Nullification: How to Resist Federal Tyranny in the 21st Century
© 2011 Thomas E. Woods, Jr
In a game of word association, chances are that ‘nullification’ would not meet with flattering replies. Nullification is a word associated with the Civil War, or the Civil Rights movement, of the southern states blocking attempts at racial equality by insisting on their own right to declare a federal law unconstitutional, and thus null and void. But nullification has a richer and nobler history than its modern critics realize; in Nullification, Tom Woods explains the legal basis of the principle, demonstrates its use throughout early American history, and points out areas in which the states have adopted it as a tool today.
Nullification’s sanction, Woods argues, rests in the little-c constitution of the United States. Though today the fifty states may seem like mere departments of the national polity, in the beginning this was not so. The united States began life not as a nation, but an agreement between thirteen, and with specific purposes. Treaties from the period enumerate the individual states, demonstrating their primacy. If not the States, who may declare a given law unconstitutional? The Supreme Court has assumed that role (‘judicial review’), but as part of the government, how can it be expected to police itself? The individual States, however, have existence without the national government, and it exists, or was supposed to have existed, as their handmaiden — not the other way around. Theirs is the right to declare the actions of Congress, the President, and the Court unconstitutional — but theirs is likewise the responsibility to create measures for frustrating the government’s knavish tricks.
This they have done, from as early as the Adams presidency til today. Nullification first came onto the scene after the Federalist congress put into effect the Alien and Sedition Acts, which made defaming the government and its officials a crime. (Defaming the government was, until the rise of baseball, the national sport, and especially loved by Jefferson, Hamilton, and their respective parties.) Straightaway governors began throwing up barriers to federal agents attempting to arrest mouthy citizens. They did the same when, during the Napoleonic Wars, President Jefferson imposed an embargo on Europe — an embargo that might have driven American trade to its knees. The reality and the threat of nullification continued to force the hands of overambitious executives. Today, legislative sabotage continues as states decriminalize marijuana use even as the federal government continues to insist it’s a no-no. Given that the US attorney general is now retreating from parts of the War on Drugs (starting with that odd habit of theirs of seizing property that has been declared guilty of participating in a crime), the principle seems just as potent.
Nullification is a small book (~165 pages, not counting the documents appended to it), but is a very worthy introduction to compact theory, in which the States are legally superior and not subordinate to the national state. It’s also a respectable attempt to rescue nullification from its historical taint, but loses some points given that Woods never squarely addresses the threatened use of it during the 1960s, maintaining only that nullification is a weapon that can be used unjustly as easily as it can be for justice. I was also hoping for other kinds of nullification to be covered (like jury nullification), but Woods focused only on formal measures by the States themselves. Altogether it’s a solid intro to the subject, and I am all for throwing wrenches into the machinery.
The Liberty Amendments, Mark Levin, all of which aim to restore to the fifty states their original power over the central government.