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Thanks Washington, But We’ll Do It Ourselves

I have a new hero. His name is Thomas Woods and he’s a Mises Institute senior fellow who just wrote a book on “nullification”, the act by which a state refuses to obey an unconstitutional federal mandate. According to Woods, the Founders saw nullification as not only a right of the states but a duty, and expected that states would periodically have to slap Washington’s hand — and maybe shoot a few of its soldiers — to enforce the Constitution.

Here’s an excerpt from an article in which Woods schools a Slate editor on the concept:

I happen to be the author of a new book making the historical and moral case for state nullification of unconstitutional federal laws and urging that it be resuscitated as a live option, given the complete failure of all other efforts to limit the federal government. Weisberg will have none of this crazy talk, of course. No one consulted him before advocating this, and since none of his friends at Newsweek or the New York Times have given nullification the seal of approval as an officially permitted position, we are breaking all codes of gentlemanly conduct by speaking about it anyway.

In any case, says Weisberg, we all know nullification was “settled” in 1819, with McCulloch v. Maryland. McCulloch held that when the federal government exercised a constitutional power the states could not interfere with it. That of course begs rather than settles the question, since a nullifying state contends precisely that the federal government is not exercising a constitutional power. But in Weisberg’s world, everyone leaped to accept John Marshall’s ridiculous and unsupportable nationalist rendering of American history, a rendering completely at odds with what people had been told about the nature of the Union at many of the state ratifying conventions, and indeed at odds with the most obvious facts of American history. Back on planet Earth, states continued to resist the national bank for years afterward, “settled law” to the contrary notwithstanding, until its charter went unrenewed in the 1830s. Spencer Roane, the chief judge of Virginia’s Supreme Court, completely dismantled Marshall and his reasoning in a series of unrelenting critiques. James Madison said Virginia would never have ratified the Constitution had anyone thought the federal government’s powers to be as expansive as John Marshall was proposing, given that exactly the opposite view of the new government was expressly promised to the people at the Richmond ratifying convention (where Marshall sat mute instead of correcting this impression). Thomas Jefferson wrote the following year: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated republic. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

Oh, and I suppose someone forgot to tell Wisconsin it was violating “settled law” when it declared the Fugitive Slave Act of 1850 unconstitutional in 1859 and acted accordingly.

For Slate, a “settled” issue is simply one they don’t want discussed. Normal people consider an issue “settled” when the arguments for both sides have been exhaustively heard, and with reason as the arbiter one side emerges triumphant. That has not occurred in this case. Contrary to popular belief, Daniel Webster was judged the loser of the Webster-Hayne debate at the time. Littleton Waller Tazewell crushed Andrew Jackson’s convoluted proclamation on nullification, as I note in my book, but no one hears or knows about this exchange today. Nationalism is the best way to organize human society, students are told, and that’s that. Anyone who thinks otherwise is too perverse to be worth mentioning.

“The tricorn hats and powder horns carried by Revolutionary re-enactors,” Weisberg continues, “point to the most extreme libertarian view: a Constitutional fundamentalism that would limit the federal government to the exercise of enumerated powers.” That’s not even close to “the most extreme libertarian view,” of course, not that Weisberg actually knows anything about libertarianism, but it does happen to be what one state ratifying convention after another was told would be the guiding rule of constitutional interpretation. This is now “wacko,” fashionable opinion at Slate having supplanted the state ratifying conventions as the arbiters of matters constitutional. This would also make Thomas Jefferson “wacko,” but Weisberg prefers (surprise!) not to mention Jefferson.

What makes nullification so much fun is (1) that opponents of the idea almost invariably know none of the relevant history, so they find themselves reduced to stomping their feet and shouting (or trying to win arguments by dumb-guy smears); and (2) the sheer horror of the political and media classes when confronted by people who refuse to be force-fed the two feckless alternatives that Slate and the rest of the establishment want them to choose from.

You see why nullification is such a great addition to the debate over what we’ll rebuild from the fiat currency rubble. For more, see Woods’ Financial Sense interview and zombie video.

And now, armed with an awareness of the concept, check out this article from today’s Wall Street Journal, written by a group of former Drug Enforcement Administration officials:

California Pot Initiative: Don’t Forget About Federal Law

As former administrators of the U.S. Drug Enforcement Administration, we believe that Proposition 19 to legalize marijuana in California is a grave misstep. The ballot measure is being promoted by legalization lobbyists on the grounds that taxes raised from the sale of the drug will help the state with its financial crises. This simply isn’t true.

That’s because if passed by voters in November, Proposition 19—also known as the Regulate, Control and Tax Cannabis Act of 2010—will be in direct conflict with the Controlled Substances Act (CSA), a federal law that makes the production and sale of marijuana a federal crime. In our federal system, a state law that conflicts with a federal law violates the Supremacy Clause of the U.S. Constitution and is void.

The CSA itself clearly states that federal law overrides state law when there is a positive conflict between the two jurisdictions. Thus there is very little likelihood that anyone is going to be paying sales taxes to the state of California or its municipalities when to do so would be admitting the commission of a federal felony.

The California proposition is not a close call. It will be in explicit conflict with established federal law. It will also violate our government’s treaty obligations with other countries.

…Each of us, upon becoming administrators of the Drug Enforcement Administration, took an oath of office to uphold and defend the Constitution. While we may no longer be in public service, our personal commitment to this goal and to the responsibility to uphold the law remains undiminished. It is in this spirit that we call on the Department of Justice to provide a legal position on California’s ballot initiative—and to do so in advance of the November election.

Note their assumptions:  “In our federal system, a state law that conflicts with a federal law violates the Supremacy Clause of the U.S. Constitution and is void.”

And…” Each of us, upon becoming administrators of the Drug Enforcement Administration, took an oath of office to uphold and defend the Constitution.”

These guys clearly think the federal government’s power is absolute, and that by passing a law on pretty much anything it activates the Supremacy Clause and preempts the states. So as Woods notes, the question becomes: what is and is not a Constitutional power of the federal government? Can it really impose uniform drug laws on every state? Can it require every citizen to buy health insurance, register their guns, and participate in Social Security and Medicare?

Or can states simply say no thanks, we’ll take care of it ourselves?

This is fascinating stuff that’s soon to be front page news, as Washington tries for absolute power and a few governors reach back to the Founders to justify their resistance.

13 thoughts on "Thanks Washington, But We’ll Do It Ourselves"

  1. Given that every one of these issues was decided judicially, and then by a Civil War, it strikes me that the author of the book on nullification has no idea what he is talking about, nor about the consequences of the theory he is spouting. Let me guess — Tea Party?

  2. I love poison pill legal theories and the excitement and hope that is generated. Before assuming nullification can overturn federal opposition to the California Pot Initiative, you may want to read Gonzales vs. Raich. Pay close attention to the opinions of Justices Kennedy and Scalia.

    Nullification is such an “out there” legal theory not even Justice Anton Scalia agrees with you.

    Aside: Even though I favor treating all drug use as a health issue rather than a criminal justice issue I will not vote on Prop 19. Just as I won’t vote on any proposition. IMHO, propositions make for bad law via an ill-informed process.

    1. Thomas Jefferson’s opinion on the Supreme Court was that they were to render an opinion on the constituionality of an issue. But it was only an opinion, not binding on any other branch of government or the states because the power to make it binding would violate the segregation of powers between the branches of government. More important than nullification would be to remove the power of the federal court system to make its opinions binding on other government entities. Take the judge in California who just issued a ruling that “don’t ask, don’t tell” cannot be enforced anywhere in the world by the military. Regardless of your stand on the issue, no judge at that level or any level should have teh power to tell the military how to best conduct its business.

  3. The CSA of 1970 is a “licensing Law” with “Regulation thought control” to be punished by 841(b), if a “legitimate medical purpose” is NOT issued. No Power was vested by the Constitution to control anything ingested by American citizens; see “The Prohibition Amendment” of 1922 and it’s repeal in 1932! Congress. The Courts, State and Federal have violated the Constitution by allowing the prosecutors to commit “Fraud on the Courts”, 1970-20011. A “function” licensed by the State and Nation cannot be made into a “Crime” by NOT doing that “function”> The misdemeanor is to “OMIT the Act of Registering with the Attorney Generals” involved! Doc !

  4. Federal power V. State rights is not an issue that one must take sides on, and it would badly damage America to do so, from the very drafting of the constitution the founders knew that shared power would always be a balancing act that required individual attention to the health of the country and participation in it’s governance, and it still is, what they did not foresee were multinational conglomerates buying federal power via corporate personhood that bears special rights real persons either do not have or cannot afford, and maintained through gerrymandered congressional districts that make change impossible. Federal power is now absolute and unchecked, and wielded by the servants of foreign and corporate money interests which makes you and me wage/debt slaves in the so called land of the free.

    But, the other end of the balancing act is just as bad, South Carolina, Utah, and a few others would no doubt set up concentration camps for “moral reprogramming,” and easily pass death sentences for moral crimes, the leaders and majority in some states call repeatedly for the drafting of theocratic laws that violate the rights of all but a very few citizens, and it was bad enough with 13 original states, with 50 it would be a Balkanization that the nation just would not survive. We know this is true because the reason the federal government ended up the winner in the balancing act is that states with nullification powers did, and will, cherrypick the laws and rulings they deem appropriate to their own internal power structures.

    Failure to get an APPROPRIATE balance in the powers would I think lead to a civil war, or something bubbling just under that description, with many thinly populated red states getting crushed by the industrial and heavily populated blue regions, just as the south was crushed by the Union. And, thank god it was so or the USA (and the CSA) would eventually have ceased to exist.

    There is a lot to be repaired in America today, but if I had to choose between an absolute federal power and absolute nullification I would choose federal power every single time, without the protection of the federal government I would be dead now, and those still alive would be learning Mandarin, or Spanish.

  5. Respectfully I disagree. Nullification will never happen.

    A huge majority of the population receive Federal dollars. Every facet of the gigantic medical industry is hugely subsidized by the Feds. The vast bulk of the legal and tax advisement industries owe their existence to the Feds. A big chunk of the construction industry are funded by the Feds. Many tens of millions on unemployment, social security, welfare, etc. Federal, State and local government employees overwhelmingly love their meal ticket from mother government and will never vote for less government at any level. State and local governments in general collect uncounted billions in Federal bribes, uh er, “incentives” every year. Virtually all large corporations do a lot of business with governments. I could go on and on.

    The point is, a governor attempting to nullify Federal laws would get huge resistance from his constituency who want to continue collecting Federal money. They won’t risk tipping the apple cart. A governor who attempt any form of nullification would never get elected in the first place.

    The public wants to vote themselves dollars from the Federal Treasury. It will continue that way, and will continue getting worse, until the final collapse (reference the name of this blog).

    1. One of the points Ron Paul and others make is that when the Federal dollars the the Federal government use to bribe individuals and the states disappear in a hyperinflation, the Federal government will itself largely disappear, leaving the states to rebuild the nation along more confederated lines.

  6. The Teaparty senatorial candidate in Alaska has been talking in a similar way, but was deliberately ignored by the press. The quote I heard was about “transferring federal assets to state control” because the federal government had abandoned taking care of them and was nearing economic collapse, so the state would have to take up control anyway.

    Southern border states are actually nullifying federal power by patrolling the Mexican border themselves, when it really shouldn’t be their job to secure a foreign border.

  7. Hi to all of you,

    As an absolute foreign parochial French reader of Tocqueville (in its native language) I believe, like this great analyst, that the US is, per construction, a federation where values and, more important, strength are built up at state and local level. This is an essential difference to many others countries, starting with Tocqueville (and mine by the way).

    It looks clear to me that as long as US remains Washington-centric, and it certainly is currently (just check the budgets), there is little chance it recovers.

    However, may I say that I’d be glad that this book gather both support and audience in the media. Since this back-to-the-roots-movement has support within its original constitutional construction. Even foreign dummies have little doubt about that!

    My proposal would be for US states to try to set up own participation and seat at the WTO! It is now just so essential… and essentially destructive to what is left of the once great US industry.

  8. Let’s get real: court proceedings did not checkmate Nullification, i.e. States’ Rights. The Civil War did. Nationalist-centralizers defeated secessionist-nullifiers. But then was then…now is now. And once again the fundamental issue – collectivist power vs. individual freedom – is going to be resolved by the ultimate currency: life itself. Civil War II. We’ll see who is willing to fight and, if necessary, die for freedom.

  9. How can there be “settled law” in re the Constitution?
    I thought it was a “living document” that must constantly be “reinterpreted” in light of modern developments of which the Founders could never have conceived?

    Go ahead, use that argument against McCulloch v. Maryland!

  10. First of all, I loved “Interview with a Zombie”.

    Now, clearly the central issue is who decides the Constitutionality of a proposed Federal Law. Presumeably it would first be decided by the US Supreme Court, but I should think any State Supreme Court could challenge it. The concept that would then break the log jamb is expressed in the sentence: “Normal people consider an issue “settled” when the arguments for both sides have been exhaustively heard, and with reason as the arbiter one side emerges triumphant.” That is the closest one can get to an objective or “true” conclusion, and one reached somewhat democratically.

    I think the nullification concept should gain traction pretty easily and quickly with most people since it should ring true even among those fairly ignorant of US history that the sentiment expressed by James Madison that, “…Virginia would never have ratified the Constitution had anyone thought the federal government’s powers to be as expansive as John Marshall was proposing, given that exactly the opposite view of the new government was expressly promised to the people at the Richmond ratifying convention.”

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