The Heritage Foundation is opposed to state nullification. The peons have evidently latched onto an idea that has not been approved for them in advance by either National Review or the New Republic, so it is time for a ritual scolding. Why, didn’t you know, citizen, that if you think a federal law is unconstitutional we can change that law? Happens all the time! All. The. Time. And we have courts, too, which have done a splendid job restraining the institution that employs them. What kind of crank could be unsatisfied with this?
Since I’m getting things together for the first lecture in my online U.S. history course for the Mises Academy tonight, I don’t have time for the usual point-by-point reply. But I don’t need one. I see almost nothing here that isn’t already addressed in my standard reply to objections.
A few highlights, though:
— “President Andrew Jackson (himself a strong advocate of ‘states’ rights’) settled the matter.” Actually, Secretary of State Edward Livingston wrote Jackson’s Nullification Proclamation, a thoroughly confused document that was systematically dismantled by Littleton Waller Tazewell.
— “There is no state nullification clause [in the Constitution].” This, too, is answered in my reply to objections. Very quickly: In the same way that the state ratification conventions (which is where we are to look for the Constitution’s interpretation) were told that what later became the 10th Amendment was already implicit in the document as written, the Richmond Ratifying Convention of 1788 said the same for nullification. Beyond that, there’s the simple logic of the matter: the peoples of the states are the sovereigns; they in turn apportion powers among the states and the federal government, while of course retaining their sovereignty (no government is sovereign in the American understanding); therefore, the very logic of the system demands that in the last resort the architects of the system must retain (as an expression of the sovereignty they never parted with) the power of final judgment regarding whether their own creation possesses a particular power.
— Madison, in the Virginia Resolutions of 1798, was referring merely to “state actions meant to arouse public opposition, challenge federal actions and ultimately change the objectionable action.” Uh-huh. That’s what the Madison of 1830 would have us believe. I address this on pp. 288–290 ofNullification. Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, forthcoming 2012) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of theEarly Republic 15 (1995): 569–89. Judge Abel Upshur likewise made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book. (One quick point: if we’re really expected to believe Madison went to the trouble of drafting formal resolutions affirming a principle absolutely no one denied — “the states may issue formal protests” — why was the response from some of the northern states so negative? Obviously they took him to mean what everyone at the time took him to mean.)
– “Jefferson did use the term ‘nullification’ in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution — admittedly and of necessity outside the constitutional structure.” Pure Straussianism, this. Jefferson’s draft uses the phrase “natural right,” so we’re to believe he is asserting merely an airy-fairy position that has no constitutional grounding but lies “of necessity outside the constitutional structure.” If that were true, I’d say so what — since when is the Constitution an idol? But it isn’t. The grounds on which Jefferson asserts this “natural right’ of nullification are established firmly in history, where we discover that the peoples of the states delegated a few powers to a federal government, while necessarily retaining their sovereign powers intact. If that is the case, then it necessarily follows that they would possess a right of nullification. The alleged “natural right” is merely the logical consequence of the meaning of sovereignty.
In short: quit being so uppity, stick to the most laughably failed strategies in the history of mankind, and have confidence that the strategies officially approved for you by the establishment will surely bear fruit.
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