.

Supporters of nullification do not hold 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 objection – why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again – never seems to be directed against centralized government itself, particularly the megastates of the nationalistic twentieth century. I rather doubt nullification critics would turn this argument against themselves – by saying, for instance, “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 (including unfunded liabilities) well in excess of $100 trillion. In light of this record, what intellectual and moral pygmy would urge nationalism or the centralized modern state as the solution to our problems?”

In fact, anyone who argues that centralized states have been wonderful, progressive institutions when it comes to the minorities within their borders might consult the Armenians in Turkey, the Ukrainians in the Soviet Union, the Jews in Germany, the Asians in Uganda, or a whole host of other peoples who might have rather a different opinion.

“Nullification would be chaotic.”

It is far more likely that states will be too timid to employ nullification. But the more significant point is this: if the various states should have different policies, so what? That is precisely what the United States was supposed to look like. As usual, alleged supporters of “diversity” are the ones who most insist on national uniformity. It says quite a bit about what people are learning in school that they are terrified at the prospect that their country might actually be organized the way Americans were originally assured it would be. Local self-government was what the American Revolution was fought over, yet we’re told this very principle, and the defense mechanisms necessary to preserve it, are unthinkable.

Part of the reason the idea of nullification elicits such a visceral response from establishment opinion is that most people have unthinkingly absorbed the logic of the modern state, whereby a single, irresistible authority issuing infallible commands is the only way society can be organized. Most people do not subject their unstated assumptions to close scrutiny, particularly since the more deeply embedded the assumption, the less people are aware it exists. And it is this modern assumption, dating back to Thomas Hobbes, that – whether people realize it or not – lies at the root of nearly everyone’s political thought. Not only is this assumption false, but (as I discuss in the book) the modern state to which it gave rise has been the most irresponsible and even lethal institution in history, racking up debts and carrying out atrocities that the decentralized polities that preceded them could scarcely have imagined. Why it should be given the moral benefit of the doubt, to the point that all skeptics are to be viciously denounced, is unclear.

“The compact theory may apply to the first 13 states, but since all the other states were created by the federal government, we cannot describe these later states as building blocks of the Union in the same sense.”

The Idaho attorney general’s office tried making this argument against the Idaho health-care nullification bill. Superficially plausible, the argument amounts to a gross misunderstanding of the American system. Were the Idaho attorney general correct, American states would not be states at all but provinces.

The argument of the Idaho attorney general’s office, in fact, amounts to precisely the Old World view of the nature of the state and the people that Americans fled Europe to escape. The American position has always been that an American state is created by the people, not the federal government. Jefferson himself amplified this point in the controversy over the admission of Missouri. The people of Missouri had drafted a constitution and were applying for admission to the Union. Were they not admitted, Jefferson told them, they would be an independent state. In other words, their statehood derived from their sovereign people and its drafting of a constitution, not the approval of the federal government.

“The Civil War settled this.”

The Civil War was not fought over nullification, and as I’ve said above, at the time of the war it was the northern states that had much more recently been engaged in nullification. The legitimacy of nullification involves a philosophical argument, and philosophical arguments are not – at least to reasonable people – decided one way or the other by violence. No one would say, when confronted with the plight of the Plains Indians, “Didn’t the U.S. Army settle that?” If the arguments for nullification make sense, and they do, that is what matters. Reality is what it is. The compact theory, from which nullification is derived, does describe U.S. history. There is no way to evade that brute fact.

My primary intention in writing Nullification was to rescuscitate portions of American history which, having proven inconvenient to the regime in Washington, had slipped down the Orwellian memory hole. I wanted Americans to realize that illustrious figures from their country’s past posed questions about the most desirable form of political organization – questions that today one is written out of polite society for asking. I wanted to make a case, backed by overwhelming historical evidence, that the inhumane system whereby a single city hands down infallible dictates to 309 million people is not a fated existence. Jefferson and others proposed an alternative, one we might wish to revisit in light of how obviously dysfunctional the present system has become. Before this information can be put to much immediate use there is a good deal of educational groundwork to be laid. I intended the book to be a first step along the road back to sanity.

Old-style, “small-is-beautiful” progressives would have sympathized with this view, as New Left historian William Appleman Williams did. The commissars of approved opinion who pass as “progressives” today cannot even take the trouble to understand it.

Afterword: The problem with Jefferson’s position is not that it was too “extreme,” but that if anything it was too timid. Should you want something more challenging still, read Lysander Spooner.

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The Right To Nullify This Government

Every couple of years the same drearily predictable charade repeats itself. This time we’re really going to limit government! Or so they tell us. We on the Right then dutifully compose our letters to the editor, attend rallies, and vote for candidates without whom, we are breathlessly assured, we shall all revert instantly to barbarism. And no matter who wins, the federal government grows and grows. The Right gets a bunch of pretty speeches, and the Left gets the victories.

The passive approach of crossing our fingers and hoping Washington will follow the Constitution has not worked. The only surprising thing about it is that anyone could have expected it to work in the first place. It is long past time for those of us who want to confine the federal government to its constitutional limits to try something different.

The time has come to revisit nullification, the quintessentially American mode of resistance against federal lawlessness that Thomas Jefferson urged as an essential ingredient of our political system. In the Kentucky Resolutions of 1798, Jefferson insisted that the states needed a way to defend themselves against unconstitutional exercises of power by the federal government. Jefferson’s fear was that if the federal government had a monopoly on defining the scope of its own powers, it would be constantly discovering new ones. Likewise, James Madison urged in the Virginia Resolutions of 1798 that the states were “duty bound to resist” when the federal government violated the Constitution. (The reader will not be surprised to learn that Bill Clinton held no White House soiree in honor of the two hundredth anniversary of these documents in 1998.)

These principles were used for honorable purposes throughout antebellum American history. Virginia and Kentucky used them on behalf of free speech. The New England states employed them against unconstitutional searches and seizures. Numerous northern states used them against fugitive slave laws, provisions of which they considered unconstitutional notwithstanding the Constitution’s fugitive-slave clause. More than six decades after Jefferson penned the immortal words of the Kentucky Resolutions, the legislature of Wisconsin quoted them word for word in defense of its defiance of such laws.

Do American schoolchildren read about any of this? The question answers itself. They are about as likely to read that I, Tom Woods, am the king of England.

But all of a sudden, out of the clear blue, nullification is back. Fiscal conservatives and civil libertarians joined hands in 2005 to oppose the REAL ID Act, which involved the centralization and standardization of identification procedures. They had no idea how successful they would be. Two dozen states pledged to defy the law. Stung by this degree of resistance, the federal government gave up trying to enforce the Act.

Now, states are banding together to devise resistance measures against Obamacare, cap and trade, and a whole raft of constitutionally offensive legislation. Several states have already instituted Firearms Freedom Acts, which pledge the state to prevent the enforcement of federal gun regulations when the guns in question have never entered interstate commerce. (Color me skeptical that the recent Supreme Court decision means Americans’ Second Amendment rights are safe forever.)

So far, most conservative radio and television hosts have shied away from the issue. That’s a shame, to be sure, but it doesn’t change much. The Tea Party folks are going to nullify with or without them. Within six months these same media personalities will be huffing and puffing to catch up with what has been going on right under their noses.

But you, dear reader, ought to get in on the ground floor. The Tenth Amendment Center, for example, is sponsoring a tour of America called Nullify Now! (NullifyNow.com), which will bring these important ideas to major American cities and force them back into the American political discussion where they belong. My new book, Nullification: How to Resist Federal Tyranny in the 21st Century, gives you all the ammunition you need to understand and defend nullification as an essential defense mechanism for a free people.

And my “Interview with a Zombie” YouTube video shows you how the mainstream media will handle the issue, and how we should respond.

The rebirth of nullification is not welcome news to everyone. MSNBC and the New York Times do not want us to say or do these things. They like the situation just the way it is: we make lots of noise, and they rack up the victories. They are happy if we persist in the same failed and flawed strategy that has gotten us exactly nowhere. I for one would prefer not to give them the satisfaction.

It’s fine to hold conferences, write letters to the editor, and sign petitions. But at some point it becomes morally (and practically) necessary to do more than just wring our hands about the behavior of the federal government. At some point we in our states must say: we are not going to do it. Never did I suspect that the American people would grow angry and politically aware enough to put these great principles back on the table. Ideas I once covered as a historian I am now discussing as a commentator on current events. This is the healthiest development in American politics I have seen in my life. Everyone reading these words owes it to the cause of freedom to be a part of it. We have been played for fools long enough.

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What Constitutionalism Means

The National Review touts itself as a conservative publication. It consistently espouses what it considers right-of-center policy positions, as well as promoting the popularity of “conservative” candidates.

There is little doubt that given the thickness of the fog of hubris that permeates every office of that periodical that it sincerely believes that its positions are consistent with the Constitution, as well. That is to say, were one to ask the journalists who write for the National Review if they were constitutionalists, they would likely respond, to a man, in the affirmative.

Ramesh Ponnuru is a senior editor at National Review. Ponnuru is an American of Indian descent, raised in the suburbs of Kansas City and educated at Princeton. He is a regular contributor to such national publications as the Washington Post, the New York Times, and Time magazine.

In the September 19, 2011 issue of National Review, Ponnuru offers an article entitled “What Constitutionalism Means.” In this thoughtful piece, Ponnuru contrasts the “liberal” reaction to Texas Governor Rick Perry’s brand of constitutionalism with his own interpretation of the proper regard for the timeless principles that undergird our founding charter.

To his credit, Ponnuru rightly ascribes much of the “Progressive” attitude toward the Constitution to an “impatience with the whole constitutional scheme of limited government,” as well as their favorite method of undermining our liberties, that is “to change the Constitution without going to the trouble of formally amending it.”

Signing statements, executive orders, federal judges who disregard the Constitution and legislate from the bench, regulations promulgated by the various executive branch agencies and then afforded the effect of law, and laws passed in violation of the enumerated powers granted to Congress all combine to make dizzying end runs around the Constitution. These tactics provide cover for the liberty-eroding strategy that is the modus operandi of every foe of freedom.

Ponnuru chronicles a few recent examples of this surreptitious strategy:

[R]ecall how liberals reacted to the difficulties they encountered in enacting Obamacare. The political system was said to be broken; complaints were leveled against the undemocratic Senate. If you doubt the second point, recall that after the ERA failed, liberals achieved almost everything they had wanted from it through the courts. There is nothing that liberal legal academics and activists refuse in principle to read into the Constitution because the ERA is absent from it.

The Supreme Court has amended the Constitution hundreds of times, in ways large and small, by reinterpreting its provisions, almost always to serve progressive ends.

How did we get to this perilous position? Are we somehow to blame for the severing of the fetters on federal power forged by our Founders? Have we unwittingly acquiesced to the unconstitutional growth of the federal government and the reduction of the states to mere appendages thereof? Ponnuru suggests that such is possible:

In each case, Americans had spent decades living under the relevant constitutional provisions without anyone’s imagining that they commanded what the Court now says they command. It is always possible, of course, that earlier Americans, by ratifying those provisions, committed themselves to principles that would have future applications they could not imagine.

Ponnuru suggests that “conservatives” do not behave likewise. That is to say, they do not seek ways to circumvent the Constitution in order to officially establish their version of right and wrong.

Unfortunately, the facts belie his assertion. In recent years, so-called “conservatives” have spent as much time chipping away at the walls erected around federal power as have their “liberal” counterparts.

George W. Bush, for example, suspended habeus corpus, initiated at least two illegal foreign wars, increased the size of the federal government, and perhaps most egregiously of all, he forcefully fought for the enactment of the Patriot Act, a package of measures that have done more to shred the Constitution than any “law” passed in recent memory.

Perhaps the discrepancy between Ponnuru’s notion of the “conservative” respect for the Constitution and the “liberal” disdain for it is to be found in the definition of constitutionalism that he presumes. Says Ponnuru:

Constitutionalism, in short, is simply a special case of respect for the rule of law: the case in which the law in question is the supreme law of the land. The rule of law demands that those who apply the law — be they judges, sheriffs, presidents, or governors — apply it faithfully. If those officials can change the meaning of the words, there is no point to having a written law.

This is mostly correct. The Constitution unquestionably nominates itself as the supreme law of the land. Article VI of the U.S. Constitution mandates that:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

The phrase which Ponnuru, conservatives, and liberals all overlook is “in pursuance thereof.” Any bill proposed and passed by Congress that oversteps the boundaries set by the Constitution around its legislative power is null, void, and of no legal effect. The premise upon which the rule of law is based is that in the United States of America, there is no law outside of the Constitution. The Constitution is supreme insofar as its enumeration of limited powers are rigidly adhered to each and every time.

Admirably, Ponnuru is on the right track when he declares that “constitutionalism rules out certain courses of action. It means that it is never acceptable for a congressman to vote for unconstitutional, or even doubtfully constitutional, legislation on the theory that the courts will sort it out.”

Next, Ponnuru addresses the reasons for which Americans should hold the Constitution sacrosanct and willingly hew to its provisions.

The fact that the Constitution is the law is not by itself sufficient reason to obey it. If it were radically unjust, we would have no such obligation; resistance to it, even on the part of officials exercising power under it, would in some cases be morally obligatory. Of course, and luckily, our Constitution is far better than that. But conservatives’ reverence for most of the content of our Constitution is the least important feature of constitutionalism, which is properly understood as the willingness to obey the Constitution, including those parts of it we do not revere.

It is easy to see from the foregoing that Ponnuru intends to demand that every amendment be revered equally and without analysis of the amendment according to the twin principles of republicanism and federalism upon which our general government is built.

For example, Ponnuru rightly reasons that some of the changes made to the Constitution are done “in order to restore its proper meaning.” Particularly, the National Review senior editor points to a few proposed amendments advocated by Rick Perry.

He [Perry] has spoken favorably about amendments to end the lifetime tenure of federal judges, to allow super-majorities of Congress to overturn Supreme Court decisions, to repeal the Sixteenth and Seventeenth Amendments (which established, respectively, the income tax and the direct election of senators), to limit federal spending, to define marriage in American law as the union of a man and a woman, and to prohibit abortion.

To lump all of these Perry-promoted alterations to our national charter is intellectually lazy and constitutionally unsound.

Informed constitutionalists will universally agree that repealing the 16th and 17th Amendments would be in furtherance of the original intent and structure of our Constitution. In that document, there is neither an enumeration of the power to impose an income tax nor to popularly elect Senators.

Likewise, however, there is nothing “originalist” in the alteration of the terms of office for federal judge or in the creation of “supermajorities” of Congress to nullify Supreme Court decisions. These two measures seem to excuse a flaccid congress and electorate. If we, the people, want to “overturn” Supreme Court decisions, we needn’t turn to Congress. There is already a sound principle of constitutionalism that provides a path toward that noble goal: nullification.

In a nutshell, nullification is the principle that each state retains the right to nullify, or invalidate, any statute passed by the national government that the state regards as unconstitutional. This powerful weapon against tyranny is in the arsenal of every state. As the sovereign states formed the union, and as creators of that compact, they hold the ultimate authority as to the limits of the power of the central government to enact laws that are to bind the states and the people. That is to say, may the creation be more powerful than the creator?

While Ponnuru wrote nearly 2,000 words ostensibly to define “constitutionalism,” his essay ends with praise of Perry, suggesting that the ultimate aim of the article is to subtly shill for Rick Perry’s nomination as the Republican candidate for President. A goal not so noble, especially when it’s on behalf of a candidate with a questionable record and a well-chronicled proclivity for behaving unconstitutionally.

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