Thursday, January 22, 2015

Nullification

Nullification: How to Resist Federal Tyranny in the 21st Century
© 2011 Thomas E. Woods, Jr
309 pages



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.


Related:
The Liberty Amendments, Mark Levin,  all of which aim to restore to the fifty states their original power over the central government.

8 comments:

  1. I do sometimes wonder if America is actually a country. It would seem that a significant minority (?) would like to see it reduced to fully independent States and then maybe into thousands of City States. It does seem quite bizarre that there is such resistance to central Government. I mean I do get the idea of Federalism. After all I'm a fan of a more Federal Europe - leading ultimately to the United States of Europe - but I think that's something quite different (hundreds of years of history as pre-existing nation states for one thing). I do think that Nationalism has had its day and should be junked as a good idea gone bad but falling back on an Ancient Greek style loose federation of smaller and smaller units determined on self government at any cost isn't really the way to go.

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  2. Any devolution of power in the US would stop at the state level, I think, unless there was some civilization-levelling catastrophe. Unlike the nations of Europe, we don't have any tradition of independent city-states, even if some of our cities have larger GDPs than many countries.

    In light of the many, chronic, and uninterupted abuses of centralized states in the 20th century, how we not oppose them, especially in light of how much technological power is accreting in their hands? Hitler's evil was extraordinary not because he was exceptionally depraved, but because he had extraordinary power at his disposal. No epoch in history has been as bestial as the 20th century, and no period in history has seen as many centralized states.

    I'm for decentralization on many grounds: I believe that local governments are more aware of and more responsive to local needs, I believe central states have to deal with too many problems with the abstract, and start doing things like swatting mosquitos with hatchets. But mostly I believe humans should not, under any circumstances, be exposed to the power a central state can give them. We are lunatic chimpanzees with a penchant for poetry, and it is best for our mental health and our lives that Power not be allowed to accrete.

    (Another point: local governance means local-responsibility, and therein true citizenship. Citizens don't vote: they make sure their neighborhoods are clean. Citizens invest themselves in their communities at a practical level, not in the abstract of voting.)

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  3. Stephen said: I believe humans should not, under any circumstances, be exposed to the power a central state can give them. We are lunatic chimpanzees with a penchant for poetry, and it is best for our mental health and our lives that Power not be allowed to accrete.

    I don't think that reducing the overall size of a State or the population it controls/serves in any way reduces the opportunity for tyranny to emerge. I could even argue that a smaller political 'class' would concentrate power in the hands of the few and actually increase the chances of centralised power - just on a smaller scale. The problem isn't about size it's about people.

    Stephen said: local governance means local-responsibility, and therein true citizenship. Citizens don't vote: they make sure their neighborhoods are clean. Citizens invest themselves in their communities at a practical level, not in the abstract of voting.

    Only potentially. As the Ancient Greeks found out to be a fully active (male) member of the community you need the time and the education to take part - in other words you can't work for a living and be a citizen. It follows that the political class will be synonymous with the Rich. Personally that's not the kind of State I want to legitimize even if it's mostly how things work IRL..

    I think we're going to have some fun debates about this in the upcoming months with some of the books I have in the pipeline.

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  4. BTW - Just picked up a copy of Bernard Cornwell's Waterloo: The History of Four Days, Three Armies and Three Battles. 80% off too so a REAL bargain - and just in time for the 200th anniversary coming up soon.

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  5. I think there's a disconnect in our approaches here: for me, the State isn't something I want to legitimate at all. At best, it's a necessary evil. The more political power is broken up, the less need we have for a political 'class': my idea is that people should only concern themselves with the politics of everyday, of their actual communities. Idealistically, Beyond the township level -- at the level of the city, the province, and let alone the national State -- problems become more abstract, solutions become more authoritarian, etc. We'll never see a world like that, of course, but for me personally, I have accepted that nothing I do can influence the actions of the rulers in Montgomery, let alone the rulers in Washington. Americans who DO identify with them can only do so abstractly, I Think, taking their instinctual devotion to their territory and to their 'tribe' and wrapping it AROUND the idea of a nation.

    For me, citizenship does not involve making decisions that control the lives of other people.

    Admittedly I can't guarantee I'll hold this contention five years down the road: my political beliefs have changed through the few years we've been following one another's reading. I've been tracking toward the nonaggression principle and against the state since 2008, though.

    I'm not a puritan about it (I like the Green platform , except for all the state-dependent stuff), but I would rather have more devolution of power than concentration.

    Be of good cheer, though, I only have two more books in this 'theme' coming up -- one is a history of decentralization in America, and the other is a novel about a cop who infiltrates an anarchist group and is persuaded by them. ;)

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  6. Congrats on the Cornwell steal! :D I'm eager to know if he's as brilliant writing nonfiction as fiction.

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  7. Stephen said: I think there's a disconnect in our approaches here: for me, the State isn't something I want to legitimate at all. At best, it's a necessary evil.

    I think its entirely possible to have a legitimate State if its run properly (for all of its citizens). We do have many historical examples of evil States but that certainly doesn't mean that the State per se is evil, necessary or not. As I've said before I'm a Socialist so pretty much believe that the State *must* exist as long as there is a need for it - until we develop a Star Trek like world which I doubt will be happening any time soon!

    Stephen said: For me, citizenship does not involve making decisions that control the lives of other people.

    We are, as it has been rightly said, political creatures. Get more than 1 person in a room and politics happens. Part of politics is the manipulation of others. Basically I don't believe that you can have citizenship without politics and therefore without 'making decisions that control the lives of other people'. Although 'control' is a strong word that I wouldn't have chosen.

    Stephen said: I'm not a puritan about it (I like the Green platform , except for all the state-dependent stuff), but I would rather have more devolution of power than concentration.

    We're definitely going to have some interesting conversations about the books we're both planning to read... [grin]

    Stephen said: Congrats on the Cornwell steal! :D I'm eager to know if he's as brilliant writing nonfiction as fiction.

    Yeah, I was pretty impressed. I dipped into it whilst waiting for my movie to start and would be reading it right now if it wasn't for my existing reading plans. I'll definitely be reading it before the June anniversary though.

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  8. This author definitely seeks ways to reduce centralized power - nullification being something that has potential.
    I share his view in the sense epitomized by Lord Acton in his famous quote about the corrupting effects of power.
    Perhaps Tom Woods will become a sort of twenty-first century Tom Paine.

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