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Book Review: Nullification by Thomas E. Woods

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.

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Summary: A Disquisition On Government by John C. Calhoun

Note: This entire post is a paraphrase of Calhoun’s work. Direct quotes have been marked as such.


Man is a social being and requires society to attain the full development of his moral and intellectual facilities. However it is also true that man has been “constituted as to feel more intensely what affects him directly, than what affects him indirectly through others.”  Thus the constitution of our nature leads to conflict between individuals, which if not prevented by some controlling power, tends toward a universal state of conflict. This controlling power, government, is then a necessity to preserve society. But of course the existence of government is clearly dependent upon society.

Owing to the part of man’s nature that makes government indispensable, government itself has a strong tendency to disorder and abuse of its powers. That by which this is prevented is what is called constitution. Constitution stands to government as government stands to society.

Those who are invested with the powers of government must be prevented from employing those powers as a means of aggrandizing themselves. But this can neither be done by an appeal to a higher power nor by reducing the powers of government to a level where the government is too feeble to be abused. Government must have the power to repel assaults from abroad, and to repress violence and disorder within. The entire power and resources of a community must be available to be marshaled in defense of  itself. “By what means can government, without being divested of the full command of the resources of the community, be prevented from abusing its powers?”

An organism must be furnished whereby the ruled are empowered in a systematic way to peaceably resist the tendency on the part of the rulers to oppression and abuse. “Power can only be resisted by power.”

Suffrage is an indispensable and primary foundation for such peaceful resistance, but it is not sufficient as it “can do no more than give complete control to those who elect, over the conduct of those they have elected.” As such “it only changes the seat of authority, without counteracting, in the least, the tendency of the government to oppression and abuse of its powers.”

“Nothing is more difficult than to equalize the action of the government, in reference to the various and diversified interests of the community; and nothing more easy than to pervert its powers into instruments to aggrandize and enrich one or more interests by oppressing and  impoverishing others; and this too, under the operation of laws, couched in general terms; and which on their face appear fair and equal.”

“The more extensive and populous the country, the more diversified the condition and pursuits of its population, and the richer, more luxurious, and dissimilar the people, the more difficult is it to equalize the action of the government — and the more easy for one portion of the community to pervert its powers to oppress, and plunder the other.” [Contra Federalist #10].

Suffrage must then lead to a conflict among different interests, each striving to use the government to advance itself or to protect itself from the others. Thus “a struggle will take place between the various interests to obtain a majority in order to control the government.” The process may be slow but overtime the community will be divided into two great parties – a minor and a major – between which there will be incessant struggles.

“The whole united must necessarily place under the control of government an amount of honors and emoluments, sufficient to excite profoundly the ambition of the aspiring and the cupidity of the avaricious; and to lead to the formation of hostile parties.”

“And what makes this evil remediless, through the right of suffrage of itself, however modified or carefully guarded, or however enlightened the people, is the fact that , as far as the honors and emoluments of the government and its fiscal action are concerned, it is impossible to equalize it.”

“Some one portion of the community must pay in taxes more than it receives back in disbursements; while another receives in disbursements more than it pays in taxes.”

“Some conception may be formed, how one portion of the community may be crushed, and another elevated on its ruins, by systematically perverting the power of taxation and disbursement, for the purpose of aggrandizing and building up one portion of the community at the expense of the other. That it will be so used, unless prevented, is, from the constitution of man, just as certain as that it can be used.”

“The dominant majority, for the time, would have the same tendency to oppression and abuse of power, which without the right of suffrage, irresponsible rulers would have.” The majority “would in reality, through the right of suffrage, be the rulers — the controlling, governing, and irresponsible power; and those who make and execute the laws would, for the time, be, in reality, but their representatives and agents.”

By itself the right of suffrage can not counteract this tendency toward abuse by the majority. Another mechanism must be devised that will “prevent any one interest or combination of interests, from using the powers of government to aggrandize itself at the expense of the others.” The government should “require the consent of each interest, either to put or to keep the government in action.” Each interest must have a concurrent voice in the making and executing the laws or be allowed a veto on their execution.

There are “two different modes in which the sense of the community may be taken.” One – the numerical or absolute majority – regards only numbers and considers the entire community as a unit. The other – the concurrent majority – regards interests as well as numbers and takes the sense of each interest through its majority or appropriate organ.

The first and leading error which arises from overlooking the distinction between the numerical majority and the concurrent majority is to confound the numerical majority with the people as a whole.  This leads one so confused to “regard the numerical majority, as, in effect, the entire people; that is, the greater part as the whole; and the government of the greater part as the government of the whole. It is thus the two come to be confounded, and a part made identical with the whole. And it is thus, also, that all rights, powers, and immunities of the whole people come to be attributed to the numerical majority, and among others, the supreme, sovereign authority of establishing and abolishing governments at pleasure.” [Contra Rousseau].

“They who fall into these errors regard the restrictions which organism imposes on the will of the numerical majority as restrictions on the will of the people, and, therefore, as not only useless, but wrongful and mischievous. And hence they endeavor to destroy organism, under the delusive hope of making government more democratic.”

Another error lies in the belief that in and of itself a “written constitution, containing suitable restrictions on the powers of government, is sufficient, of itself without the aid of any organism to counteract the tendency of the numerical majority to oppression and abuse of power.”

“A written constitution certainly has many and considerable advantages; but it is a great mistake to suppose, that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers.”

“But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect, –and the other be deprived of all means of enforcing its construction?”

“The end of the contest would be the subversion of the constitution, either by the undermining process of construction,–where its meaning would admit of possible doubt,– or by substituting in practice what is called party-usage, in place of its provisions;–or, finally, when no other contrivance would subserve the purpose, by openly and boldly setting them aside.”

“Nor would the division of government into separate, and, as it regard each other, independent departments, prevent this result.”

“The necessary consequence of taking the sense of the community by the concurrent majority is to give to each interest or portion of the community a negative on the others. It is this mutual negative among its various conflicting interests, which invests each with the power of protecting itself.”  Without this power to arrest or prevent the exercise of power–be it in the form of a veto, interposition, nullification, check, or balance–there can be no constitutional government.

“It is, indeed, the single , or one power, which excludes the negative, and constitutes absolute government; and not the number in whom the power is vested. The numerical majority “is as much the absolute government of the democratic, or popular form, as the latter of the monarchical or aristocratical. It has, accordingly, in common with them, the same tendency to oppression and abuse of power.”

All constitutional governments take the sense of the community by its part,–each  through its appropriate organ; and regard the sense of all its parts, as the sense of the whole. “All absolute governments, of whatever form, concentrate power in one uncontrolled and irresponsible individual or body, whose will is regarded as the sense of the community. And, hence, the great and broad distinction between government is,–not that of the one, the few, or the many,–but of the constitutional and the absolute.”

“Absolute governments, of all forms, exclude all other means of resistance to their authority, than that of force; and, of course, leave no other alternative to the governed, but to acquiesce in oppression, however great it may be, or to resort to force to put down the government.”

“The government of the concurrent majority excludes the possibility of oppression, by giving to each interest , or portion, or order,–where there are established classes,–the means of protecting itself, by its negative, against all measures calculated to advance the peculiar interests of others at its expense.”

“It is by means of such authorized and effectual resistance, that oppression is prevented, and the necessity of resorting to force superseded, in governments of the concurrent majority;–and, hence, compromise, instead of force, becomes their conservative principle.”

The conflict between the two parties, in the government of the numerical majority, tends necessarily to settle down into a struggle for the honors and emoluments of the government, and eventually causes the adoption of any measure, however objectionable, which might give the party in the majority an advantage. The minority party, when it becomes the majority, then follows the precedent.

Moreover, as contention for power escalated the parties would each fall under the control of their majorities, and then under the control of just each of their leaders. Thus the entire government would be virtually under control of the leadership of the dominant party. “At this stage, principles and policy would lose all influence in the elections, and cunning, falsehood, deception, slander, fraud, and gross appeals to the appetites of the lowest and most worthless portions of the community, would take the place of sound reason and wise debate.” The government would vibrate between the two factions at each successive election.

“These vibrations would continue until confusion, corruption, disorder, and anarchy, would lead to an appeal to force;–to be followed by a revolution in the form of the government. Such must be the end of the government of the numerical majority.” [This is echoed in F.A. Hayek’s book The Road To Serfdom].

“When, then, the two parties, in governments of the numerical majority, resort to force, in their struggle for supremacy, he who commands the successful party will have the control of the government itself. And, hence, in such contests, the party which may prevail,will usually find, in the commander of its forces, a master, under whom the great body of the community will be glad to find protection against the incessant agitation and violent struggles of two corrupt factions.”

The broader position on this is that all constitutional governments, whether of the one, few, or many, have a tendency to degenerate into their absolute forms. The line in governments of the popular form is however, less well understood. “The numerical majority, perhaps, should usually be one of the elements of a constitutional democracy; but to make it the sole element, in order to perfect the constitution and make the government more popular, is one of the greatest and most fatal of political errors.”

Suffrage “cannot be so extended in those of the numerical majority, without placing them ultimately under the control of the more ignorant and dependent portions of the community.” This multitude will be easily moved by a leader who will excite and direct them in their efforts so that he might take control.

In governments of the concurrent majority mere numbers do not have absolute control.

In the numerical majority “devotion to party becomes stronger than devotion to country;–the promotion of the interests of party more important than the promotion of the common good of the whole.” On the other hand, the concurrent majority blends the whole into one common attachment to the country. “By giving to each interest, or portion, the power of self-protection, all strife and struggle between them for ascendancy is prevented.”

Liberty and security are the indispensable elements that leave each member of a society free to develop his intellectual and moral facilities.

“Liberty leaves each free to pursue the course he may deem best to promote his interest and happiness, as far as it may be compatible with the primary end for which government is ordained;–while security gives assurance to each, that he shall not be deprived of the fruits of his exertions to better his condition.” But to “extend liberty beyond the limits assigned, would be to weaken the government and to render it incompetent to fulfill its primary end,–the protection of society against dangers, internal and external.” The effect of this would be insecurity, and a weakening of the impulse of individuals to better their condition. However, “to extend the powers of the government, so as to contract the sphere assigned to liberty, would have the same effect.”

“Liberty, indeed, though among the greatest of blessings, is not so great as that of protection; inasmuch, as the end of the former is the progress and improvement of the race,–while that of the latter is its preservation and perpetuation.”

“Liberty leaves each free to pursue the course he may deem best to promote his interest and happiness, as far as it may be compatible with the primary end for which government is ordained;–while security gives assurance to each, that he shall not be deprived of the fruits of his exertions to better his condition.”

“Liberty, when forced on a people unfit for it, would, instead of a blessing, be a curse; as it would, in its reaction, lead directly to anarchy.”

“Although it may be true, that a people may not have as much liberty as they are fairly entitled to, and are capable of enjoying,–yet the reverse is unquestionably true,–that no people can long possess more than they are fairly entitled to.”

“Equality of citizens, in the eyes of the law, is essential to liberty. But to go further, and make equality of condition essential to liberty, would be to destroy both liberty and progress.”

The necessary effect of leaving all free to exert themselves to better their condition, must be a corresponding inequality between those who may or may not possess certain qualities –such as intelligence, sagacity, energy, perseverance, skill, habits of industry and economy physical power, position and opportunity–in a high degree.

“To force the front rank back to the rear, or attempt to push forward the rear into line with the front, by the interposition of the government would put an end to the impulse, and effectually arrest the march of progress.”

“The more perfectly a government combines power and liberty,–that is, the greater its power and the more enlarged and secure the liberty of individuals, the more perfectly it fulfills the ends for which government is ordained.”

“The concurrent majority, then, is better suited to enlarge and secure the bounds of liberty, because it is better suited to prevent government from passing beyond its proper limits.”

“Liberty can only be preserved where there exist institutions which allow those who have like interests the ability to exercise a negative on the government and prevent it from encroaching on the rights and liberty of individuals.”

Furthermore liberty and the progress that it engenders, bestows civilization with more security. And among the civilized nations those where liberty is the largest and best secured find themselves most prosperous and secure.

Two objections may be raised to the concurrent majority. It would be impracticable to obtain the concurrence of conflicting interests, and it is difficult to construct.

As to the first “when there is no urgent necessity, it is difficult to bring those who differ, to agree on any one line of action.” However, when something must be done the necessity of the case will force a compromise. Consider trial by jury, which requires a unanimous concurrence for a verdict to be reached.

The concurrent majority, since it would discourage aggrandizement by particular interests, would tend to bring the community together.

Poland and its method for electing kings furnishes an example of the concurrent majority in action. This form lasted more than two centuries.

Another example is the Confederacy of the Six Nations in western New York State. [The Iroquois].

A free press “cannot, of itself, guard any more against the abuse of power, than suffrage; and for the same reason.”

“What is called public opinion, instead of being the united opinion of the whole community, is, usually nothing more than the opinion or voice of the strongest interest, or combination of interests; and, not unfrequently, of a small, but energetic and active portion of the whole.”

“The press is used by them as the means of controlling public opinion and of so moulding it, as to promote their peculiar interests.”

The numerical majority has one advantage and that is in its simplicity of construction, but indeed an absolute monarchy is even more simply constructed.

“A constitution, to succeed, must spring from the bosom of the community, and be adapted to the intelligence and character of the people, and all the multifarious relations, internal and external, which distinguish one people from another. If it do not, it will prove, in practice, to be, not a constitution, but a cumbrous and useless machine, which must be speedily superseded and laid aside, for some other more simple, and better suited to their condition.”

“Of the different forms of constitutional government, the popular is the most complex and difficult of construction.” In an aristocracy or monarchy the sense of each group may be taken separately and easily “without making the whole too complex, or too tardy in its movements to perform, with promptness and energy, all the necessary functions of government.” It is more difficult in the case of constitutional governments of the popular form.

“Of the three forms, the monarchical has heretofore been much the most prevalent, and, generally, the most powerful and durable.” It is the most susceptible to improvement and can be easily and readily modified. As to whether the monarchical form will retain its advantages remains to be seen.

If the popular form of government can be prevented from becoming absolute, “then it is not improbable that, in the progress of events, the monarchical will cease to be the prevalent form of government.”

Public opinion has been amplified by technology, which has helped give full force to public opinion and make it a strong political element in its own right.

“Those governments which have not the sagacity to perceive what is truly public opinion,–to distinguish between it and the mere clamor of faction, or shouts of fanaticism,–and the good sense and firmness to yield, timely and cautiously, to the claims of the one,–and to resist, promptly and decidedly, the demands of the other,–are doomed to fall.”

The object of both the governments of Rome and Great Britain were to blend and harmonize the conflicting interests of the community, take the sense of each class or portion through its appropriate organ, and consider the concurrent sense as the sense of the whole community.

Notable Quotations

“A written constitution certainly has many and considerable advantages; but it is a great mistake to suppose, that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers.”

“Liberty leaves each free to pursue the course he may deem best to promote his interest and happiness, as far as it may be compatible with the primary end for which government is ordained;–while security gives assurance to each, that he shall not be deprived of the fruits of his exertions to better his condition.”

“Liberty, when forced on a people unfit for it, would, instead of a blessing, be a curse; as it would, in its reaction, lead directly to anarchy.”

“Although it may be true, that a people may not have as much liberty as they are fairly entitled to, and are capable of enjoying,–yet the reverse is unquestionably true,–that no people can long possess more than they are fairly entitled to.”

“Equality of citizens, in the eyes of the law, is essential to liberty. But to go further, and make equality of condition essential to liberty, would be to destroy both liberty and progress.”

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