Written by Tom Woods
The commissars are out in force against me these days.
It started like this. Martha Dean, a candidate for attorney general in Connecticut, repeated her support for state nullification of unconstitutional federal laws in a recent televised debate. She opened up my book Nullification and quoted from Jonathan Trumbull, the nineteenth-century Connecticut governor who declared: “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”
Yes, that was a Connecticut governor. Connecticut, as you may recall from your studies of geography, is in the North.
I won’t leave you in suspense regarding the reaction of her opponent, George Jepsen. Nullification, he said, is an outdated concept that led to the Civil War and “has no place in our discussion today. . . . The U.S. Supreme Court is the final arbitrator with what is constitutional and not constitutional. It’s not for the states to decide.”
One benefit of being a commissar is that you need never debate truly important matters. These can simply be portrayed as “extreme,” “outdated,” and having “no place in our discussion.” That’s a lot easier than openly pleading ignorance.
Now Alan Pyke, a commissar-enforcer at the left-wing hypochondria site Media Matters, is giving Dean a hard time because she likes my work. Why, doesn’t she know what an “extremist” Woods is? (You are an extremist, by the way, if the enforcer can’t find a place for you on the spectrum that runs from Mitch McConnell to Hillary Clinton.) He then runs through the usual routine, digging up 15-year-old articles and shouting, “Eek! A mouse!” If he looked a little harder, he’d find that in the 1990s I’d even supported the Persian Gulf War and written an academic journal article (inAmerican Studies) somewhat skeptical of capitalism. Might have been easier to look at my writing from, oh, five days ago, but that wouldn’t be any fun!
Pyke’s arguments are the standard ones; it’s almost as if there’s some Mad Libs template for the arguments against nullification. Why, this violates the Supremacy Clause! Um, no, it doesn’t. Jefferson knew there was a Supremacy Clause, presumably. The Supremacy Clause nowhere says that unconstitutional laws are the supreme law of the land. Can you imagine anyone voting to ratify the Constitution if that clause had meant, “This Constitution, along with any old laws the federal government may pass, whether in line with this Constitution or not, shall be the supreme law of the land?”
Then we’re told Article III settles this, though again, Jefferson was likely aware of the existence of Article III. But the Court’s powers are judicial, not political. Article III deals with cases in law and equity, not matters of political contest. It was not until the mid-twentieth century, which is rather a long span of time after the ratification of the Constitution, that the Court began seriously claiming such a power to settle political disputes between the states and the federal government. The first time it had tried to do so wasn’t until 1890. Even Edward Livingston, the principal drafter of Andrew Jackson’s Nullification Proclamation, conceded half the argument: “In cases in which a law of the United States may infringe the constitutional right of a State, but which in its operation cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a State that may deem itself aggrieved and the General Government.”
Moreover, James Madison, who was also aware of Article III, explained in his Report of 1800 that there of course needed to be an additional remedy for the people when even the judicial branch had failed them. All three branches of the federal government were liable to encroach upon the rights of the people. Said Madison:
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.
Hmm, that sounds a little bit like “crazy” Tom Woods or Martha Dean. But that’s James Madison talking. That’s a real shame, Alan. Let me console you with some trombone.
(But didn’t Madison later claim he didn’t support nullification? That argument is dealt with on pp. 288–290 of Nullification.)
Since I wrote a whole book laying out the evidence against the claims Pyke is making, I’ll leave those matters to rest, though you can find more of my writing on this in my article archive.
Pyke would have us forget about — because he himself doesn’t know about — all the northern states that appealed to the Principles of ’98 (as the principles culminating in nullification came to be known); this is a crazy southern doctrine and nothing else. Pyke doesn’t even know (1) that northern states nullified the fugitive-slave laws, and (2) they even cited the wicked John C. Calhoun in doing so. Were they wrong to do so, Alan?
Like any commissar, Pyke greets an idea not vetted by the Washington Post or the New York Times with smears and denunciations. No attempt to understand why Thomas Jefferson would have promoted nullification, or to reply to (or even mention) any of the arguments he employed in its favor. Hilariously enough, no mention of Jefferson at all. An innocent oversight, no doubt.
But it is this that takes the cake. Pyke writes, “Dean may not be arguing for an economy based on slave labor” — see, Pyke can be magnanimous when he wants to be — “but she is arguing — vigorously — that the legal doctrine used by slave states to defend the practice (thus starting the Civil War) is a valid and useful ‘tool’ in our legal system.”
My friends, meet the winner of today’s Dumbest Guy in the World.
Alan, can you name for me an incident in which the South used nullification to defend slavery? Can you show me specifically how this use of nullification led to people suddenly killing each other?
Can’t find one?
That’s because your third-grade argument makes no sense. What would the South have had to nullify? All those antislavery laws on the books? Care to name one?
Now I suppose there is one way in which nullification led to the southern secession (which is not the same thing as saying it led to the war), but it will surprise Alan Pyke, who knows none of this. South Carolina’s ordinance of secession complains that the North is doing too much nullifying, and that the South is sick of it. In particular, the North was interfering with the enforcement of the Fugitive Slave Act of 1850. The Wisconsin Supreme Court got so uppity that it stood up to Alan Pyke’s heroes, the U.S. Supreme Court, and declared the Act unconstitutional (the Constitution’s fugitive-slave clause notwithstanding; I explain this in my book as well). So I suppose in that sense nullification may have helped provoke the southern secession, but I doubt that’s what Pyke meant by his remark.
Nullification was used throughout American history on behalf of free speech and free trade, and against unconstitutional searches and seizures, military conscription, and the fugitive slave acts. Pyke doesn’t mention this. No one ever does. We must stick to the narrative: the states are stupid and backward, the federal government is a progressive force, and anyone skeptical of this version of events belongs on a watch list.
Pyke does mention the use of nullification rhetoric during the civil rights movement, the implication being 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 to the 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 aworld government. Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under such a system in the past.
Moreover, the argument is not 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 argument — why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again — is never used against the institution of the state itself, particularly the megastates of the nationalistic twentieth century. I rather doubt Pyke would say, “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 (included unfunded liabilities) well in excess of $100 trillion. In light of this record, what intellectual and moral pygmy would urge nationalism as the solution to our problems?”
What do I learn from this incident? What I’ve known already: the “progressive” Left always prefers a neoconservative to an antiwar libertarian. That’s Woods’ Law #2. They can overlook the support for war, the centralization of power (what “progressive” would disagree with that these days?), the encroachments on civil liberties. That’s all fine and dandy. But someone who opposes the initiation of violence against peaceful people? Get him!
So many so-called progressives, it turns out, are really just neocons with sandals. Political centralization, comic-book-style demonization of dissent — these people deserve each other.
I am under attack from these people because I wonder if 300 million people ruled from one city is the most humane way to live. Don’t I know I am not supposed to ask such a heretical question?
No one is allowed to adopt, much less advocate, an unapproved opinion, especially one directed at the heart of the regime, and anyone doing so can expect the heretic treatment. I will be portrayed as a sinister person who wants to bring back the Southern Confederacy, though why a libertarian would want to restore a regime that protected slavery and engaged in military conscription and monetary inflation is never explained. (But when Woods was in college [sixteen years ago], he. . .. Yes, that’s what they are actually going to pull.)
Here’s my actual background, since you won’t learn about it from them (an oversight, I’m sure). I’m pretty sure my Politically Incorrect Guide to American History, which they haven’t read but are sure must be terrible, survives the two neoconservative attacks they cite against it. See my “Replies to Critics” on this page, and decide for yourself who has the better of the argument.
One of the two reviews they cite against the Politically Incorrect Guide comes from the Claremont Review of Books, as if this is the standard bearer of right-of-center thought. They think if Claremont doesn’t like me, I’m finished. Well, why wouldClaremont like me? Claremont awarded Donald Rumsfeld its 2007 Statesmanship Award. My version of history is probably going to be a teensy bit different from theirs. (Natch, they leave out that Claremont did like this book of mine on the economy. “Very convincing,” they said.)
The other person whose criticism is supposed to sting so badly is Cathy Young, who’s about as libertarian as George W. Bush. Idealt with her almost as an afterthought.
The progressives who are after me are the worst kind of all. If California decriminalizes marijuana, they will be the first to call for locking people up in government cages anyway. For how dare they resist their wise overlords in Washington! What’s that, comrade? “Question Authority,” you say? Wherever did you learn that? What are you, some kind of “neo-Confederate”?
These “progressives” favor centralized government, they insist, because it’s so good for minority groups. Oh, it’s super. How great the federal drug war has been for blacks!
Oh, and Pyke can’t believe I had the nerve to point out that Adolf Hitler was the biggest opponent of states’ rights in the twentieth century. He says it’s unfair to infer that progressives who believe in nationalism against local self-government are really pining for life under Nazi Germany. Now he reveals his true colors. No normal person would think that’s what I was saying. But as a professional smear artist, Pyke knows full well that that’s what he would be implying if he ever used a Hitler analogy against someone else. He assumes I’m playing the same game. Since I am a decent person, that is not what I am doing.
What I am trying to do is to get people to think. If decentralized power were a mere smokescreen for oppression, why have all the great tyrants, without fail, opposed it? Can nationalists of left and right — neocons with and without sandals — please answer this question?
Given Pyke’s arguments, there is no more fitting way to close than with my Interview with a Zombie. “Slaaaavery! Neeeeeo-Confederate! Braaaaains!”
Thomas E. Woods, Jr., is theNew York Times bestselling author of ten books, including The Politically Incorrect Guide to American History, Meltdown: A Free Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse (with a foreword by Ron Paul), and, most recently, Nullification: How to Resist Federal Tyranny in the 21st Century. Visit his website, and watch his Rally for the Republic speech (part 1, part 2).