The 'rough man' from Illinois in 1860.
Posted on 12/10/2002 6:57:25 AM PST by billbears
Not long ago I wrote an article on nullification for a well-known libertarian publication. Nullification is the idea, pioneered by Thomas Jefferson and John C. Calhoun, that an American state has the right to "nullify" federal legislation that it believes violates the Constitution. As Virginian political thinker Abel Upshur put it, since no common umpire exists between the federal government and the states to render judgments on breaches of the Constitution, each state – as a constituent part and co-creator of the Union – has to make such determinations for itself. (The idea that the Supreme Court, itself a branch of the federal government, could function as this common umpire is rather like saying that we shouldn’t feel apprehensive that a mafia family has taken over our town since, after all, if we have a dispute with them their cousins will be happy to adjudicate.)
Along came "libertarian" Timothy Sandefur, who (I’m told) argues in a recent issue of Liberty magazine against the right of a state to secede and who, as a follower of Daniel Webster, denies to the states any authentic existence or any real sovereignty. Unable to get his reply published in the magazine in which my article appeared, he posted it to his website. His attack on my article showed him to be only very superficially acquainted with the issues at stake (he claimed, for instance, that nullification was intended to be carried out by state legislatures; why all this time did we think it was to be done in sovereign conventions?).
But his article was nevertheless useful in that it illustrated a standard blind spot in mainstream classical liberalism: having absorbed virtually all of the basic assumptions of modern political theory, the classical liberal cannot conceive of secession, devolution, competing or overlapping jurisdictions, or indeed any of the fabric that ultimately made Western liberty possible. They imagine a strong, large-scale state defending everyone’s natural rights. And they’re actually surprised when it never works!
A surprising number of my students, when nullification is explained to them, find it an intriguing idea. At the same time, I have plenty of students for whom Daniel Webster’s conception of an unbreakable union is so familiar, since they’ve all learned what American history they know from an absurd Lincolnian point of view, that they cannot imagine any other way of organizing society. They honestly believe that voting guarantees that only good legislation will be enacted, and that to defy "majority rule" is to commit some kind of blasphemy. They cannot break out of the model of the single, irresistible sovereign voice; they believe it is this that makes a society wealthy and strong.
Yet it was in the context of a very different model of society, in the Middle Ages, that Western liberty took root. The modern idea of sovereignty simply did not exist. As Bertrand de Jouvenel observes of our day and theirs,
A landlord no longer feels surprised at being compelled to keep a tenant; an employer is no less used to having to raise the wages of his employees in virtue of the decrees of Power. Nowadays it is understood that our subjective rights are precarious and at the good pleasure of authority. But this was an idea which was still new and surprising to the men of the seventeenth century. What they witnessed were the first decisive steps of a revolutionary conception of Power; they saw before their eyes the successful assertion of the right of sovereignty as one which breaks other rights and will soon be regarded as the one foundation of all rights.
In such a society, where a multitude of legal jurisdictions abounded and no single sovereign voice could be found, the king did not make the law but was himself bound by it. Law was something to be discovered, not made (as with the absolute monarchs and parliaments of the modern age). In his classic study of Cardinal Wolsey, Alfred Pollard described the decentralization of power that characterized the Middle Ages, as well as the lack of reliance on legislation:
There were the liberties of the church, based on law superior to that of the King; there was the law of nature, graven in the hearts of men and not to be erased by royal writs; and there was the prescription of immemorial local and feudal custom stereotyping a variety of jurisdictions and impeding the operation of a single will. There was no sovereignty capable of eradicating bondage by royal edict or act of parliament, regulating borough franchises, reducing to uniformity the various uses of the church, or enacting a principle of succession to the throne. The laws which ruled men’s lives were the customs of their trade, locality, or estate and not the positive law of a legislator; and the whole sum of English parliamentary legislation for the whole Middle Ages is less in bulk than that of the single reign of Henry VIII.
The great sociologist Robert Nisbet described medieval society as "one of the most loosely organized societies in history." Political leaders who desired centralization found themselves up against the historic liberties of towns, guilds, universities, the Church, and similar corporate bodies, all of whom guarded their (often hard-won) liberties with great vigilance, and all of whom would have been baffled at the modern idea that a single sovereign voice, whether of a king or of "the people," could on its own authority have redefined or overturned those rights, whether or not "majority rule" sanctioned it.
Our "democracy" today feels itself bound by no such obligations, and routinely overturns settled ways of life in one community after another. The myths of democracy – that it is necessary for economic prosperity, that it guarantees that government will not become abusive, that it ensures that the "will of the people" is expressed in law – seem more absurd and ridiculous than ever. Today we have a two-party system that is so utterly corrupt, so totally dominated by crooks and ignoramuses, and so deliberately rigged against any outside challenger – and with a media positively wedded to the current arrangement – that it is beyond laughable to speak in any way of "the will of the people," if such a thing can be said to exist in any case. I’m sure the same students who reject nullification as treason against the holy will of the majority would defend the upcoming Iraq war as a reflection of the will of the people, despite the fact that "the people" had virtually no antiwar candidates to vote for.
Earlier this year, 90 percent of the US Congress voted for a resolution supporting the policies of Israeli Prime Minister Ariel Sharon, in a show of support much greater than his own government gives him. Was that a reflection of the will of the American people?
The vast majority of Americans know absolutely nothing about the US Constitution and what it authorizes, so the idea that their votes alone will prevent unconstitutional legislation is simply laughable, and completely contradicted by the evidence of everyday life and indeed of the entire twentieth century. Moreover, most Americans know absolutely nothing about, say, money and banking, so how can the Federal Reserve be described with a straight face as what "the people" demand? Do the people demand a million illegal immigrants a year?
Should there be a state in our day with enough courage and intelligence to resist the unconstitutional federal interference in their affairs that goes on as a matter of course – just consider the popular referenda in Colorado and California alone that federal courts imperiously overturned in the 1990s – then far from lamenting this descent into "anarchy," we should positively rejoice that at last the American people have come to understand their own tradition once again.
I don’t want to romanticize the people too much: plenty of government expansion has taken place with their approval or connivance. The great John Randolph of Roanoke referred to unfettered democratic governance as rule by "King Numbers," but so many students have been raised on the religion of democracy that they cannot even conceive of how a state or community might be oppressed by the untrammeled "democracy" of the remainder. I sometimes ask: if majority rule is such a precious principle, and if I hold my property only at the sufferance of a majority of my fellows, then why not let India and China vote on how much American wealth they’d like to confiscate? That would be "majority rule" in action, so why exactly would it be wrong?
Hans Hoppe is right: no "limited government" can stay that way for long, and if anything the democratic system only accelerates the move away from government’s original limitations. Once the right to tax is conceded to an institution said to possess a monopoly on the use of force, no feeble constitution can stand in the way of its expansion.
The genuine reactionary in our day should not be pining to take over the reins of the modern state, but should rather aim to dismantle this destructive institution that was absolutely foreign and unknown to medieval Europe. As Hoppe, Ralph Raico, and others have pointed out, it was precisely the decentralized nature of European political life that allowed capitalism to develop and the good things of civilization to flourish. According to David Landes, "Because of this crucial role as midwife and instrument of power in a context of multiple, competing polities (the contrast is with the all-encompassing empires of the Orient or the Ancient World), private enterprise in the West possessed a social and political vitality without precedent or counterpart" (emphasis in original). Likewise, Jean Baechler wrote that "the expansion of capitalism owes its origins and raison d’être to political anarchy."
As radical as it doubtless sounds, the time has come to think very seriously about alternatives to the modern state. That the central state here in America is on the side of every degenerate aspect of culture and society goes without saying, and this is true regardless of which party is in power. (Bob Dole’s Viagra commercials just about sum up the Republican Party on cultural questions.) It has squandered everyone’s retirement money, slowed job creation, created the business cycle, debased the currency, all but nationalized education, dictated social policy to every community in America, confiscated money from ordinary Americans to pay farmers not to grow anything, made war on freedom of association – I could go on for quite a while. And what it’s supposed to do – protect us from criminals and from foreign attack – it does appallingly badly. (Remember the visas our immigration service issued to the September 11 hijackers months after the fatal attacks?) Our legal system is a complete shambles, which is why private dispute resolution companies are flourishing.
As Donald Livingston has argued, the modern unitary state has a lot to answer for, having been responsible for terror and destruction without precedent in history:
Its wars and totalitarian revolutions have been without precedent in their barbarism and ferocity. But in addition to this, it has persistently subverted and continues to subvert those independent social authorities and moral communities on which eighteenth-century monarchs had not dared to lay their hands. Its subversion of these authorities, along with its success in providing material welfare, has produced an ever increasing number of rootless individuals whose characters are hedonistic, self-absorbed, and without spirit. We daily accept expropriations, both material and spiritual, from the central government which our ancestors in 1776 and 1861 would have considered non-negotiable.
Unworkable and utopian, some will say of the pure private-property order. But the more you think about it, the clearer it becomes that what is truly unworkable and utopian is the idea of "limited government," whose epitaph stands right before our very eyes.
Interesting notion but if all the States could agree the Constitution would not prevent such an outcome.
Sure it was. Do you even know what an ex parte ruling is, Walt? It's an application for court action where only "the one party" seeking the action participates. Courts can and do issue rulings in cases of this nature, as happened with Merryman.
The whole concept of "nullification" is unconstitutional. It cannot be squared with the line in the Constitution itself, that it is "the supreme Law." The Constitution cannot be "the supreme Law," if it can be overturned by decision of Nebraska, Arkansas, whatever.
The whole concept of passing unconstitutional legislation is unconstitutional. If the Constitution is "the supreme law," then not even the federal government can supercede it. So, then, what is the most logical recourse for a state when the U.S. Congress violates the Constitution? Hope and pray that some day we will have enough conservative justices on the Supreme Court to overturn every unconstitutional passed by Congress throughout our nation's history?
Interesting notion but if all the States could agree the Constitution would not prevent such an outcome.
Yeah it does.
"If all the states, save one, should assert the power to drive that one out of the Union, it is presumed the whole class of seceder politicians would at once deny the power, and denounce the act as the greatest outrage upon State rights. But suppose that precisely the same act, instead of being called "driving the one out," should be called "the seceding of the others from that one," it would exactly what the seceders claim to do; unless, indeed, they make the point, that the one, because it is a minority, may rightfully do, what the others because they are a majority may not rightfully do. These politicians are subtle, and profound, on the rights of minorities. They are not so partial to that power, which made the Constitution, and speaks from the preamble, calling itself "We the People."
A. Lincoln, 7/4/61
Walt
Sure it was. Do you even know what an ex parte ruling is, Walt? It's an application for court action where only "the one party" seeking the action participates. Courts can and do issue rulings in cases of this nature, as happened with Merryman.
I do know what Ex parte means.
The government did not particpate; Taney didn't invite them to. He was too busy with his agenda of helping the slave power.
Walt
Yes Walt. Roger Taney, the properly seated United States Chief Justice serving on the U.S. Circuit Court at the time. You see, Walt. Under the American judicial system cases typically don't go straight to the Supreme Court first. They start in lower courts and work their way up on appeals. The U.S. Circuit Court is the one right below the Supreme Court, and the loser in cases before the Circuit Court can appeal them to the Supreme Court. The Lincoln did not do so.
There was no case, there was an Ex Parte decision
Ex parte rulings are made on cases, Walt. They happen when one of the parties refuses to appear before the court on a case, and in Merryman the military authorities refused Taney's summons to produce a writ. Try again.
So many interludes and so little time. Mostly interludes with white women, but not entirely. LOL
Wonder what they think about that when you are preaching at the Mayfair Church? LOL
"Particular cases."
Thanks for the cite.
Walt
Ex parte rulings are made on cases, Walt. They happen when one of the parties refuses to appear before the court on a case, and in Merryman the military authorities refused Taney's summons to produce a writ.
The government didn't have to appear, based on the standard then applicable.
Walt
The 'rough man' from Illinois in 1860.
Evidently you do not as your statements indicate a lack of understanding of its nature.
The government did not particpate; Taney didn't invite them to.
Again, you show you have not even the slightest clue as to what you are talking about. Read the Merryman decision, Walt. Taney ruled ex parte because the respondents, the government which was holding Merryman without a writ, refused to recieve Taney's attempts to serve them on the case by way of U.S. Marshall. You can read it in Merryman case itself:
"The clerk issued the writ of attachment as directed. At twelve o'clock, on the 28th May 1861, the chief justice again took his seat on the bench, and called for the marshal's return to the writ of attachment. It was as follows: 'I hereby certify to the Honorable Roger B. Taney, chief justice of the supreme court of the United States, that by virtue of the within writ of attachment, to me directed, on the 27th day of May 1861, I proceeded, on this 28th day of May 1861, to Fort McHenry, for the purpose of serving the said writ. I sent in my name at the outer gate; the messenger returned with the reply, 'that there was no answer to my card,' and therefore, I could not serve the writ, as I was commanded. I was not permitted to enter the gate. So answers Washington Bonifant, U. S. Marshal for the District of Maryland.'"
Hence Taney had to rule ex parte.
But they had no right to simply ignore rulings they did not like and without further appeal within the constitutional judiciary system.
Marbury makes it very clear, Walt - "The judicial power of the United States is extended to all cases arising under the constitution."
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