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July 30th, 2010

Nullification

By Nathan Tucker

Thomas Woods, author of a new book entitled Nullification:  How to Resist Federal Tyranny in the 21st Century, spoke at the Celebrate the Constitution event held the Friday evening before the Iowa Republican Party’s State Convention.  In his book, Woods argues that states have the sovereign right to actively resist and thwart unconstitutional federal laws such as ObamaCare.

The theory, first articulated by Thomas Jefferson in the Kentucky Resolutions of 1798, holds that the federal government “was not made the exclusive or final judges of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers…”

Rather, according to what later became known as the “Spirit of ’98,” each state has an equal right to not only pass censure on a particular use of federal power, but also to determine “the mode and measure of redress.”  This sentiment was echoed by the Virginia Resolutions of 1798, drafted by James Madison.

The premise underlying the “Spirit of ‘98” is the compact theory—that, as Woods put it, “the United States [was] created by a group of independent political societies [i.e., the states] that established a federal government as their agent, reserving all undelegated powers to themselves[.]”  Therefore, much as the principal is the master of the agent, so the states are the masters of their agent the federal government.

As evidence of state sovereignty, Woods argues that each state became an independent sovereign on July 4, 1776, when they declared their independence of Great Britain, and that this situation did not change under the Articles of Confederation.  While this is true, Woods argues, as did Jefferson, Madison, and John C. Calhoun before him, that the Constitution itself did not change this but simply replaced the old treaty alliance of the Articles with a new one.

In short, nullification maintains that the federal government is a confederation government of sovereign states.  This is a startling proposition, considering that 37 of the 50 states were created out of federal land by the federal government and, as a result, owe their existence to it.  Certainly these states cannot be considered as sovereign states participating in a treaty league under the auspices of the Constitution. Because the federal government could therefore only be the agent of the original 13 states, the compact theory would create an unequal, two-tier system of states whereby the power of nullification belonged solely to those 13 states.

To buttress his argument of state sovereignty, Woods maintains that sovereignty is indivisible and, therefore, the original 13 states (after 1776) were unable to surrender their sovereignty to a national government, even if they had so desired.  How is it, then, that Great Britain could surrender her sovereign claims to the colonies?  Or that Native American tribes became semi-sovereign dependents of the federal government?  Or that the United States could buy the Louisiana Purchase from France, who in turn had bought it from Spain?

Additionally, no where in his book does Woods examine the contrast between the compact theory in existence under the Articles of Confederation with the type of government bequeathed by the Constitution.  Under the Articles, each state had one vote, regardless of population.  The delegates of each state were completely dependent on the legislatures that selected them, paid them, instructed them how to vote, and could withdraw them at any time.  Furthermore, the Congress under the Articles could only make resolutions, not enforce them.

Under the Constitution, however, the sates had equal representation in only one legislative chamber, the Senate.  The President is chosen by electors, and Congressmen are elected by the people in districts that change after every decennial census.  The elected officials of the new government are paid out of federal coffers, are free to ignore the instructions of the states, and cannot be recalled by them.  And the laws of the federal government are declared to be the supreme law of the land and binding on state governments.

As many anti-federalists noted at the time, the Constitution replaced the multinational compact under the Articles with a national government of the people.  The importance of this cannot be overstated, because under a government made up of sovereign states rather than We the People, only the states would have the right to amend it, to sue it, to engage in civil disobedience, or to rebel against it.  Under the compact theory, since We the People are not parties to the federal government, we have no rights or claims against it even though it taxes and regulates us.

While we should amend the Constitution to allow, as Woods and others have proposed, for two-thirds of the states to be able to veto acts of Congress, the doctrine of nullification and the compact theory it represents has no basis in our Constitution.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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