Nullification is a topic rarely broached in conventional schooling, or if it is, it is firmly tied to slavery, southern secession, the civil war, and then dismissed out of hand as a tool fit for slave holders and racists. In his book Nullification, Thomas Woods utterly explodes these misconceptions and lies.
The book itself is divided into two parts. The first part is written by Thomas Woods and consists of five chapters, about 150 pages, and explores modern nullification efforts, the origins of nullification, many historical efforts at nullification, and two important theories behind the formation of the United States. In addition, Woods refutes most modern arguments against nullification and gives some practical advice as to how we might apply it today.
The second part of the book spans about 100 pages and consists of 11 Essential Documents, which are mainly resolutions passed by a number of state houses explicitly nullifying some federal law or another. Included is Thomas Jefferson’s Kentucky Resolution of 1798, which many consider to contain Jefferson’s core philosophy regarding the nature of the union.
Woods begins with some examples of how nullification is being used today to counteract a number of ineffectual and immoral policies promulgated by the federal government. Two of the most high profile are medical marijuana and REAL ID.
In the case of medical marijuana, states have nullified the federal prohibition on marijuana use and possession when deemed medically necessary by a physician. Of course, the story does not end there. Patients have still been arrested and tried in federal courts for marijuana charges, but the states seem to be winning this battle as the Obama administration has indicated it will no longer enforce federal law as it applies to these state initiatives.
State nullification of REAL ID has also been quite successful, and the federal government has largely abandoned efforts to implement this particular incarnation of a national ID card.
The examples, which show how nullification can work in our times, are later brought together with some theory. This theory emphasizes the idea that the federal courts, which are themselves just a branch of the federal government, can not legitimately act as judge in cases where the actions of the federal government are being called into question by the states. To allow this would be akin to letting a man sit as a judge in his own criminal case.
Next the modern case for nullification gives way to a historical treatment. Woods examines the historical record of nullification beginning with the Virginia and Kentucky Resolutions of 1798. These resolutions, which were drafted by James Madison and Thomas Jefferson respectively, held that The Sedition Act, which banned political speech critical of the President and Congress, was unconstitutional and thus void.
From there Woods traces nullification through the 1850s showing how it was used by a number of states both northern and southern to fight a variety of unconstitutional federal laws. The cases are varied and deal with free trade, conscription, and slavery. In the case of slavery it is worth pointing out that nullification was used to prevent slave catchers from operating in the state of Wisconsin. So in fact nullification was used, at least in one case, not to promote slavery, but rather to challenge it.
Unfortunately Woods stops short of giving a full historical treatment of nullification, choosing to end his survey with a single post Civil War Supreme Court case. One can only assume that this is because after the 1850s, nullification was often used on the part of southerners to oppress former slaves and their descendants.
On the other hand, regardless of how nullification has been used historically, it is simply a political tool, and like any tool it can be used for good or ill. Woods has done a good job of showing how the tool has been used for righteous purposes in the past.
Perhaps the best part of the book was Chapter 4, which relates two theories about how the United States were formed. The first, called the nationalist theory of the union, held that a single sovereign body of people created the United States and that the States were simply creations of the national government. This theory was first described by Joseph Story in his treatise, Commentaries on the Constitution of the United States, and is what is typically taught in schools today. Clearly this theory appeals to the supporters of centralized power.
However, just as much as the nationalist theory appeals to centralizers, the competing compact theory should appeal to decentralists. This theory of the union holds that the United States were created by an act of 13 independent states, which explicitly chose to delegate certain powers to a common authority.
The implication of this theory is that the states were never subsidiaries of the United States, but rather sovereign powers participating in a treaty, which they were each duty bound to uphold. The theory further implies that the central authority does not have a monopoly upon deciding what is or what is not constitutional, but rather that the states are co-equal in this regard.
Brought under such a light, nullification is wholly legitimized as a tool for keeping the federal government in its proper sphere while simultaneously keeping the union intact.
The first part of Nullification concludes by refuting many typical, (and typically inane), arguments against nullification. In so doing Woods makes a strong case for decentralized governance. He also suggests some remedies that might be employed to fight the increasing lawlessness of the federal government today, including constitutional amendments, federal tax escrow accounts, and jury nullification.
I had been looking forward to reading this book and it did not disappoint.