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Wednesday, September 21, 2011

Nullification: How to Resist Federal Tyranny in the 21st Century

How can Americans restrain an out-of-control federal government that won’t recognize any constitutional limits on its power? In Nullification: How to Resist Tyranny in the 21st Century, Thomas Woods argues that state invalidation of federal laws could be the answer.

First, though, Woods identifies what almost certainly won’t work: trying to effect change by sending different politicians to Washington or by fighting in the federal courts.

Trying to elect a president, senators, or representatives who will respect limits on federal power won’t work because no matter what they promise, politicians inevitably end up pandering to special interests to get campaign contributions and votes.

Trying to get the federal courts to limit federal power won’t work either, because those courts are, after all, part of the federal government. The President and the Senate take great care to make sure they don’t put anyone on the Supreme Court who would stop them from doing whatever they want.

Thus, Woods observes, the federal government gets to decide what the Constitution means and to make its own rules. No wonder it only gets bigger. “If the federal government has the exclusive power to judge the extent of its own power,” he writes, “it will continue to grow—regardless of elections, the separation of powers and other much-touted limits on government power.”

Woods’s solution to this problem is nullification—that is, recognizing the right of state governments to stand up to the federal government by declaring federal laws unconstitutional and refusing to enforce them.

This may sound radical and shocking to Americans who have been taught since grade school that the U.S. Supreme Court is the ultimate arbiter of what is constitutional. But as Woods shows, the concept is not new and was invoked numerous times in the early decades of the country’s existence. For example, in the Virginia Resolutions of 1798, written by James Madison, Virginia declared the Alien and Sedition Acts unconstitutional. Kentucky did the same in its Resolutions of 1799, written by Thomas Jefferson. Both looked to the state governments to protect their citizens from enforcement of the illegal federal laws. And before the Civil War northern states invoked nullification in refusing to enforce the Fugitive Slave Act.

Woods also shows that nullification has occurred more recently. For example, California has partially nullified an unconstitutional federal law by allowing its citizens to use marijuana for medical purposes, even in the face of a U.S. Supreme Court decision, Gonzales v. Raich, that held that the federal drug laws trumped the state medical-marijuana law. As a result of California’s continued defiance the feds backed down, at least temporarily.

To his credit, Woods is no Constitution worshipper. He favors nullification not because he unduly reveres the Founders or believes the Constitution to be divinely inspired but simply because, in his words, “institutional restraints that pit power against power might postpone or hobble a regime’s growth.”

Some readers may be hesitant to embrace a radical “states’ rights” view because of its common association with southern states’ defense of Jim Crow laws.

Woods addresses this by pointing out that the federal government violates the rights of both blacks and whites on a massive scale, with the burden of many unconstitutional interventions, such as the war on drugs, falling heaviest on blacks. He also observes that the federal courts upheld Jim Crow for decades. And he notes that “it is not Birmingham 1963 any longer,” so efforts to return to Jim Crow are extremely unlikely.

Important points, but some readers will want more. Even if Jim Crow won’t come back, people are right to notice that state governments have perpetrated great evils and to be concerned that states might do so again if given the chance. I share Woods’s preference for decentralization, and I have no doubt that he takes these concerns seriously, but the book might persuade more people if it gave more attention to this issue.

Regardless, what strikes one about the book is not what’s missing but what’s there: a wealth of information that teachers in classrooms from high schools to law schools never give their students. Nullification is therefore essential reading for its lessons in history and for showing how libertarians might achieve real-world successes in the years ahead.