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Nullification ≠ Discrimination: States' Rights Are Not Wrong

Posted: 07/06/10 09:07 PM ET

My article on nullification, entitled "States' Fights", appears in the July 2010 issue of The American Conservative. It emphasizes contemporary developments. For The Huffington Post, I have expanded on the history of nullification plus added some information that might be of particular interest to progressives. I'll warn you up front that this article is lengthy. It's an important but tricky subject--controversial and misunderstood. It deserves detail and requires nuanced explanation.

I know it's a thankless task to speak to progressives about states' rights. It invites a knee-jerk response. It conjures images of the Klan, of lynchings and burnings, of Bull Connor and Lester Maddox. I understand why. Modern liberalism usually means putting a premium on the value of equality above all else. "States' rights" has been the rallying cry for several well-publicized crusades for inequality over the past 150 years. Keep in mind, though, that these crusades for slavery and segregation--in the Civil War, Jim Crow, and Civil Rights eras--were manifestations of a single cause: white supremacy, with a special emphasis on the southern economic elite. The real evil was the end, not the means.

On an international scale, all of the great political monsters of the past century have exemplified the opposite of the decentralism principle that underlies states' rights. Totalitarianism, in both its Communist and Fascist forms, was about concentrating power in the hands of the few, at a level far removed from the common people. For instance, it was not as though Hitler had too great a regard for the desire of local people to govern themselves. Quite the opposite.

Resistance to political centralization and its frequent companion, economic centralization, is not antithetical or alien to the progressive tradition. After all, decentralization and community-based economics are two of the Ten Key Values of the Green Party, and grassroots democracy is one of its Four Pillars. And there has always been an anti-statist, anti-bureaucratic variety of socialism. For every Marx, Lenin, Trotsky, Stalin, and Mao, there has been a Bakunin, Proudhon, Kropotkin, Goldman, and Orwell.

Deeper in American soil, there is the decentralist tradition of Thomas Jefferson, John Taylor of Caroline, Samuel Adams, and Thomas Paine. Sam Adams, the great democrat of Boston, was an Anti-Federalist who thought "the best government" was the one which "played the least part in men's daily affairs" and who believed in a "negative political theory of natural rights" which "caused him to fear every increase in the central government's power" (in the words of biographer J.C. Miller).

Anticipating Kropotkin's Mutual Aid thesis, Tom Paine wrote, in The Rights of Man, "Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of men. It existed prior to government and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all parts of civilised community upon each other, create that great chain of connection which holds it together." Paine also believed that "the more perfect civilisation is, the less occasion has it for government, because the more does it regulate its own affairs and govern itself."

In the history of the United States, nullification has sometimes been a means of advancing freedom and democracy. Rooted in an honorable tradition, it can be a powerful tool for the people and a means of curbing centralized power. Nullification is the repudiation or ignoring of a federal law by a state government. It is also known as interposition. This deliberate failure to enforce federal statutes or judicial rulings within states is normally based on constitutional grounds.

In recent decades, the first organized effort to nullify federal laws came from the Left and the libertarian Right in the form of medical marijuana. What began in California, in 1996, as a challenge to the Controlled Substances Act of 1970, has spread with more states attempting to legalize cannabis, for both medicinal and recreational use. In more recent years, constitutional conservatives in the Republican Party and social conservatives in the Democratic Party have used nullification to protect Second Amendment liberties and to block the Real ID Act of 2005 (a federal effort to standardize driver's licenses). Most recently, there have been state efforts to overturn or block the national health care reform act. In comparison to the medical marijuana, firearms freedom, and national identification card endeavors, the anti-health care drive is different because of its lopsidedly partisan nature.

Pot smokers, Tea partiers, and other nullification advocates may not realize it, but their efforts are in a direct line of descent from the Principles of '98 enunciated by Thomas Jefferson and his allies. These principles represented a challenge to an oppressive and centralizing Federalist Party led by Alexander Hamilton and President John Adams. Ironically, Jefferson himself was vice president during this time. His rejection of the policies of his old friend Adams would set the stage for a successful rematch with Adams in the pivotal election of 1800.

While Jefferson was clearly the most important figure behind the Principles of '98, including nullification, they came out of a deep American tradition of revolutionary decentralization and disobedience. There were seventeenth-century examples such as Roger Williams, Anne Hutchinson, and John Wise. Late colonial and early revolutionary manifestations of this spirit, during the 1764-76 period, included the Committees of Correspondence, Stamp Act Congress, Sons of Liberty, Liberty Trees and Liberty Poles, Boston Tea Party, Minutemen, Patrick Henry's speech ("Give me Liberty, or Give me Death!"), Gadsden flag ("Don't Tread on Me" rattlesnake), Paine's Common Sense, and Jefferson's own Declaration of Independence.

The confederal and early constitutional period saw the Shays' Rebellion, Anti-Federalist opposition to the newly-proposed Constitution, and the Whiskey Rebellion. All of these signified not only state liberty but also local and individual liberty. In other words, self-government. This was the ideological and historical milieu out of which came Jefferson's attempt to encourage resistance to the Alien and Sedition Acts and other tyranny-inducing, freedom-denying activities of the Adams administration.

In 1798, the Kentucky and Virginia Resolutions were secretly written and advanced by Vice President Jefferson and his ally in the U.S. House of Representatives, James Madison. The resolves were in response to federal laws intended to silence opponents of the Federalist Party. At a time when war with France seemed imminent, three Alien Acts were passed to extend the residency requirement for naturalization and to deport any resident aliens considered "dangerous to the peace and safety of the United States." With newspapers being shut down, and writers and speakers being fined and jailed through federal criminal charges, the Sedition Act was criticized by Democrats for violating both the First and Tenth Amendments. Jefferson and Madison grounded their resolutions in the compact theory, which sees the Constitution as a compact or agreement between the states. Their perspective is significant, given their roles as author of the Declaration and "father of the Constitution," respectively, and as the driving forces behind the Bill of Rights.

In the Kentucky Resolution, Jefferson asserted that the necessary and proper clause was being interpreted by the federal government in such a way that it was leading to "the destruction of all limits prescribed to their power by the constitution." He wrote, "Words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be taken so as to destroy the whole residue of the instrument." Jefferson believed that state governments have a right to interpret the Constitution, arguing "That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress."

Jefferson understood that every state reserved to itself "the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force." His original draft included an explicit mention of nullification: "Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits." The final version of the resolution, enacted by the legislature through the sponsorship of John Breckinridge--future U.S. attorney general under Jefferson--did not contain the words nullification and nullify but ended with the same thought, calling on other states to join the commonwealth of Kentucky in "declaring these acts void and of no force."

The Virginia Resolution--written by Madison in support of strict construction, states' rights, and civil liberties--was guided through the legislature by his cousin John Taylor, the great agrarian philosopher and statesman. Madison argued that the powers of the federal government are derived from the compact between the states and these powers are "limited by the plain sense and intention of the instrument constituting the compact." When powers not granted by the compact are dangerously exercised by the federal government, states "have the right, and are in duty bound, to interpose [intervene] for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them." Always more conservative than Jefferson, Madison had the language "void, and of no force or effect," in regard to the Alien and Sedition Acts, removed from the final version of the resolution approved by the legislature, but declaring the federal laws to be "unconstitutional" clearly implied nullification.

Contrary to the hopes of Jefferson and Madison, no other states joined in the nullification effort. Hamilton viewed the Kentucky and Virginia Resolutions as "a very serious business." Writing to Senator Theodore Sedgwick (F-MA), in early 1799, he claimed that the state actions were an attempt to "destroy the Constitution," evidence of a "conspiracy to overturn the government," and inducement for attack by "a hostile foreign power." He argued that the federal government "must attack and arraign its [domestic] enemies." Hamilton's long-term plan included the raising of a large military force to be sent toward Virginia, at which time measures would be "taken to act upon the laws & put Virginia to the Test of resistance."

While the New England states rejected nullification in 1799, viewing it as a harbinger of insurrection and civil war, this bastion of Federalists changed its tune when President Jefferson pursued policies not to its liking eight years later. The state governments of Massachusetts, Connecticut, and Rhode Island threatened to ignore the Embargo Act of 1807 because of perceived unconstitutionality. Rhode Island, the smallest and most radical state, explicitly used interposition language in its objection.

The War of 1812, symbolizing additional disruption in shipping, was unpopular in New England. States officially resisted federal authority to mobilize the state militias and enforce a new embargo act. Objecting to federalization of the state militia, in 1812, the assembly of Connecticut urged noncompliance, arguing, "It must not be forgotten, that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic."

The following year, Governor Martin Chittenden ordered the recall of that portion of the militia that had been led out of Vermont: "It has been ordered from our frontiers for the defence of a neighboring State, and has been placed under the command and at the disposal of an officer of the United States, out of the jurisdiction or control of the Executive of this State." When the order was delivered, the governor's representative was arrested by federal authorities. Chittenden backed down when a resolution was introduced into Congress calling for charges of treason to be drawn against him.