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Rolling back oppression

NULLIFICATION
How to resist
federal tyranny
in the 21st Century

by Thomas E Woods, Jr

It sounds of final.
Active.
Nullification.

You may be familiar with the concept of “jury nullification,” when a jury defies the judge’s instructions or a law it considers unreasonable, to deliver what it considers to be a fair verdict.

Many legal professionals dislike juries exercising this right, judges often denying it exists. After being drafted into serving on a jury, you deserve all legal options available to you, so you can live with your verdict.

Thomas E Woods, Jr’s Nullification addresses a broader issue, “How to Resist Federal Tyranny in the 21st Century.” When the federal government does wrong, the states must assert their rights, although to central planning fanatics, like Nancy Pelosi, nullification is “like holding a crucifix before Dracula.”

Madison opposed tyranny

Two pioneers in resisting federal overreach were Thomas Jefferson and James Madison, united in opposing the Alien and Sedition Acts of 1798. I recall this from high school, as an obvious violation of First Amendment protections. What I do not remember learning is about the states’ resistance through nullification; odd, considering I attended James Madison High School (as did Ruth Bader Ginsberg, decades earlier). In retrospect, I recall little about the school’s namesake, other than his being a president whose wife, Dolly, made delicious ice cream.

Woods writes:
The very idea that the federal government might do something unconstitutional hardly enters into political discussions today. The vast bulk of Americans proceed through twelve years of government-funded education that (by an interesting coincidence) teaches them all about the wonders of the federal government, how lost they’d be without it, and how foolish it would be to worry that the Constitution might not authorize most of what it does.

An interesting tidbit about the A&S Acts, under which it was a crime to criticise Congress and the president, not the vice president. The president and most of Congress were Federalists, Vice President Jefferson a Republican. So partisanship preceded Harry Reid by a few years.

...this Assembly regret that they are thus obliged under a sense of paramount public duty to assert the unquestionable right of this State to abstain from any agency in the execution of measures, which are unconstitutional and despotic.
— Connecticut General Assembly, 1809

In fairness to my alma mater, no one is taught about this thread of American history, even law students. In fact, it has been buried so deep that the author had to unearth some of the original 18th century documentation.

Which brings us to the Supreme Court. Last month, I wrote that because they serve life terms after appointment by the president, approval by the Senate, they should be non-partisan and fair [refer to: “Bursting believability”]. I learned that in high school and have heard endless repetition.

There are holes in this theory. First, justices are appointed by Democrats and Republicans, and affiliated with one or the other branch of the ruling Incumbent Party, explaining why on ballot-access cases, the Court are disinclined to question the “two-party system,” which is not provided for in the Constitution — intentionally.

Second, shortly after the Constitution was ratified, it was observed that the Supreme Court is part of the federal apparatus and, so, likely to defend federal power, even if unconstitutional. “The error is the assumption that the General [federal] Government is a party to the constitutional compact. The States, as has been shown, formed the compact, acting as sovereign and independent communities.”

Jefferson, too

In 1833, Judge Abel P Upshur wrote, “That every act done by that Government [federal], not plainly within the limits of its powers, is void.” That is the essence of nullification. He further explains, “That each State has a right to say whether an act done by that Government is plainly within the limits of its powers or not.”

Nullification is far better than “acquiescence in measures which violate the Constitution.” Woods writes, “This history may all be very impressive, but everything changed after 1865, right? Weren’t the states forced into a subordinate position? Of course not.”

Although a reaction to federal overreach long before the Civil War, nullification has been relegated to a defence of slavery, and supposedly resolved by the War. In fact, nullification was used by Northern states refusing to enforce the fugitive-slave act.

Most Americans today oppose slavery, but that does not give the Feds license to exceed their power. Anticipating the possibility of the Union dissolving, like the EU, Jefferson wrote that Americans “would consider such a rupture as among the greatest calamities which could befall them, but not the greatest. There is yet one greater, submission to a government of unlimited powers.”

If the Supreme Court is accepted as the final arbiter, Judge Upshur asked, “Is it not perfectly clear, that if such a right exists, the Federal Government is an appellate tribunal, WITH POWER TO DECIDE, IN THE LAST RESORT, UPON THE CONSTITUTIONALITY OF ITS OWN ACTS?”

Nullification

The book, Nullification, is short and concise, but it contains original documents from the late eighteenth and early nineteenth century that are stylistically challenging to a modern reader, yet worth deciphering. Critics back then did not mince words, calling unconstitutional laws and actions “tyranny” and “monarchical.” Today, government stooges seem “manical.”

Notes, an index, and a handy copy of the US Constitution follow. A recommended study of an issue of special relevance today.

 
 

©2012 Gary Tutin

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