Posted: April 10th, 2010 by Militant Libertarian
Over the past few years, but especially during the past several months, there has been an extraordinary revival of interest in Thomas Jefferson’s idea of state nullification of unconstitutional federal laws. According to Jefferson, if the federal government were to monopolize constitutional interpretation, it would of course interpret the Constitution in its own favor and consistently uncover previously unknown reservoirs of additional federal power. Only a fool would consent to such a system, thought Jefferson, and the peoples of the states were not fools.
Needless to say, nullification is nowhere to be found on the three-by-five card on which our betters have written out the range of allowable opinion, so it has been greeted with the usual hysteria from predictable quarters.
The latest, and to my mind most laughable, example comes from Sean Wilentz, a history professor at Princeton, writing in The New Republic. The subtitle of Professor Wilentz’s article “The Essence of Anarchy” is “America’s long, sordid affair with nullification.” What Professor Wilentz omits in his alleged history of that “long, sordid affair” could fill an entire book, and indeed just weeks ago I announced the impending release of my own book on precisely this subject. (Nullification will cover the origins and theory of nullification, its forgotten nineteenth-century history, modern applications of the idea, and much else.) For now I’ll note the New England states that appealed to nullification (or interposition) against President Jefferson’s embargo, against what they considered the unconstitutional calling up of the New England militia during the war of 1812, against the use of military conscription, and against a law providing for the enlistment of minors.
Pretty “sordid,” huh?
In addition to other examples, we might also refer to the legislature of Wisconsin, which as late as 1859 was quoting from Jefferson’s Kentucky Resolutions of 1798 in opposition to unconstitutional aspects of the Fugitive Slave Act of 1850. Sordid, I tell you. Here’s the text of a handbill that circulated in Milwaukee in the 1850s:
All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom — the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY — as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 1850, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS’ HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o’clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand.
What’s that? A “state league” to defend “state sovereignty” on behalf of human freedom against the “flagrant usurpations” of the federal government? How sordid!
Do you suppose Professor Wilentz teaches that at Princeton? Does he even know about it?
What Professor Wilentz also omits, and perhaps doesn’t know, is that abolitionists who opposed the Fugitive Slave Act of 1850 expressly endorsed nullification and even referred to John C. Calhoun by name in support of their ideas. A shame Professor Wilentz wasn’t around to tell them that only a “racist” would refer to the wicked Calhoun, and that mature adults should never be allowed simply to consider his ideas on their merits.
Wilentz spends some of his time giving us a 60-year-old interpretation of the Virginia and Kentucky Resolutions of 1798, where nullification and interposition were first expressly advanced, as if no scholarship had appeared since then. He tells us that Jefferson was “in a panic” when he drafted the Kentucky Resolutions. In other words, Jefferson wasn’t really in his right mind, so we can excuse him for dreaming up crazy constitutional ideas that irritate Princeton professors.
Whether he realizes it or not, Wilentz is here repeating the thesis of Adrienne Koch and Harry Ammon, from their 1948William and Mary Quarterly article “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties.” Koch and Ammon suggest that nullification was really just an ad hoc response to an emergency situation rather than an enduring constitutional doctrine in its own right.
Unfortunately for Wilentz, the subject has been explored a teensy bit further in the six decades since then. As Kevin Gutzman shows in his book Virginia’s American Revolution: From Dominion to Republic, 1776–1840, Jefferson did not invent nullification in a moment of haste. The germ of nullification is directly traceable to the Virginia ratifying convention of 1788 (and indeed even into the colonial period). There, supporters of the Constitution insisted that the federal government would possess only the powers “expressly delegated” to it, and that Virginia would be “exonerated” should the federal government ever reach for a power beyond those delegated. Edmund Randolph and George Nicholas assured Virginians of these principles in so many words. Both men served on the five-man committee that was to draft Virginia’s ratification instrument. Randolph went on to serve as U.S. attorney general, and Nicholas as attorney general of Kentucky.
Throughout the 1790s, Virginians kept returning to the assurances they had been given in 1788. To give just one example: appalled by Alexander Hamilton’s financial program, and particularly the federal assumption of state debts, Patrick Henry introduced a resolution, passed by the Virginia legislature, that cited Hamilton’s program as an example of precisely what Virginians had been assured could not happen — the exercise by the federal government of a power it had not been delegated. Henry reminded his fellow Virginians that they had been sold the Constitution on the grounds that the federal government would have only those powers expressly delegated to it, and that the state government would be a sentinel watching over federal officials and remaining on guard against federal encroachments. Is that really so far from what Jefferson would later say?
By the time Jefferson drafted the Kentucky Resolutions of 1798, therefore, he was merely developing these longstanding principles. He certainly was not spinning out an ad hoc response. Much less was he acting merely “in a panic.”
My favorite part of the whole piece comes when Wilentz offers us this aside: “Madison also wrote of nullification that ‘[n]o man’s creed was more opposed to such an inversion of the Repubn. order of things’ than Thomas Jefferson’s.”
Folks, Wilentz may not know it — and the automatons posting the fawning comments at the New Republic‘s site obviously don’t know it — but that remark alone proves he has no idea what he is talking about. First of all, Madison’s statement about Jefferson is clearly false, as any competent historian knows. Jefferson included the very word “nullification” in his draft of the Kentucky Resolutions of 1798! How can Wilentz, a Princeton historian, not know this?
But here’s the real kicker. Wilentz neglects to mention that the elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.
You see what this means? Nearly 180 years later, Sean Wilentz is still trying to defend a claim that Madison himself withdrew. Whether that speaks poorly of Wilentz’s honesty or his competence is something only he himself can know.
As for Madison’s claim at an advanced age that the Virginia Resolutions had never contemplated nullification, and Wilentz’s related claim that nullification supporters wickedly and perversely misinterpreted Madison, my book addresses this point directly. For now we might note that (1) the other state legislatures understood Madison at the time as saying precisely what Madison (and Wilentz) later tried to deny he was saying; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state as supporters and opponents alike took him to be saying at the time.
Faced with a bipartisan, cross-ideological push for the decentralization of political power, all Sean Wilentz can think to do is — you’ll never guess! — revive the specter of 1950s resistance to civil rights. Few today would defend the indignities to which American blacks were subject at that time, though it seems safe to assume that the grievances of civil-rights activists would have been greatly alleviated from the start had the constitutional remedy of enforcing the Fifteenth Amendment been actively and consistently applied. But I wonder if, just as Wilentz expects us for that reason to repudiate the principle of decentralized power, we can expect him to denounce his own beloved federal government — after all, didn’t Woodrow Wilson’s decision to enter World War I lead to the deaths of 116,000 Americans for no good reason? Weren’t Japanese individuals rounded into detention camps in the 1940s? (Incidentally, I wonder how “sordid” it would have been had California and Washington state interposed to prevent the internment of these poor souls.)
And really, even Wilentz’s acute hypochondria would presumably stop short of declaring that the fourteen states allowing medical marijuana in defiance of the federal government’s prohibition must be a bunch of “racists” who secretly aim to oppress people. California is even considering legalizing marijuana across the board — a clear act of nullification. What, pray tell, does this have to do with race? May it be possible that people who advocate decentralized power might actually favor — wait for it — decentralized power? Or do we automatically assume that their stated principles conceal a sinister conspiracy to oppress, even though centralized power is what made possible the unprecedented oppressions and atrocities of the twentieth century?
To be sure, Wilentz grudgingly concedes that nullification supporters are “not currently concerned with racial supremacy” (notcurrently concerned, you understand — you never know what people who don’t subscribe to The New Republic may think of next). But then why smear them by writing an entire article on the subject that never soberly considers the relevant questions on their merits, and instead associates the idea exclusively with racial oppression? Hitler despised states’ rights; does that make him a model of enlightenment and toleration?
Wilentz is not entirely wrong, of course. Dangers exist at all levels of government. Libertarians understand that better than anyone. The question that supporters of the states against the federal government are asking today is this: right now, where are the greater threats to our liberties liable to come from, Utah or D.C.? I cannot come up with an adequate word to describe someone who, having observed the enormities of twenty-first-century Washington no matter which party is in control, is more concerned about the potential for abuse of power in Boise or Santa Fe.
I suppose I don’t need to tell readers what we are all supposed to do now that Professor Wilentz has handed down his ex cathedra pronouncement, but I’ll tell you anyway. We’re supposed to abandon all non-approved opinions forthwith; promise in the future to run everything by Sean Wilentz first, lest we incorrigible haters fall back into our wicked ways; and show proper remorse for having disturbed our left-neocon overlords at The New Republic. Here they are trying to drum up another round of war propaganda (which has nothing to do with hatred, you understand), and we have the gall to distract them with Thomas Jefferson!
Oh, and Sean: nobody buys the “racism” smears anymore. No one in his right mind believes, with Keith Olbermann, that people who drive pickup trucks are likely to have sinister intentions, or that “arrogant” as an adjective to describe Barack Obama is a “racist code word.” That game is over. The non-zombie population, which is growing all the time, just tunes it out. At this point, “racist” now encompasses, at the very least, the Tea Party, the GOP, constitutionalists, libertarians, anarchists, anyone who has ever said a kind word about the South (since what reason other than “racism” could anyone have for doing that?), anyone who opposes Obama, and anyone who opposes health mandates. That pretty much leaves, as a working definition for “racist,” someone who doesn’t subscribe to The New Republic.
All these groups I’ve just mentioned probably amount to more than half the country. If the American population is so full of “hatred” and “racism” that every other person is liable to be a Klansman, I wonder if Professor Wilentz can explain to us why he favors open immigration. Doesn’t he instead have a moral obligation to warn potential immigrants to stay away from such a cauldron of “hatred”?
Supporters of nullification today, says Wilentz, “take refuge in a psychodrama of ‘liberty’ versus ‘tyranny.'” He then says that the constitutional doctrine they promote would allow “racial segregation and inequality up to the point of enslavement.” So people who are concerned about a government that makes up the rules as it goes along are engaged in “psychodrama,” but people who think the repeal of the Thirteenth Amendment is likely enough to be worth mentioning are the very model of reason.
Sean Wilentz is supposed to be a great Princeton professor. He is a reliable court historian of the regime (which by some definitions may indeed make him a great Princeton professor). He thinks he can parry opponents of the central government by means of distortions, omissions, outright falsehoods, hysteria, and name-calling. This is the best the Establishment can do against nullification? Professor Wilentz’s poor students should demand their money back.
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