Make No Mistake: Nullification Effects Disunion

First as tragedy, now as farce.

RedState is advertising and otherwise boosting a new book by Thomas Woods: “Nullification: How to Resist Federal Tyranny in the 21st Century.”

In the wake of the Fourth of July, it’s only proper to ask: what pale spectre of patriotism is this, that (here and otherwise) dishonors the legacy of our Founders by perpetuating a hopelessly flawed equivalence between those who rail against the actions of a duly constituted government, and those who shed blood against true tyranny? And what cruel mockery is it to, in the same breath, invoke their sacrifices in defense of a concept whose very nature rebuts union?

I’d be tempted to pick up this book, if only for a good laugh, but as noted, the author’s gracious enough to provide a free chapter. Let’s have a look (download here so you don’t have to get on his listserv to read it).

Blissfully, our free chapter provides a fair preview of the author’s argument: nullification, as he imagines it, is a form of judicial review, but without the judicial review. The states decide what laws are unconstitutional, and then ignore them (p. 3). Woods imagines collusion between the three branches of government, and so interposes into the federal separation of powers scheme a fourth actor: states, with an unwritten and absolute veto over the other branches. In support of this power, Woods drafts the entire originalist argument for judicial review (Federalist #78, etc.), but omits the careful balance within which that power is permitted to exist, and which figures prominently in Hamilton’s defense of it. To defend this selective reading, he points us to unattested, unsourced historical counterfactuals (If only Adams hadn’t appointed Marshall! [p. 6.] But he did. Move on.). This isn’t constitutional theory; it’s historical fiction.

Armed with this knowledge, the rest of Woods’ book can be safely ignored, because there are vital questions it cannot (and doesn’t attempt to) answer. Imagine a situation where nullification produces a live, justiciable controversy: Congress constructs a statutory regime creating otherwise valid, constitutional duties, perhaps flowing from state citizens qua their states, or from the state itself, but in either case to the federal government. “SOCIALISM!!!!”, you say. Just so! A state legislature “nullifies” the law, citing constitutional objections, and the state, or its citizens, refuse payment accordingly. The Attorney General sues to collect on the “nullified” obligation. How does a federal court rule? What’s the legal “test” for nullification? When can a state nullify a “bad” law? What makes a law “bad”?

There’s no answer. Nullification is the rare case of a true slippery slope: one cannot draw a principled line, based on objective factors, historical or otherwise, between isolated nullification, and nullification run amok, the import of which is disunion, or at least a shadow of union, at odds with everything we’ve built over the last 234 years. Woods doesn’t even try to solve this lurking problem; in fact, the absence of meaningful review of state decisions seems to be the point. In exchange for the loss of judicial review — which conservatives regularly tell us is its own form of tyranny, due to the awesome, uncheckable power of unelected judges (?) — Woods would give us 50 truly uncheckable supreme courts, lacking any connection to the constitutional text or its history, and bereft of those limits the Founders put on the federal bench, in plain black and white. All because healthcare reform is scary.

I’ll never understand a patriotism that rushes to the flag anytime the state directs her guns outwards, to prosecute enemies real or imagined, but abjures all notions of national fidelity when she turns her attention inwards, to improve the lives of her citizens, just because it might cost a buck or two. At the end of the day, isn’t nationalism at least as much about what we build together, as whom we tear apart?

Well, it should be.

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8 comments

  1. I note Thomas Woods is from the Ludwig von Mises Institute. I guess that’s just the sort of confusion between reality and wishful thinking one has come to expect from the Austrian School.

    On the point about Marshall and judicial review, I wonder if things would really have been much different if, for instance, John Jay had accepted reappointment in 1801. Without diminishing the contributions of Marshall, judicial review was not exactly a novelty in English law, and it’s hard to see Marbury v. Madison having a different outcome.

    1. Very true. Woods’ argument is that Jefferson’s pick, had Adams not rushed Marshall onto the Court by way of a midnight appointment (also, isn’t that wrong? Marshall sat IN REVIEW of the midnight appointments, meaning he can’t have been one himself), was pro-nullification, or state-based judicial review, or whatever.

      Major problem: Spencer Roane, the pro-nullification guy who Jefferson apparently would’ve appointed, never corresponded with Jefferson.

    2. And on a related note, although Woods apparently accepts unconditionally (and sans citation – demerit!) that Jefferson would have appointed Roane had he had the opportunity, that’s questionable at best. According to Jean Edward Smith’s biography “John Marshall”, it’s a theory first suggested by a Professor William Dodd in 1907, but “there is no evidence to support that.” (p. 450, n. 30)

    3. Exactly! And that’s a point he HAS TO WIN — that Adams (1) inappropriately appointed Marshall, and that (2) the alternative was Roane — to support the claim that nullification, despite being part of an alternate history, is the correct constitutional theory.

    4. Yeah, and with Roane also being a flaming anti-federalist and a staunch defender of slavery, that would have been a merry ride indeed. Roane is basically the anti-Marshall, so not just Marbury but everything from the SCOTUS after 1801 goes out the window.

      It’s a classic error in counterfactuals that Woods commits here: Change one thing, but leave everything else the same.

  2. Oh, hey, and one more thing: Woods points to the Kentucky Resolutions as evidence that nullification was a part of Virginian political mainstream (but not American mainstream, which it was definitely not). And of course, the Kentucky (and the Virginian) Resolutions were introduced in response to the blatantly unconstitutional Alien and Sedition Acts. But were it the two state Resolutions that defeated those Acts? No, they didn’t have any effect at all. In the end, it wasn’t state action, but the Democratic-Republican landslide victory in the 1800 federal elections that allowed the new Congress to repeal the Acts.

    Nothing here makes any sense!

    1. (Or rather, they weren’t repealed but allowed to expire without renewal.)

  3. I just seriously cannot get past that they think states should have the ability to nullify and negate federal laws and actions with no checks or appeals. They aren’t claiming they should be able to nullify anything they don’t like; just what is unconstitutional. But who is to be the judge of that? Who is to validate that a nullification is about constitutionality, not merely “dislike”. We have a system in place for that – the federal judiciary.

    Nullification wouldn’t just effect disunion; it would make this country ungovernable. States are not sovereign, and so nullification cannot be.

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