by Thomas Woods, LewRockwell.com
To the casual eye, Kevin Gutzman has written a scholarly book about Virginian political thought and practice from revolutionary times through 1840. But its scholarly merits do not exhaust the merits of Virginia’s American Revolution: From Dominion to Republic, 1776-1840. Readers are also treated to the incidental pleasure of watching the Straussian rendering of American history dismantled piece by piece.
As that version would have it, the United States was formed by a single American people in the aggregate and is not and never was a compact among sovereign states. The states are necessarily subordinate in their relationship with the federal government, never having enjoyed independent existences of their own. They possess no corporate mechanism by which to resist federal usurpation, and they are bound to accept the federal government’s monopoly on constitutional interpretation.
Gutzman begins his story in the 1760s, as the controversy with the mother country is growing more and more intense. Richard Bland, who served in the House of Burgesses, began his 1766 pamphlet An Inquiry into the Rights of the British Colonies by revisiting his colony’s early history. In coming to these shores, he said, Virginia’s settlers had availed themselves of the natural right to emigrate. They had come to a new land at their own expense, and were no longer subject to English law, having fallen under the “Law of Nature” instead.
That meant Virginians had been in a position to enter, of their own free will, into a mutually binding relationship with the Crown, which they subsequently did. They expected future kings to abide by James I’s promise that Virginia’s form of government would never be altered. Virginia could be taxed only by its representatives, and possessed “such Freedoms and Privileges as belong to the Free People of England.” The Crown had repeated this guarantee numerous times, said Bland, in its commissions to Virginia’s royal governors.
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Thomas Jefferson lent his own support to this narrative in his Summary View of the Rights of British America, but as Gutzman observes, there is “virtually nothing in Jefferson’s Summary View that Mason, Bland, Carter, or the Burgesses had not said before.”
The preamble to Virginia’s republican constitution of 1776 spelled out Virginia’s understanding of its legal status before the world, as it had been explicated by Bland and Jefferson. Virginia had the exclusive authority to govern for Virginia. The king, meanwhile, had unjustly refused to accept a position as head of a great commonwealth of dominions tied together by a common loyalty to his dynasty.
The grievances listed in the preamble revolve almost entirely around the issue of self-government – economics barely appears; religion, not at all. That self-government was later reaffirmed in the Articles of Confederation, Article II of which described the states as having maintained their “sovereignty, freedom, and independence.” Virginians were persuaded to adopt the federal Constitution in 1788 on the grounds that that sovereignty would hardly be affected by the proposed confederation.
With all the emphasis that is normally placed on the Constitution’s Framers, we are apt to neglect the importance of the ratifiers, for it is they whose interpretation of the Constitution – and in particular, the precise nature of what they believed they were getting into – is of ultimate importance. And here is the heart of Gutzman’s argument.
At Virginia’s ratifying convention, the concern was raised that phrases like “general welfare” could be cited by ambitious politicians who wanted to exercise powers beyond those outlined in Article I, Section 8 of the Constitution. Federalist Edmund Randolph, who had been Virginia’s attorney general for the past decade, assured everyone that his fears were unfounded, for all rights were declared in the Constitution to be “completely vested in the people, unless expressly given away. Can there be a more pointed or positive reservation?”
In other words, this was a strictly limited and federal government.
George Nicholas, who would become Kentucky’s first attorney general, explained:
If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.
Randolph and Nicholas belonged to the five-man committee that was to draw up Virginia’s ratification instrument. They were in a unique position to articulate the understanding that would govern Virginia’s ratification.
Virginians kept this limited view of the Constitution and the federal Union very much in mind into the 1790s. Disturbed by Alexander Hamilton’s financial program, particularly the federal assumption of state debts, Patrick Henry drafted a resolution for the Virginia legislature in which he borrowed from the language of the assurances of Randolph and Nicholas that the federal government would have only those powers expressly delegated to it. The House passed it that day, the Senate six weeks later.
Shortly after Henry drafted his resolution, a General Assembly committee issued a report about the Washington Administration’s policies, which it found alarming. It declared (borrowing from Randolph and Nicholas) that the states were “contracting parties” whose rights were “sacred.” It insisted, echoing Randolph, that “every power not granted [to the federal government] was retained” by Virginia.
What this means, Gutzman explains, is that
Nicholas and Randolph’s explanation of the Constitution, and thus of the significance of Virginia’s ratification, had come to be seen as completely authoritative by the overwhelming majority of Virginia’s political leadership. As in the Imperial Crisis and the Confederation period, Virginians conceived of their interstate union as precisely a federal union, a union among parties that were somehow on an equal footing (as Nicholas had put it, thirteen contracting parties). Virginia, not America, remained the primary political unit, the United States Government a convenience.
Virginians continued to draw out the implications of these views over the course of the 1790s. According to John Taylor of Caroline, the great Virginian political pamphleteer, “The confederation is not a compact of individuals; it is a compact of states.” It was therefore the responsibility of the state legislatures to monitor the federal government and, if necessary, to prevent the enforcement of laws that violated the Constitution.
Constitutions are violated, Taylor said, and it would be absurd to expect the federal government to enforce the Constitution against itself. If the very federal judges the Constitution was partly intended to restrain were the ones exclusively charged with enforcing it, then “America possesses only the effigy of a Constitution.” The states, the very constituents of the Union, had to do the enforcing.
So by the time of the Virginia and Kentucky Resolutions of 1798, whose doctrines of interposition and nullification held that the states could refuse to enforce any federal law they considered unconstitutional, there was nothing new or unusual about such a view. It was merely the logical implication of assurances by Federalists at the ratifying convention, assurances that had dominated Virginia’s constitutional thought in the ensuing decade.
Those resolutions, in other words, “floated like leaves on the stream of the Virginia constitutional tradition of Jefferson’s A Summary View of the Rights of British America, Richard Bland’s An Inquiry into the Rights of the British Colonies, John Taylor’s pamphlets of the 1790s, and the Richmond Convention’s instrument of ratification (as explicated by George Nicholas and Edmund Randolph).” In form and content they belonged to the tradition of Patrick Henry’s Stamp Act Resolves and his General Assembly Resolution of 1790.
Historians had sometimes claimed that Jefferson, the anonymous author of the Kentucky Resolutions, hastily devised nullification as an ad hoc response to the Alien and Sedition Acts’ assaults on civil liberties. But as Gutzman shows, nullification, Jefferson’s proposed remedy, was in fact the culmination of a decade’s worth of Virginian political thought traceable to the ratifying convention. There was nothing ad hoc about it.
The principle of local self-government and against interference from distant central authorities was central to Virginian political thought both before and after the War for Independence. This is a key point of continuity between late colonial Virginia and the Virginia and Kentucky Resolutions of 1798. “As during the Imperial Crisis, so after the enactment of the federal Constitution, Virginians put their state first and the distant authority they had erected for their state’s convenience – formerly in Great Britain, now in the federal capital – somewhere down the list.”
Now if someone were to try to use this history as an argument in support of states’ rights today, or more generally on behalf of the compact theory of the Union, one can imagine a predictable response: Virginia was only one state, and its ratification debates do not authoritatively bind others in their own interpretations of the Constitution and the nature of the Union.
Gutzman has anticipated this reply, and has elsewhere answered it – persuasively, to my mind. Since Article II of the Articles of Confederation declared the states (including Virginia) to be sovereign, and since the delegates to Virginia’s ratifying convention explained to the people of Virginia that their state was one of thirteen parties to a compact from which they would be exonerated if it exceeded its delegated powers, then how could other states lack such a status themselves? If we accept the co-equality of the states as a constitutional principle – that is, some states cannot have more or different rights than others – then no other conclusion seems to follow, even if other states may have understood the nature of the Union differently at the time they entered.
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In light of all this, one can imagine Gutzman’s opinion of the centralizing John Marshall, but Marshall figures little in this book, which focuses primarily on Virginia’s experience rather than on the Union as a whole. For Gutzman on Marshall, see his excellent book The Politically Incorrect Guide to the Constitution.
In short, Virginia’s American Revolution is not only an invaluable contribution to the scholarly literature, but it is also a treasure trove for those who would recapture the original American republic.
Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.
Copyright © 2008 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
May 15th, 2009 at 6:28 am
I am still not 100% there with Gutzman and his followers. I agree it is absurd to think that the federal government should have the ultimate say on the propriety of everything it does. Obviously, it would be a power unchecked.
I agree that nullification is a concept discussed back then, that it was used to convince ratifiers, and that it has some appeal to it. I am also aware that states used nullification as a remedy for their grievances against the federal government.
But, so far, in the articles I have seen, neither Gutzman nor any other nullification proponent addresses the question that necessarily arises about nullification.
Just as it is absurd to believe the ultimate authority in all matters lies with the federal government, it is, in my opinion, just as absurd to think that nullification can be used at will and whenever the states please.
Just as federal supremeacy would be, as was stated, an “effigy of the Constitution,” an unbridled right to nullification would also be an effigy.
Now, I admit the Constitution seems very silent on this issue. I do not think that the nullification proponents or the federalists will find their answer within it.
I think this issue was a gap that was purposefully left in the Constitution because nobody was going to grant federal supremacy over matters of state concern, and likewise, nobody was going to grant state supremacy over matters of federal concern.
So, when you have the argument over whether something is a federal or state concern, you necessarily get caught in this “no man’s land” that is a gap that everyone knows is there but can do nothing about. The principles collide in this area, and there really is nothing we can do about it, except to see who gets their way in the end.
May 15th, 2009 at 6:46 am
“Law of Nature”, what is that? I think I like it, but then I’m not sure…I wish the arguments were made simpler so the bottom dwellers(me) could understand.
May 15th, 2009 at 7:03 am
The situation I described above is played out in modern times by our very own federal government. To be sure, all you have to do is recall that Bush went against the UN, and Obama, during his campaign, said he, as President, would have a right to ignore the UN as well (As I recall, Obama made the comment to George Stephanopoulos regarding attacks on al Qaeda in Pakistan).
So, here we have the federal government nullifying the UN’s decisions. You will find it interesting to note that, though written in modern terms, the UN Charter is quite similar to the US Constitution. The relevant Charter provisions follow:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
So, there you go. Every time you have this “sovereignty” vs. “federalism” paradigm, you will have this issue of nullification pop-up. Our federal government will ignore the UN Security Council when it deems it necessary to do so. But I doubt you will ever hear the President say he can ignore the UN as he pleases. It’s always some matter of “grave concern or importance.”
Of course, where does it say in either the US Constitution or UN Charter that the organization may be ignored by a member in matters of grave concern of importance? It does not say that.
Anyway, the point here is that there is no articulable “right” answer. It’s a flaw inherent to the construct of federalism.
One thing to keep in mind is that it would be hypocritical for the federal government to say states have no nullification rights when the federal government nullifies the UN’s Security Council decisions, which are founded on the exact same principles of federalism.
May 15th, 2009 at 7:05 am
Casey, the “Law of Nature” is a trumped-up concept to glorify “Your Conscience.”
May 15th, 2009 at 7:18 am
Jeff Matthews’ problem is not with me, it is with the Federalists in the Virginia Ratification Convention. They are the ones who said that the Federal Government would have only the powers they were expressly delegated, not I. They are the ones who said that Virginia could reclaim the powers it was granting to the Federal Government via the Constitution if the Federal Government attempted to impose conditions upon them to whch they had not agreed, not I. I am Your Humble Historian.
As to nullification, please read ch. 4 of _Virginia’s American Revolution…_. As you read it, ask yourself what you would have done if you had been in the position of the Jeffersonian Republicans of 1798: criticizing the Adams Administration, its allies in Congress, and/or the federal courts had been made a felony; numerous leading newspaper editors, including the editor of the biggest paper in America, had been fined or imprisoned for criticizing the Adams Administration; Federalists were talking about using the newly expanded army to invade Virginia and put down the Republican majority; a Republican congressman had been imprisoned for criticizing the president; and vice president Jefferson was afraid to send his thoughts through the U.S. Mail, because he thought the Federalist postmasters were probably reading his mail.
What should they do? Just sit back and accept a military dictatorship? Say, “Oh, well, if the majority of states like this, it’s acceptable”? What?
May 15th, 2009 at 9:24 am
Why would the idea of nullification be an “effigy” as Mr Matthews states? In nullifying federal laws they believe to be unconstitutional the states would be operating under a system similar to how the modern capitalist system would operate without the interference of excessive governmental regulation. States that passed laws that were detrimental to fundamental human liberty would be punished by lower tax revenues as it’s citizens or business base moved to states where more freedom exists or where their personal beliefs are better represented, just as consumers have the right not to patronize businesses that perform their intended service poorly or charge exorbitant fees. This would be the check against the states becoming overly tyrannical as well as allowing the states to experiment more freely with differing ways of accomplishing desired goals and also make the states more representative of their population
May 15th, 2009 at 9:33 am
I think the important point is understanding the true “makers” - the ratifiers - of the Constitution. There was quite a bit of fear that the new constitution would give far too much power to a general government, and the people, through their states, only ratified it once Federalist proponents of the Constitution explained over and over again - in newspapers, in ratifying conventions, and the like - that the federal government would have only those powers expressly delegated to them.
I believe nullification to be one of the best means to bring the federal government in line. And, we can see just how effective it is in modern times too. Real ID - in 2007, states started issuing non-binding resolutions that they wouldn’t implement the law, and so many did it (and meant it) that the Bush administration had to postpone it not once, but twice.
And in 2009, more states are getting on board with this - practical ‘nullification’ of this law is driving the Obama administration to talk like they might scrap it altogether.
Nullification is a peaceful way of checking the federal government without having to resort to the extreme step of secession. It’s the true middle ground that the people can take.
May 15th, 2009 at 9:37 am
Cory - great analogy. Competition always raises quality and lowers cost. If one state becomes too tyrannical, they’re going to lose not only people and supporters, but revenue.
Through the process of nullifying unconstitutional federal laws, certain states will develop a strong reputation for freedom and protection of liberty. Those, I believe, will be the ones that thrive, and will encourage the others to do the same.
May 15th, 2009 at 9:44 am
Let us assume that the arguments for nullification are correct and that the States may ignor all federal statutory or decisional law they deem to be in contravention of the Constitution. (Article VI argues against this, but let that go. I express no opinion, I mention it merely because it must be addressed in any argument for nullification.) The REAL issue is will the federal government assent to State nullification of its powers?
Here there can be NO question: The federal government (judges/executive) will send out the marshalls to enforce its decrees State protests to the contrary notwithstanding. Don’t believe me, just try not paying your income tax. Nevermind the 16th was never lawfully ratified. Forget the tax code doesn’t define “income.” You’re going to federal prison just as fast as they can process your case and papers.
Thus,while questions of nullification are a nice academic exercise, unless and until the States possess sufficient moral courage and resolution to secede and are willing to take up arms (defensively, of course) to back it up, we are just blowing smoke.
Now, prove me wrong if you can.
The time for talk about States’ Rights is over. We have only those rights fed-gov whims to acknowledge. We must talk about Secession. All else is just so many empty words.
Blessings,
May 15th, 2009 at 9:47 am
PHL - you must’ve forgotten about Real ID.
Did the federal government send in tanks to force Maine, and Utah, and other states to implement that unconstitutional National ID card? Nope.
They backed off. Twice.
That’s how nullification, when properly applied, actually works.
It’s peaceful, it’s effective, and it’s empowering.
The real ID story isn’t done yet, but I think we can see a good blueprint for resisting this out-of-control federal government.
May 15th, 2009 at 9:54 am
Perhaps there are some areas where the State cooperation necessary to impliment federal law makes nullification work. But when the State of Alabama acting through Chief Justice Roy Moore wanted to display the 10 Commandments in the entrance to its Supreme Court Building, the case was completely different. Resistance would have been promptly followed by arrest warrant for contempt of court, etc. Same with thousand of schools districts nationwide that want to teach Intelligent Design, or open the school day with prayer, prosecute sodomy, or illegalize elective abortion. In the end, it is the moral resolution to resist even though it come to arms alone that can nullify a usurping federal power.
May 15th, 2009 at 9:58 am
You are right Mr. Patrick Henry. As far as “people & business” moving from state to state, let’s salute North Korea, former USSR, former Romania, China and soon New York & Jersey. But I’m still reading the posts.
May 15th, 2009 at 10:22 am
Patrick Henry Lives is wrong: Article VI does NOT militate against the idea that a state may refuse to follow unconstitutional federal policies and/or decisions; in fact, Article VI arguably REQUIRES states to ignore unconstitutional federal decisions, and to follow the Constitution instead. To say that Article VI requires obedience to unconstitutional policies is to equate officials’ decisions with the Constitution, and ultimately to elevate those officials above the Constitution. That is in fact a fair description of the system we live under.
He’s right, though, when he says the Federal Government has the force on its side. That’s why nullification is generally a non-starter — a theoretical issue.
May 15th, 2009 at 10:24 am
Another way that would help adjust the balance of powers is a Constitutional Convention to propose amendments stripping the federal government of its usurped powers. Two of the big mechanisims by which the federal government has nullified the 9th & 10th amendments (now there’s nullification for you!), is the commerce clause and the 14th Amendment. By ignoring original intent of these provisions, they have “federalized” everything! An amendment that might correct this could look like this.
AMENDMENT TO THE UNITED STATES CONSTITUTION
“The Constitution and laws of the United States shall be interpreted and enforced according to their original intent at the time of enactment, and not otherwise. The The Bill of Rights shall not be deemed to have been incorporated in the 14th Amendment, nor otherwise made application against the States. The power conferred upon Congress by Article I, Section 8 to regulate commerce among the several States is limited in terms to its power to regulate commerce with foreign nations. What Congress cannot legislate as to foreign nations, it cannot legislate as to the States.”
An amendment substantially in this form would give life back to the 9th & 10th amendments. First, it would require that they be interpretted and enforced as intended when enacted, whereas now judical usurpation has made them dead letter. Second, it would make original intent the only enforceable interpretative principle, ending judical activism. Third, the doctrine of incorporation would be specifically repudiated, so that the “privacy” the court finds under the 4th Amendment cannot be applied against the states to conjure up a right of elective abortion, or other usurpations upon the right of the people and states to decide basic questions of morals for themselves. Fourth, the commerce clause is now interrpretted to confer practically unlimited power upon Congress. However, by its express terms the power conferred under the Constittuion as to the states is not greater than as to foreign governments. environmental regluation, labor legislation, gun control, drug laws, and a million other intrusions micromanaging state affairs would thus be eliminated and the power returned to the people and the states.
May 15th, 2009 at 10:37 am
Oh yeah, and just to be sure that nullification does work, any amendment should include a clause saying “The States shall power to enforce this provision by appropriate legislation.” Just like Congress got tacked on at the end of the 14th!
Live free or die!
May 15th, 2009 at 11:03 am
I can see the debate of “what exactly did he mean” between the 12 tribes of Israel and Egyptian delegates as they sat down to dissect Moses Ten Commandments.
May 15th, 2009 at 11:05 am
Laws and words and Constitutions don’t have “intent”, just “meaning”. Only people have “intent”.
You need to define *who’s* intent is to be followed. And there’s a big problem there. There’s no unified intent among everyone or even really a majority of those involved in the writing and ratification of the Constitution. There is only politics as usual.
James Madison was (at least arguably) the author of the majority of the Constitution as it exists today, and he was a firm believer in a strong federal government that could overrule the states. Should his intent be given preference?
Virginia, as you point out, was a state that largely firmly believed in state sovereignty. Other states had different opinions as to the intent.
Even within the legislature of Virginia, however, there were both proponents and opponents of a strong federal government. The majority, it would seem, were against a strong central government, but yet strangely they were not the only ones that voted for it (nor, indeed, were all those that voted *against* it in favor of a strong federal government… many felt the Constitution was giving up too much). Everyone that voted for it thought that the words of the document were at least acceptable to their intent.
Trying to draw any one “true” intent from that maelstrom is exactly how we ended up in this mess. People seem to think that the Supreme Court has gone against the intent of the framers, but actually what they have done (95% of the time) is to have a different opinion about that intent than those who favor strong states rights.
I can’t think of a single instance (though I’m sure there are some) when an argument in the Supreme Court declared something like “No, the framers intended this phrase to mean one thing, but they were wrong. We’re going to ignore their intent and choose to read the Constitution and do what we think it *should* have been intended to do”.
Indeed, every single time, they dredge up an argument about how (some subset of) the framers intended this or that, and therefore, blah, blah, blah, we get to do what we really want to do.
If we want a concrete Constitution that is not susceptible to twisting, I will argue that we need to get *away* from intent arguments and just accept that the wording of the Constitution was the best compromise that the various parties at the time could agree on as expressing something acceptable to their (varied) intents. I.e. focus on the words, with their original meanings, not the various political forces that pushed them one way and then another.
This might not end up with an interpretation that reactionaries of today would like, but at least it will end up with an interpretation based on something at least reasonably objective.
May 15th, 2009 at 11:51 am
Yes, the words used are the best way to interpret intent. The normal meaning of words must be honored. Some words have established meaning and usage which must guide our interpretation, like “privileges and immunities” or “equal protection” and “due process.” These are not amorphus terms that can just be helter-skelter bandied about, but have accepted meanings at the time of enactment. Due process always was procedural, not substantive. Equal protection always embodied certain basic rights, like the right to own property, enter contracts, give testimony, sue and be sued, etc. It did not mean the right of women to equal pay, or a certain percentage of jobs, or to carry a gun and go to war. It did not mean the right of homosexuals to commit sodomy. It did not even guarantee the right to every citizen to vote! In colonial America, voting was a right tied to ownership of property, since it was your money that was being effected by taxation. All this to say, that while we cannot litigate the specific intent of every legislator involved in the ratification process, we can and must honor established and accepted usages at the time of enactment, something that activist judges hate and abhor. Hence, the 9th & 10th amendments have been rendered dead letter.
May 15th, 2009 at 11:54 am
Besides, you are missing the point. Was it the intent of the 14th Amendment to incorporate the Bill of Rights and make them applicable against the States? That is the question. Here, there can be NO doubt. The Bill of Rights was never intended to be applied against the States. End of discussion.
May 15th, 2009 at 1:52 pm
My point was not to suggest Gutzman is wrong. It was to point out that nullification presents only one side of the coin.
It is quite clear to me, and so I’ll say it again, “In ratifying the Constitution, nobody could have rightfully believed that (1) the states could nullify any federal act it wanted to for any or no reason at all, and (2) the federal government could enact any law it wanted to for any reason or no reason at all.”
The question nobody can answer is, “When is a subject exclusively a state issue, and when is it exclusively a federal issue?” Some subjects offer fair clarity, whereas a great many are not so clear.
My point might be the subject of argument, but to watch each of you debate back and forth about the application of Constitutional provisions only proves my point. The overlap, or at least arguable overlap, is the point of contention.
There is no answer in this quagmire. In this area of controversy (as to whether a matter is within state or federal jurisdication), nullification is a response to lack of a clear answer. It is a claim of right. It does not, once and for all, settle the argument.
So, yes, nullify all you want. But just know that doing so does not make the nullifier right. It is an act of a claim of sovereignty from a purported ruler. That’s all it is. Sometimes, the rebel wins; sometimes not.
It’s no big deal, though. I still remain a strong advocate that more control should lie with the states than the federal government. And I would still back nullification if that is what is necessary.
I just want to point out that there is no “Natural Law” or principle out there in the ether somewhere that lets us turn to page xxx and see that nullification is inherently “right” as regards a certain matter of controversy.
Nullification is an act used to disobey or refuse to disobey something we don’t like. That’s all there is to it. It is not complicated. To the contrary, it is rather simple and limited.
There really is no point in arguing about the topic. The real deal is that when enough people want to rebel, they will. You must give them a good reason. To argue that nullification is a right, and therefore, a reason to rebel is much like saying, “Let’s rebel just to rebel.” It is the underlying reason that matters. Conversley, it is funny to hear the establishment contend there is no inherent right to rebel. Obviously, they disagree with the rebels.
May 15th, 2009 at 2:59 pm
Well, one thing’s for sure - I’m quite happy to see resistance to federal violations of the Constitution growing. Whether it’s real id, or sovereignty resolutions, or firearms freedom and the commerce clause. It’s all bringing this issue to regular people and getting them informed on how things should work - as opposed to how they are.
May 15th, 2009 at 3:10 pm
Amen to that! Hey, I just saw Gutzman on Glenn Beck. Very cool!
May 15th, 2009 at 3:22 pm
Kevin Gutzman said, “Jeff Matthews’ problem is not with me, it is with the Federalists in the Virginia Ratification Convention. They are the ones who said that the Federal Government would have only the powers they were expressly delegated, not I. They are the ones who said that Virginia could reclaim the powers it was granting to the Federal Government via the Constitution if the Federal Government attempted to impose conditions upon them to whch they had not agreed, not I. I am Your Humble Historian.”
I wish I could highlight the relevant portions of your quote (idea for Michael). Anyway, Kevin. There are two phrases in your post that highlight the controversy.
The first is, “… the Federal Government would have only the powers they were expressly delegated.” Clearly, the Federal Government maintains they are acting within their express powers. It’s just that many will disagree. So, all this does is highlight a controversy. That the feds said you can nullify any of our excesses does not translate into a necessity on the part of the feds to recognize or accept an act of nullification. If the feds contend they are not usurping, obviously, they will contend there is no right to nullify.
The second phrase you used was, “if the Federal Government attempted to impose conditions upon them to whch they had not agreed…” Obvious, the word, “if” connotes a condition. Same point…. If both sides disagree as to whether that condition exists, you cannot expect one side to just cave-in and recognize of accept the other side’s position.
For these very reasons, you will note that the first page on my site contains a picture of Texas’ “Come and Take It!” flag. That’s the true essence of nullification.
May 15th, 2009 at 3:46 pm
We need a plan of action. Tea Parties and Resolutions vent anger and express outrage, but don’t accomplish a whole lot. With 35 States considering 10th Amendment Resolutions, that is enough to get a Consitutional Convention where some real solutions can be proposed and returned to the State legislatures for debate and ratification.
The John Birch Society has traditionally warned against a Convention because of the lack of precedent and fear “anything could happen”, but I disagree. It is clear that our lack of action has brought us to a crisis. We must act now while we still can, before North American Union, before the dollar collapses, before socialized health care, etc. Glenn Beck and others interested in reducing the power of the Federal Government need to get more specific and offer ideas more tangible than “9/12″. Convention Now!
May 16th, 2009 at 5:41 am
Most Americans agree government Officials do not honor their Oath of Office. OK, then why discuss any other political issue?
Political issues are like carrots dangling if front of a donkey citizenry. The donkey will never catch the carrot; neither will the citizenry resolve any political issue, except the Oath of Office.
Allan
May 16th, 2009 at 6:27 am
Casey T. asks: “Law of Nature”, what is that?
In my research on Thomas Jefferson, I see terms like ‘natural law’, natural rights’, etc. show up alot. Which then sends me back to ancient Greek concepts, philosophy, etc., which Jefferson studied. JM’s reply seems to hit the nail on the head, but I’m still in process on following this concept.
May 16th, 2009 at 6:07 pm
Let’s see – the Oath of Office says all elected Officials and all Judges are to support Jefferson’s words and or works, hmm.
All copies of the constitution’s Oath of Office I’ve ever read say to support “this Constitution”. Why all the talk about Jefferson, if not to mislead?
Allan
May 16th, 2009 at 7:35 pm
Trust me. “Natural Law” is meaningless. Here is where Justice Bradley wrote his concurring opinion in Bradwell vs. Illinois, a US SCt case where Myra Bradwell claimed Illinois violated the 14th Amendment by denying her a law license because she was a woman. You will see Justice Bradley relied on this so-called “Natural Law” as follows:
Justice Bradley, Concurring:
“…On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.”
Now, what do you think about “Natural Law?”
May 17th, 2009 at 2:28 am
Jeff,
Do I even need to reply!!
Obviously, in this case, I think it’s a crock…but as it happens, I’ve read Myra’s biography, and in fact one reason I started my website/blog was b/c, among other things I wanted to write about her. Right now I’m just excited that I’ve come across someone who even knows who she is!
Myra was up against a Boys’ Club alright, and I contend that Justice Bradley was its president or something. I think little of him. Reading her story, this aspect of it showed me a lot of ego that was threatened. I don’t believe that the natural law that Jefferson & others spoke of was quite the same thing that this judge employed in his decision.
May 17th, 2009 at 6:45 am
“I don’t believe that the natural law that Jefferson & others spoke of was quite the same thing that this judge employed in his decision.”
Maybe. Maybe not. But if not, I wonder what is different about the natural law Jefferson and others were referring to. Maybe it’s out in the cosmos somewhere, because Google doesn’t help, and I can’t find it on Westlaw.
May 17th, 2009 at 10:09 am
Touche!…and of course if I’m going to make a statement like that, I should back it up myself, but it was pretty early in the AM at the time! and I wasn’t up to all the back-tracking I’d need to do…
May 17th, 2009 at 12:56 pm
If natural law is meaningless then so is the rationale behind the Declaration of Independence. Radical libertarians need to come to grips with the fact that the natural law tradition and the rights derived from that tradition can only apply if a creator (in the christian west) or higher power around which the universe is organized (pre-christian Greece) is posited. Custom, tradition and conscience are assumed to be rational indications for the existence of law pre-existing the state while the judeo-christian culture, during the founding period, was belived a prerequisite foundation for the morality necessary for true ’self-governmnet’ where self-coercion largely replaces the heavy hand of state coercion. The hopes of the founders were placed in the Greek idea of a ‘virtuous republic’ where self-governmnet was both a literal idea regarding the individual as well as the principle behind a practical yet strictly limited government.
May 17th, 2009 at 5:26 pm
I wouldn’t say “natural law” is meaningless. It’s just more or less a reliance on something “cosmic” that people refer to in order to justify their actions. England didn’t have a law to allow us to break away, so in declaring our independence, we asserted it was a peoples’ imperative under “natural law.” It does not take away from the momentus thing we did. And if “natural law” is what it takes to achieve balance again, then so be it. I just think it’s a funny concept. In regaining our states’ rights, I will rely on any principle…. even “Jeff’s law!”
May 18th, 2009 at 6:00 am
So I guess the idea behind a jury of your peers can become a jury of Jeff or Earl Warren or anyone with power. You did say, “Trust me, “natural law is meaningless”. Bradley’s idea of natural law was, shall we say, idiosyncratic. Custom, tradition and conscience are not relative values and the individual states laws regarding the rights of women were not uniform.
May 19th, 2009 at 6:31 am
The constitution can be altered only by action of 3/4 of the state legislatures. Therefore the states are in total control of the creature the states, not the people, created. As things now stand, the fed is controlling the creators. Until the Senate is once again appointed by the individual states the creators will have no voice in the power the fed uses to subordinate the states. When Senators answer to the legislatures, and not the people, they will continue to do what they think will best assure their re-election. The states need to repeal the 17th amendment and therefore wrest control from the fed and once again take control of that which was created for the convenience of the individual state governments.
May 19th, 2009 at 6:55 am
Larry,
Yes, the States need to repeal the 17th, 14th, and 16th.
However, every two years the People, not the States, elect all 435 Members of the House of Congress also the People elect every Lawmaker in their respective States. The House controls the purse of fedgov; all Bills for raising federal revenue must start in the House, Article I, Section 7. And the People control “who” is seated in the House.
If the People want a change of government they best stop griping and blaming and fire Lawmakers in Congress and State Legislatures by simply voting to not reelect Incumbents.
Allan
May 20th, 2009 at 10:59 pm
A lot of the trouble would end if the US Senate
was reclaimed by the states! And some states can
quickly reclaim their suffrage because -
The 17th Amendment Does Not Apply To Any States
That Did Not Ratify It - Because They Did Not
“Consent” To It. The Constitution Mandates:
“…; and that no State, without its Consent,
shall be deprived of its equal Suffrage in the
Senate.” - Article V. Think about it! A state
must ratify to “consent”! No ratify - No
“consent” - No 17th compliance required!
Read More At:
http://mrossarr.nixsyspaus.org/17thamend.shtml
June 22nd, 2009 at 5:27 pm
What's missing in Wood's article and all the replies? The missing ingredient is who is the final and highest authority and power to enforce their interpretation of the "wording" of the Constitution? It is the "People" and they have only the power of the ballot and jury boxes to enforce their interpretation.
I have to wonder is that missing part left out on purpose, I am beginning to believe it is purposely disregarded. If it wasn't disregarded then he said she said wouldn't have anything to whip up discontent among the People or scam them out of their money, huh?
Allan
June 22nd, 2009 at 7:25 pm
Allan - you are no doubt correct that it's the People who are the sovereign…and ultimately it will be the people themselves who will tell their agents…the government….how it should be acting.
I think jury nullification is an important part of this movement, but as far as the ballot box, I do not. Can you provide any instances of overall liberty being expanded by the vote?