Nullification: How to Resist Federal Tyranny in the 21st Century
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Had the Supreme Court been correct about the alleged spillover effects of medical marijuana from one state into another, we should expect some of those state governments to have filed amicus briefs in support of the federal government’s position. To the contrary, Alabama, Louisiana, and Mississippi, three southern states known for their conservatism, filed amicus briefs in support of Angel Raich. They opposed California’s policy on medical marijuana, they said, but they were much more strongly opposed to a federal government so oblivious to restraints on its power that it would actually disallow California’s policy.13
In 2007, Angel Raich renewed her litigation before the Ninth Circuit, with an even more grotesque result. The circuit court conceded the seriousness of her condition, and noted that if she did not have recourse to the liberties the California Compassionate Use Act made available to her she would be forced to endure “intolerable pain, including severe chronic pain in her face and jaw muscles due to temporomandibular joint dysfunction and bruxism, severe chronic pain and chronic burning from fibromyalgia that forces her to be flat on her back for days, excruciating pain from non-epileptic seizures, heavy bleeding and severely painful menstrual periods due to a uterine fibroid tumor, and acute weight loss resulting possibly in death due to a life-threatening wasting disorder.” The Ninth Circuit admitted Raich did “not appear to have any legal alternative to marijuana use.”14 But that was just too bad. “Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”15
Now consider: the federal government defied the states’ resistance efforts, launching a series of raids on medical marijuana patients and dispensaries. The Supreme Court ruled against the states. And yet the use of medical marijuana goes on as if none of this ever occurred. There are as many as one thousand functioning dispensaries in Los Angeles County alone, each of which operates in direct defiance of the federal will.16
Medical marijuana is not a cause that is losing momentum. If anything, its supporters are becoming more confrontational and identifying their cause more consistently as a constitutional struggle with the federal government. In socially conservative Kansas, the movement is proceeding apace. House Bill 2610 declares, “The legislature of the state of Kansas declares that this act is enacted pursuant to the police power of the state to protect the health of its citizens that is reserved to the state of Kansas and its people under the 10th amendment to the United States Constitution.”17 According to New York’s Assembly Bill A09016 and Senate Bill S4041B, “This legislation is an appropriate exercise of the state’s legislative power to protect the health of its people under article 17 of the state constitution and the tenth amendment of the United States Constitution.”18 The Tenth Amendment, discussed further in chapter 2, clarifies that the federal government possesses only the powers delegated to it in the Constitution, and guarantees the states the power to govern themselves in all other areas.
Nullification is being contemplated in many other areas of American life as well—and not just in health care (an issue to be discussed in chapter 5).
In early 2010, Wyoming state representative Allen Jaggi introduced House Bill 95, the Firearms Freedom Act. The Act seeks to rein in the federal government’s assumed power to regulate anything it chooses on the spurious grounds of “interstate commerce.” It declares that “specified firearms that are manufactured, sold, purchased, possessed and used exclusively within Wyoming shall be exempt from federal regulation, including registration requirements.” Thus, Wyoming guns with no interstate dimension cannot be regulated under any honest reading of the commerce clause.19 This statement of common sense doubtless sounds shocking and uppity to the modern ear, accustomed as it is to accepting federal usurpations as unchangeable facts of life. Tennessee, Montana, and South Dakota have enacted similar legislation into law. Nearly two dozen other states are considering doing the same. South Carolina’s legislature is considering a law (House Bill 4509) that would nullify federal gun registration requirements regardless of where the guns are manufactured. Proposed legislation in New Hampshire and Wyoming even includes penalties for federal agents attempting to enforce unconstitutional regulation. As the Framers of the Constitution intended, these matters properly belong to the states and the people, not the federal government.
An effort that bears more than a family resemblance to nullification, concerned as it is with the reserved powers of the states, is called Bring the Guard Home. It seeks to restore the traditional powers of the state governors over their own National Guard units.20 Bring the Guard Home argues that the National Guard, the successor to the militias of an earlier time, may be deployed by the president only for the constitutional purposes of repelling invasions or insurrections, or executing the law.21 Such a role for the National Guard is consistent with the popular portrayal of the citizen soldier who assists his own community and his own country.
The Bring the Guard Home movement boasts a diverse array of supporters, including liberals, conservatives, libertarians, military families, and active-duty servicemen. Proposed legislation to reassert traditional state authority over the Guard has twice received favorable coverage on WorldNetDaily.com, a popular conservative website.22 The libertarian Tenth Amendment Center has proposed legislation even more straightforward and powerful than what Bring the Guard Home itself has suggested. According to its model legislation,
The governor shall withhold or withdraw approval of the transfer of the National Guard to federal control in the absence of: a) A military invasion of the United States, or b) An insurrection, or c) A calling forth of the Guard by the federal government in a manner provided by Congress to execute the laws of the Union, provided that said laws were made in pursuance of the delegated powers in the Constitution of the United States, or d) A formal declaration of war from Congress.23
The Tenth Amendment Center became especially active on the issue in the wake of an executive order from Barack Obama in early 2010 that established a new Council of Governors that would review “such matters as involving the National Guard of the various states; homeland defense, civil support; synchronization and integration of state and federal military activities in the United States; and other matters of mutual interest pertaining to National Guard, homeland defense, and civil support activities.”24 In light of this vague mandate, supporters of the National Guard’s traditional role found it opportune to try to introduce into the various state legislatures clarifying measures regarding the proper role of, and authority over, the National Guard.
Objections have been raised against nullification, to be sure, and we shall address them, implicitly or explicitly, throughout this book. But one misplaced criticism ought to be answered right away: that nullification violates the Constitution’s supremacy clause, which says the Constitution and laws in pursuance thereof shall be the supreme law of the land.25 This argument merely begs the question. The supremacy clause says the Constitution and laws in pursuance thereof shall be the supreme law of the land. In other words, the Constitution and constitutional laws shall be the supreme law of the land. That’s precisely the issue: a nullifying state holds that the law in question is unconstitutional and not “in pursuance thereof.” The supremacy clause does not say unconstitutional laws shall be the supreme law of the land. William Harper, by turns judge, U.S. senator, and state representative, understood the matter correctly back in 1830 when he noted that “the clause declaring that the Constitution and the laws made in pursuance of it, shall be the supreme law, would, of itself, conclude nothing. The question would still recur—who shall judge whether the laws are made in pursuance of it.”26
This need not be a traditional left-right issue. Before the Left decided that the bureaucratization of all of life, administered by a remote central government, was the ideal social arrangement, some on the Left considered such a system repulsive and inhumane. Kirkpatrick Sale, for instance, argued in his book Human Scale that so much of mod
ern life, its political dimension included, had grown dysfunctional simply by virtue of having grown. Everything was simply much too big, its scale grotesquely out of proportion to what a humane existence would appear to demand.27
Some of this earlier decentralist spirit is still alive in community-supported agriculture, the defense of farmers’ markets against federal incursions, and the “small is beautiful” outlook in general—causes associated in the public mind with, but by no means confined to, the Left. It is this spirit that would find nullification and what came to be known as the Principles of ’98—described in detail in the next chapter—congenial, and it is in this spirit that today’s burgeoning nullification movement has made inroads among the Left. Yes, Vermont and Kansas may use nullification, which the Kentucky Resolutions of 1799 described as the states’ “rightful remedy” against unconstitutional federal power grabs, for different purposes. Vermont may object to one unconstitutional law and Kansas another. Heaven knows there are plenty to choose from. But for those who do not feel compelled to mold every last community in America into their own image, and prefer instead to live and let live and mind their own business, this is quite all right. We might actually wind up with the diverse collection of self-governing communities the ratifiers of the Constitution thought they were protecting.
Unfortunately, only a tiny remnant of this school of thought remains on the Left. For the most part, we are faced with what I call the imperial Left—which, not content to let a hundred flowers bloom, seeks to impose a federally administered uniformity upon states and communities, in defiance of decentralism and localism, to say nothing of the spirit and practice of the original American republic. Proposing nullification around such people is like holding a crucifix before Dracula.
Now I do not doubt that many readers, exposed to this idea for the first time, will initially be skeptical, even dismissive. All I ask is that you give serious consideration to Jefferson’s side of things, which I have reproduced as faithfully as I can in the pages that follow. I hope to persuade you that the case for nullification is a strong one—logically, constitutionally, historically, and morally.
To my surprise, a significant number of Americans are already sympathetic to nullification, without necessarily having heard of the idea before or weighed the arguments for and against. According to a February 2010 Rasmussen Reports poll, 59 percent of likely voters believe the states should have the right to opt out of federal government programs of which they disapprove. Just 25 percent disagree, while another 15 percent are not sure.28 This is not exactly the same thing as nullification, which involves the refusal to enforce unconstitutional laws, not simply laws the states do not like. But these numbers are significant all the same.
This initial sympathy for nullification may be a product of the public’s inchoate sense that Washington, D.C., is where the least responsive level of government, significantly worse than its state and local counterparts, is to be found. The bank bailouts of 2008 are an instructive example: with constituent calls running fifty-to-one—or higher—against the bailout package, Congress eventually approved it anyway. Instead of concluding that the people had spoken, political figures simply rewrote the bill until enough pressure groups got their bribes. This much worse bill was then pushed through the House of Representatives. Democracy in action.
There is likewise a sense that matters of great importance are rushed through Congress on the spurious grounds that desperate times call for reckless measures. Whatever the merits of these measures, items ranging from the North American Free Trade Agreement and the World Trade Organization to the bailout of the Mexican peso, the PATRIOT Act, the Wall Street bailouts, and the fiscal stimulus bill of 2009—to name only a few—were imposed on the country without sufficient deliberation and (perish the thought!) likely with interests other than the public good in mind.
Some of this lack of responsiveness, in turn, is attributable to how few representatives per capita we now have, as a result of how large the country has grown. When the Constitution was ratified, there were three million Americans. When the first Congress convened in 1790, there was one member of the House of Representatives for every 30,000 people (which translated into one per 5,000 voting citizens). The size of the House was capped at 435 members in 1920, when the U.S. population was at 90 million. By 2010 the population was nearly 309 million. That’s one representative per 710,345 people. Had this ratio been observed in 1790, there would have been about four people in the House of Representatives. Were the old ratio observed today, there would be 10,300 members in the House.29 What, on such a scale, could political representation amount to? If political representation ever really meant anything, it surely doesn’t today. Governments are notoriously difficult to control, even under the best of conditions. Are we surprised when a government on this scale, so remote from popular control and oversight, routinely acts in such open defiance of public opinion?
To be sure, nullification is not a perfect remedy. It cannot solve all our problems. Like nearly any principle, it can be abused. But we are grown-ups. We understand that no political arrangement is without shortcomings, even serious ones. Whenever we try to wrestle with the issue of political power, the greatest and most dangerous monopoly in history, we are inevitably faced with imperfect choices. All we can do is ask some basic questions and be content to draw some general conclusions. Is liberty more likely to be preserved under one monopoly jurisdiction or through the competition of many jurisdictions? Where have the worst outrages against human dignity occurred: in decentralized polities or in the centralized states of the nineteenth and twentieth centuries? In which arrangement is some modicum of popular control more likely to be preserved? Would the world not have been better off had Germany remained a decentralized collection of states? Are we to believe that the American system makes none but the lamest and most ineffectual provision for the states to protect themselves against catastrophic decisions by the central power? These questions are never answered, because in our stunted political discourse, they are never asked.
As we shall see in this book, generations of Jeffersonians described nullification as the “rightful remedy” when the federal government exercised unauthorized powers. Yes, it throws a monkey wrench into the federal works. That’s precisely the point. Some will bemoan the states’ interference with the wheels of government in Washington. Why, this will be disorderly! But these are the sentiments we have heard and will always hear, until the end of time, from those who favor power over liberty. As one proponent of nullification observed, “It is impossible to propose any limitation on the authority of governments, without encountering, from the supporters of power, this very objection of feebleness and anarchy.”30
Notice, further, what these critics do not consider disorderly: the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government. The alleged chaos that would result should the states follow Jefferson’s advice and defend themselves against unconstitutional expansions of federal power is where they pretend to detect such great danger. As usual, Jefferson had the correct reply to “the supporters of power.” “I would rather be exposed to the inconveniences attending too much liberty,” he said, “than to those attending too small a degree of it.”31
Our Founding Fathers took a deliberate stance against the centralizing trends that were already at work in the eighteenth century and which would explode in the nineteenth and twentieth. Americans admired the Dutch federation, which was organized as a federative polity, and which became something of an anomaly amid the trend toward centralized states, of which the French Revolution would give the world such a notable example.32 We have allowed this unique inheritance to be undermined and destroyed, such that the United States, once a federative polity, has become just another modern unitary state like France or Germany. We have been taught to celebrate this betrayal of our Founding Fathers. We have cheered what we ought to have mourned.
CHAPTER 2
The Problem and the
“Rightful Remedy”
IN MODERN AMERICA, the Constitution has become The Great Unmentionable. Where the federal government derives constitutional authorization for its various activities is hardly ever considered or discussed. The maverick journalist who does pose the forbidden question is laughed at or ignored. On the rare occasion in which a federal official deigns to answer, the response is nearly always an awkward and inane reference to one of three constitutional clauses we shall examine in the first part of this chapter, none of which grants the power whose exercise the official is trying to defend. When the Constitution was ratified, the people were assured that it established a government of limited powers (primarily related to foreign policy and the regulation of interstate commerce), that the states retained all powers not delegated to the new government, and that the federal government could exercise no additional powers without their consent, given in the form of constitutional amendments. This is not a peculiarly conservative or libertarian reading of the historical record. This is the historical record.
The three constitutional clauses that have most frequently been exploited on behalf of expansions of federal government power are the general welfare clause, the commerce clause, and the “necessary and proper” clause.1 Generations of hapless American high school students have been taught fantasy versions of these clauses, such that they graduate with the conviction that the federal government is duly authorized to do pretty much whatever it wants to do.