Nullification: How to Resist Federal Tyranny in the 21st Century (2010) – by Thomas E. Woods, Jr.

Moving Out of Mainstream Conservatism and Into the Fringe

Mr. Woods effectively sums up his respect for the U.S. Constitution by quoting famous American anarchist, Lysander Spooner, in the conclusion of his book on Nullification: “Lysander Spooner, abolitionist and anarchist, once said that the Constitution has either authorized the government we have now or has been helpless to prevent it. `In either case,’ he starkly concluded, the Constitution `is unfit to exist.'” (pg 142)

With this book, Woods has finally just violently hurled himself out of mainstream conservatism and into the fringe. As a conservative with tea party sympathies myself, I have to warn everyone that if they follow Woods’ suggestions, they are going to send the Tea Party movement down the abyss, along the way of the “birthers” and other “outside of conservatism” dingbats. It is no coincidence that Spooner was a profound influence on libertarian Murray Rothbard (who was famous for (a) arguing that the government shouldn’t be allowed the power of taxation, or actually the right to exist at all, and (b) being kicked out of conservative circles by William F. Buckley, Jr., National Review, and Co.). It should come as no surprise that Woods finds it useful to quote from Rothbard in order to make the arguments in his book.

This book is based on selective and shoddily thrown together history, ignoring obvious historical facts that are inconvenient to Woods’ arguments. For example, it was only Jefferson, not Madison, who supported the idea of nullification. (Madison, not Jefferson, helped write the Constitution.) The power of the states to nullify and ignore federal law was one of the huge problems under the Articles of Confederation which caused the Constitutional Convention in 1787 in the first place. In other words, the Constitution was written so that the states couldn’t ignore or nullify federal law.

Woods is actually making some of this stuff up completely out of thin air. Nullification is a “right” that is contained in the 10th Amendment? That idea is so laughable that I am still surprised I’d even have to address it. First, the federal government has no power unless the people, through the Constitution, grant it power; thus, all power of the federal government is stated in the Constitution. Second, this made the Bill of Rights (10th Amendment included) simply a restatement of the obvious, that it was declaring that the federal government didn’t have power to do things that it already didn’t have power to do. Third, the power of the federal government, given by the Constitution, includes the power to enforce its own laws over the states (unlike in the Articles of Confederation). Trying to then say that the 10th Amendment gives the states a power it was the purpose of the Constitution to avoid is simply foolish.
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“For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
– Alexander Hamilton on the Bill of Rights
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Biggest Problem: Woods is essentially giving up on the United States Constitution. He is saying that we’ve lost, that the Constitution is now meaningless, and that it can no longer be used to restrain government power. While I, and most other conservatives, agree that the Constitution is being misinterpreted to give the federal government too much power, I do not believe the Constitution is worthless and that it can no longer be used to restrain power. The checks and balances and elections all still exist. We simply have to use them, instead of adopting the corrupt rhetoric of Senator John C. Calhoun (of the “great sovereign state” of South Carolina).

Any political philosopher or historian would have a hard time taking seriously anyone who resorts to making the sorts of arguments that Mr. Woods gives us. He argues: “A constitution is, after all, only a piece of paper. It cannot enforce itself.” (pg. 4) “Proposing nullification around such people is like holding a crucifix before Dracula.” (pg. 16) “If political representation ever really meant anything, it surely doesn’t today.” (pg. 17) “Would the world not have been better off had Germany remained a decentralized collection of states?” (pg. 18) “The merits of South Carolina’s constitutional argument are not our concern here.” (pg. 77) “If I say the sky is blue and you say it is brown and green, and then you throw a brick at my head, does that make the sky brown and green?” (pg. 84) and of course, who else can we say that, just like President Andrew Jackson, would have been against Nullification? Oh (slaps forehead) I know, Adolf Hitler – “No nullification for him” Mr. Woods propounds solemnly as he quotes from Hitler’s ‘Mein Kampf’ to prove that Hitler was also against any federal republic of states.

Mr. Woods is essentially putting his case together by quoting from the bitter and discontented losers of American History (most of whom are from the South). Thus, all the quoting from Senator John C. Calhoun (really, with all due respect, if you read about him he was a crazy person; he also kept trying to promote the idea that, under the Constitution, the states were still individual sovereign nations and the Federal Government was really just a U.N.), Judge Abel P. Upshur (who? a guy who tried to critique Joseph Story’s ‘Commentaries on the Constitution’ because, as he explained later, Story’s interpretation threatened the existence of slavery), and Littleton Waller Tazewell (a devoted crony of Calhoun) – are not going to convince anyone. These are all guys the likes of whom Senator Daniel Webster tore to shreds in public debates on the floors of the U.S. Senate. These are the guys who Democrat President Andrew Jackson seriously considered hanging from the nearest tree for treason. These are the guys who, and I’m not saying their ideas shouldn’t be considered rationally mind you, but whose ideas the minds of Madison, Hamilton, Webster, Jackson and Lincoln crushed.

Why isn’t the idea of Nullification unconstitutional? Well, let’s think for a second. Wouldn’t it violate, oh say, the “supremacy clause” or the jurisprudence of Justice John Marshall (and Marbury v. Madison)? Not according to Woods, thanks to Senator Calhoun’s pal, William Harper (of the “great sovereign state” of South Carolina, and author of the book ‘Memoir on Slavery’). You see, according to Harper, Nullification is supposed to protect the Constitution, because it’s only used when states have to declare the federal governments’ violations of the Constitution unconstitutional. What Woods fails to understanding is that destruction of the Constitution for purposes of fighting against destruction of the Constitution is … well, it’s an exercise in the act of shooting oneself repeatedly in the foot. I have an army buddy who did that and, according to his story, it is a needlessly unpleasant exercise.

Thomas Jefferson’s ideas on this subject are Wood’s favorite life-line. Jefferson was, for years, open about the fact that he preferred the Articles of Confederation to the Constitution. Jefferson was an extreme states-rights proponent who was often reasonably ridiculed for his utopian dreams of an agricultural paradise full of citizen farmers who would make up agrarian states unhampered by little to no government at all. Jefferson also had a little trouble with his pro-French Revolution sympathies – yet another idealistic view that kept getting him into trouble back in the context of political reality. But Woods likes Jefferson’s eccentric bits of political philosophy better than that of Washington, Franklin, Madison, Hamilton, Jay, Marshall or most of the other founders who actually wrote the Constitution in the first place. This is because, as Woods is careful to point out, “Jefferson took the opposite view” of Britney Spears who exclaimed that we just ought to “trust our president in every decision he makes.” (pg. 39) If Jefferson disagrees with Britney Spears about our government, well, he must be better than James Madison, who, like Spears said that the president’s power should be … oh, wait, he didn’t agree with that nonsense either.

Essentially, Woods would have an interesting point if America was really still a Confederacy of sovereign little nation-states who are just joined together for convenience. If this was true, then “nullification amounts to the legitimate exercise of sovereignty by sovereign bodies in defense of their liberties against a federal government that was supposed to be the agent, not the master, of the states.” (pg. 89). This nostalgia for an old confederacy may be touching for some. But it is not reality. We are one sovereign nation, and we have been for the last 200 years. Sovereignty is legally defined as ultimate power that does not, by definition, depend upon anything else for its existence. The federal government is not sovereign. The state governments are not sovereign. The American people are sovereign as a nation – one Nation, Under God. We are not a confederacy of small sovereign peoples called “Georgia” and “Rhode Island” and “Ohio” and “Oregon.” Woods, in all his quoting from the dust-heaps of the old anti-federalists (who lost by the way, the Constitution was ratified) and the old Southern Confederacy (who lost by the way, Abraham Lincoln didn’t let any little “great sovereign states” leave the Union so that they could keep their slavery or anything else), is only going to make himself a laughingstock. Anyone else who joins him can kiss any chance they have of being taken seriously in the public square goodbye.

All the bilge advocated by John C. Calhoun, Robert Hayne, and now currently by Thomas Woods, was dealt with years ago on the floors of the U.S. Senate by Daniel Webster. Webster’s arguments still defeat the arguments made by Woods as much as they defeated them when advocated by Hayne and Calhoun:

“The great question is: Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws? On that, the main debate hinges. The proposition that, in case of a supposed violation of the Constitution by Congress, the states have a constitutional right to interfere and annul the law of Congress – I do not admit it. If the gentleman had intended no more than to assert the right of revolution for justifiable cause, he would have said only what all agree to. But I cannot conceive that there can be a middle course between submission to the laws, when regularly pronounced constitutional, on the one hand, and open resistance, which is revolution or rebellion, on the other …”

“This leads us to inquire into the origin of this government and the source of its power. Whose agent is it? Is it the creature of the state legislatures, or the creature of the people? If the government of the United States be the agent of the state governments, then they may control it – provided they can agree in the manner of controlling it. If it be the agent of the people, then the people alone can control it, restrain it, modify or reform it … If there be no power to settle [the constitutionality of the 1828 tariff] independent of either of the States, is not the whole Union a rope of sand? Are we not thrown back again, precisely, upon the old Confederation? …”

“I hold the United States of America to be a popular government, elected by the people … It is not the creature of state legislatures; nay more, if the whole truth be told, the people brought it into existence, established it, and have hitherto supported it for the very purpose, among others, of imposing certain salutary restraints on state sovereignties … And sir, if we look to the general nature of the case, could anything have been more preposterous than to make a government for the whole Union, and yet leave its powers subject, not to one interpretation, but to thirteen or twenty-four [or fifty] interpretations?”

Any right thinking conservative will agree with Webster, instead of Woods and Calhoun. In fact you should also side with James Madison on this one, instead of Jefferson.

Woods conveniently forgets that Madison rebuked the idea of nullification saying that it “has the effect of putting powder under the Constitution and the Union, and a match in the hand of every party to blow them up at pleasure.” As a conservative, I’m not a pessimist like Woods who thinks the U.S. Constitution is suddenly useless garbage. We are blessed to live in a nation where we have the power to change the government under our Constitution as we wish. With separation of powers, checks and balances, and elections that ability is there. If President Obama’s recent Health Care plan violates the Constitution, then we the people have the ability to kick out of office every single politician who supported that unconstitutional tripe and elect new statesmen who will repeal the same Health Care plan and replace it with Health Care reform that (a) is constitutional, and (b) has some rudimentary semblance of understanding of how economics works. Sophists like Woods are not going to help us accomplish this. Instead, they’ll distract us, and give everyone a reason not to take anything else we try to say seriously ever again.

While Internet Bloggers who spend all their time at The Tenth Amendment Center, NewsMax, the Ludwig Von Mises Institute, The Cato Institute, The Constitution Society, and etc. will probably rave and lovingly salivate all over Woods’ new book with appropriate libertarian euphoria, those conservatives who have their heads on their shoulders should dismiss it, casually, but with a good-natured smile. After all, guys like Woods and their hatred for big encroaching big government can’t help but still be, at the very least, endearing.