Nullifying Non Sequiturs

Nullification Should Be Taken Seriously, Not Caricatured
July 6, 2010

Art Carden teaches economics at Rhodes College and is an occasional contributor to Forbes.com and other publications.

The weeks surrounding Independence Day are always a good time to assess the American experiment in liberty. For all of our successes, there remains a lot of discontent across the political spectrum. The federal government is fighting the states over the issue of medical marijuana, for example, and we're also preparing to add to the Supreme Court a justice who apparently thinks that "Congress shall make no law...abridging the freedom of speech" with respect to speech means that "Congress shall weigh the costs and benefits of making a law" before passing a law "abridging the freedom of speech." What option do the people and the states have if they disagree and wish to hold fast to the "Congress shall make no law" principle? Or what if they think the Federal government is overstepping its constitutional bounds?

Enter prize-winning historian and bestselling author Thomas E. Woods. I've had the pleasure of working with Professor Woods at the Mises Institute's "Mises University" summer program and trading notes about some of his projects, so I was looking forward to his new book. In Nullification: How to Resist Federal Tyranny in the 21st Century, Professor Woods offers a thorough-but-compact discussion of the doctrine of nullification. As he writes, "nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all" (p. 3). It is, according to the framework established by the Founders, an essential part of the system of checks and balances that defined the federal union. Even though they established federal-level checks and balances, the founders were troubled by the notion that the Federal government should be its own judge.

Nullification was formalized in the Virginia and Kentucky Resolutions of 1798, and it essentially says that the states are not bound to enforce federal laws that step outside the bounds of the central government's Constitutional authority. That raises two obvious questions. First, what are "the bounds of the central government's Constitutional authority"? Second, what is the Constitutional relationship between the states and the central government? Woods discusses the three provisions that have been used to justify expansion of federal power--the "general welfare" clause, the commerce clause, and the "necessary and proper" clause--and argues convincingly that these were largely clauses of convenience that empowered the government to do the things necessary to fulfill their constitutional mandate. In Woods's interpretation, this meant that the government had the constitutional authority to do mundane tasks in pursuit of their constitutional goals. They could buy lumber to build "needful buildings" and paper on which to print government documents without explicit permission, for example (p. 29). As Woods interprets it, the interstate commerce clause establishes the United States as a free trade zone. It does not give the government carte blanche to do as it pleases as long as it can cook up an "interstate commerce" rationale. Citing James Madison, Woods asks an important question: if the general welfare clause is sufficient to justify pretty much anything the Federal government wants to do, why bother with enumerated powers? Indeed, why even bother with a constitution?

Unfortunately, sympathy for nullification and states' rights has been smeared by the association of these ideas with slavery. This is most unfortunate because it conflates a question of unambiguous moral evil (slavery) with a legitimate and difficult constitutional question. Those skeptical of nullification might cite the defense of the doctrine by John C. Calhoun, who was also an outspoken defender of slavery. The rhetorical road leads to slavery when it doesn't lead to Hitler (and Woods invokes Hitler's opposition to states' rights on pp. 120-121). Nullification is to be opposed because some of its defenders were also slave owners and slavery apologists. Producing this non sequitur requires a tortured and invalid line of reasoning:

Tom Woods defends nullification. John C. Calhoun defended nullification. John C. Calhoun defended slavery. Therefore, Tom Woods is defending slavery.

Consider the following:
American presidents defend the idea of a strong military. Hitler defended the idea of a strong military. Hitler was a genocidal maniac. Therefore, American presidents defend genocide.

I'm also reminded of something a friend wrote on his whiteboard in college:
God is love. Love is blind. Ray Charles is blind. Therefore, Ray Charles is God.

All three are silly. For an entertaining treatment, see how Woods addresses some of the “slavery and racism” objections in his "Interview With a Zombie" spoof.

In chapters 3 and 4, Woods explores how Northern states invoked the principles of nullification in response to perceived usurpations by the central government and defends the compact theory of the union, which holds that the United States are--not is--a collection of free, independent, and sovereign territories rather than subordinates of the federal government. As one example, Woods offers New England's reaction to the 1807 prohibition on American ships participating in international trade. Massachusetts legislators argued that it was "not legally binding on the citizens of this state" and Connecticut governor Jonathan Trumbull argued that state legislatures had the "right" and the "duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government" (pp. 62, 63, 67). Elsewhere, Woods discusses the concept of jury nullification, which holds that in any trial the jury is not merely deciding whether the law has been breached, but whether the law itself is permissible (p. 129). If, in the words of Theophilus Parsons, "(a)n Act of usurpation is not obligatory--it is not law" (quoted on p. 129), this suggests a more animating contest of liberty, and graver duties of citizenship, than the notion that citizenship is equivalent to obedience.

It's clear from the book jacket, the back-cover blurbs, and the style that Nullification is a polemic rather than a scholarly treatise, its eighteen pages of endnotes notwithstanding. The last chapter, "Nullification Today," is looser, more conversational, and more strategic. Nonetheless, it offers resources that scholars and pundits will find useful. The second half of the book consists of documents related to the nullification doctrine, including the Virginia and Kentucky Resolutions and the March 19, 1859 Joint Resolution of the Legislature of Wisconsin by which Wisconsin nullified parts of the Fugitive Slave Law. According to James Madison, Thomas Jefferson, and others, the states were one line of defense between the citizens and the people; indeed, Jefferson referred to the State authorities as the "colleagues" of the Federal authorities (p. 4). The compact, conversational style make it a good book for anyone to have on the nightstand. The references to the founders and the documents in the second half of the book make it a useful book to have on the shelf.

No doubt scholars who disagree with Woods will have important and substantive criticisms. Nullification is at the forefront of debates about the relationship between the states and the federal government with respect to immigration and medical marijuana, among other issues. It is an idea that deserves to be taken seriously rather than caricatured. Nullification is a step in that direction.