(State) Nullification

People are desperate for any method that promises to secure their Liberties. Such techniques are even more attractive if they hardly require any effort on the part of the hapless citizenry. At the same time, its advocates are portrayed in a very heroic yet glitzy fashion.

 

 

State nullification, in a nutshell, is a method used by state-level legislatures to refuse enforcement of a federal statute (what the Tenthers describe as “unconstitutional federal actions”). This is done when a state legislator introduces a bill into the legislative body of which he is a member. If the bill is signed into law by the governor, then that state statute is said to “nullify” the federal one, since they explicitly contradict each other.

The author spends a good portion of this book attempting to justify the existence and previous use of state nullification. He cites the nullification by Wisconsin of the Fugitive Slave Act during the War Between the States. Not only that, but most of the book isn’t even him talking; Part II (as opposed to Part I) is simply a collection of the “Eleven Essential Documents,” which you can instead view below for free:

1) The Virginia Resolutions of 1798

2) Address of the General Assembly to the People of the Commonwealth of Virginia

3) The Kentucky Resolutions of 1798

4) The Kentucky Resolutions of 1799

5) Virginia General Assembly Report of 1800

6) Speech of Connecticut Governor Jonathan Trumbull Opening of the Special Session of the Legislature

7) Resolutions of the General Assembly of Connecticut

8) Fort Hill Address

9) An Exposition of the Virginia Resolutions of 1798

10) A Review of the Proclamation of President Jackson

11) Joint Resolution of the Legislature of Wisconsin

 

Besides the fact that this seems to be a cheap ploy to portray the book as being noticeably thicker than it really is (since he wrote only 143 pages instead of 300 some odd), I don’t see any court decisions using these documents as the basis for substantiating the power of state nullification (as opposed to how The Federalist Papers are used as source material to indicate the intent of the Framers regarding the federal Constitution). If anything, the courts have repeatedly and resoundingly rejected the power of state nullification; this largely stems from their consistent view that “We” the “People” formed the central government, not the several States during the ratifying conventions of the 1780s. I don’t see them switching to the compact theory of constitutional government anytime soon.

Tom Woods complains incessantly about how the corporatist media has portrayed Tenthers as somehow being a mob of racists. While such is not the case, repeatedly insisting that Wisconsin “nullified” the Fugitive Slave Act is not going to halt the smear job. Anyone with two brain cells to rub together knows that the corporate whore media demonizes anyone and everyone who has a serious problem with rampant statism if given half the chance. I would recommend ignoring them and leaving it to the alternative media to render the mainstream impotent.

When it comes to the nuts and bolts of how your average Joe can get the ball rolling regarding the implementation of state nullification wherever he happens to live, the best that Woods can recommend is to write your state legislator. This is about as effective as writing your congresscritter, since it does not work. Regarding dealing with the “serious obstacle” of the Congressional power of the purse being used against the various state governments, Woods remarks:

 

“Of course, the problem would be mitigated to some extent if the states were to nullify unfunded federal mandates, thereby saving money. The more states engage in nullification, moreover, the more difficult it will be for politicians in Washington to get away with penalizing them all.”

 

Wow, what a way of dodging the problem. I am left to assume that Woods gives little credence to how ingratiating the Violent Crime Control and Law Enforcement Act of 1994 is regarding the internal operations of the state governments. Also, unfunded federal mandates are really quite minor (former Sheriff Richard Mack‘s SCOTUS case dealt only with an unfunded federal mandate); what about those funded federal mandates? Wouldn’t that necessarily negate the effectiveness of any form of state nullification?

Woods recommends amending the federal Constitution. Specifically, he suggests repealing the 17th Amendment. What he fails to mention is whether this would be done by 2/3rds of the states (in their respective conventions) proposing said amendments (which is then ratified by 3/4ths of them) or by the Congress, pursuant to Article 5.

Oh, the fun doesn’t stop there, for Woods also recommends that the state governments use federal tax escrow accounts. He says:

 

“In the meantime if the states really want to be serious and their people are educated enough in their real history to back them up, they might also consider establishing federal tax escrow accounts. Proposed so far in Oklahoma, Georgia, and Washington state, legislation establishing such accounts seeks to neutralize the federal government’s ability to threaten and intimidate the states. All federal taxes would first go to the state’s department of revenue. From there, legislators would consider the constitutionality of various aspects of the federal government’s budget and then contribute from the escrow account an appropriate amount. Any leftover monies would either be returned to the people or spent on projects currently funded by federal grants.”

 

Last time I checked, this was done back in the 1990s and it completely failed. It’s also a blatant violation of Article 1, Section 8 on its face. To round out this circus of bad ideas, Woods advocates, yet simultaneously confuses, jury nullification as if it were some form of state nullification, besides also recommending the establishment of Jon Roland‘s notion of a citizens’ “Federal Action Review Commission,” an advisory body that would detail unconstitutional federal actions and then hand over the data to their respective state legislators in the vain hope that this will somehow magically motivate those legislators to nullify. Isn’t that what the alternative media does already? But I digress.

This cornucopia of half-baked notions regarding the supposed beneficence of the 50 state governments doesn’t answer my two key concerns. First, who has the power to enact state nullification? Wouldn’t that be the state legislators as opposed to Joe Citizen (the latter of whom can actually use jury nullification, albeit with caveats)? Second, what exactly is the motive for said legislators to do the right thing and abide by their oath of office through refusing to enforce whatever the latest atrocity is that the federales want to commit this week? Wouldn’t it be accurate to say that whenever a state legislator attempts to nullify anything, he is only doing so because his special interest backers told him to?

In the larger picture, aren’t all of the 50 state governments inherently complicit in perpetuating and even worsening the nature of the situation we are all suffering under? Whenever we hear about a case of police brutality, strictly speaking it usually takes the form of either city/town, county, or state/highway patrol cops, not the federal alphabet soup boys. Charles Dyer was prosecuted (or persecuted?) by the State of Oklahoma court system, not on some US District Court circuit. Jose Guerena was murdered by the Pima County SWAT team, not by some federale hit squad. Pretending that the state governments are somehow our friends and going to suddenly attack the federales simply because of this alleged method of lawful process necessarily requires the ability to completely disregard contemporary history, to our utter detriment.

Any of my reasons questioning the validity of state nullification apparently doesn’t concern the Tenthers to slow down and think at all; if anything, they are trucking along quite nicely in terms of attracting both mainstream and alternative media attention like nothing else. Alongside the publication of Tom Woods’ book on the subject, the Tenth Amendment Center was founded by Michael Boldin to serve as a national think-tank promoting the use of state nullification through its main website, the conferences it hosts (such as Nullify Now!), and also with their newly released documentary film Nullification: The Rightful Remedy, which is a little more than a film version of Woods’ book. The Tenthers have now set the agenda, without regard for constructive criticism offered in good faith, and nothing is going to stop them (or so they think).

Thomas Woods’ Nullification: How to Resist Federal Tyranny in the 21st Century is a truly unique look at this particular method of lawful process. Unfortunately, it’s now been imbued with a supposed effectiveness bestowed upon it by its adherents, sans any realistic evaluation of its actual utility in securing our Liberties. While I am glad overall that I took the time and effort to seriously consider this technique, upon deep reflection I do think that it does little else than reinforce the necessity for establishing local Committees of Safety as soon as possible. Perhaps in Tom Woods’ next book, he’ll describe how they actually worked in securing our Liberties, as well as how to go about establishing them, but I somehow doubt he’s going to do something that can actually be helpful anytime soon.

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