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.
It is interesting you hold John Marshall in such high esteem with this matter, considering your dismissal of him when he contradicts you and The Lincoln on habeas corpus. That being noted, I'll permit him to yield to Thomas Jefferson:
"The future inhabitants of the Atlantic & Missipi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it. Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Missipi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better." - Letter to John C. Breckinridge, August 12, 1803
Trust me - he'd be better served by a vetrinarian.
It is interesting you hold John Marshall in such high esteem with this matter, considering your dismissal of him when he contradicts you and The Lincoln on habeas corpus.
Been doing some work on that. Lincoln's attorney general wrote an opinion based on the precept then current at the time that each of the three branches of government had the right to interpret the Constitution for itself. It was not current at the time to accept Supreme Court rulings as precedent, but only applying to the particular case.
That may be why Chief Justice Rehnquist, as you know, says the issue has never been decided.
Of course any --case-- brought before the Supreme Court that posited legal secession would have been decided against the secessionists.
They knew that, which is why they resorted to violence instead of the courts.
Walt
I have some Jefferson quotes too.
"It is hoped that by a due poise and partition of powers between the General and particular governments, we have found the secret of extending the benign blessings of republicanism over still greater tracts of country than we possess, and that a subdivision may be avoided for ages, if not forever." --Thomas Jefferson to James Sullivan, 1791
"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; to each State, severally, the care of our persons, our property, our reputation and religious freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801.
"The preservation of the general government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad, I deem [one of] the essential principles of our government, and consequently [one of] those which ought to shape its administration." --Thomas Jefferson: 1st Inaugural Address, 1801.
"It is of immense consequence that the States retain as complete authority as possible over their own citizens. The withdrawing themselves under the shelter of a foreign jurisdiction is so subversive of order and so pregnant of abuse, that it may not be amiss to consider how far a law of praemunire [a punishable offense against government] should be revised and modified, against all citizens who attempt to carry their causes before any other than the State courts, in cases where those other courts have no right to their cognizance." --Thomas Jefferson to James Monroe, 1797. ME 9:424
It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations." --Thomas Jefferson to Spencer Roane, 1821. ME 15:328
"The spirit of concord [amongst] sister States... alone carried us successfully through the revolutionary war, and finally placed us under that national government, which constitutes the safety of every part, by uniting for its protection the powers of the whole." --Thomas Jefferson to William Eustis, 1809. ME 12:227
"The interests of the States... ought to be made joint in every possible instance in order to cultivate the idea of our being one nation, and to multiply the instances in which the people shall look up to Congress as their head." --Thomas Jefferson to James Monroe, 1785. ME 5:14, Papers 8:229
"By [the] operations [of public improvement] new channels of communication will be opened between the States; the lines of separation will disappear, their interests will be identified, and their union cemented by new and indissoluble ties." --Thomas Jefferson: 6th Annual Message, 1806.
http://etext.lib.virginia.edu/jefferson/quotations/jeff1060.htm
Walt
And in which life was nasty, brutish and short.
Walt
Ah, but Marshall's precedent WAS applied to the particular case in Merryman. The Lincoln failed to appeal Merryman as was the constitutional procedure if he disagreed with it. Try again.
Post all you want. It is not a matter of dispute that Jefferson believed division of the union should be avoided and, as his on belief, strongly favored retention of the nation as a whole. He did however acknowledge its possibility, hence his statement "God bless them both, & keep them in union, if it be for their good, but separate them, if it be better."
"No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments."
Chief Justice Marshall, McCulloch v. Maryland, 4 Wheat. 316, (1819)
"When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument."
Chief Justice Marshall, Sturges v. Crowninshield, 4 Wheat. 122, (1819)
"At the first presidential election, the appointment of electors was made by the Legislatures of Connecticut, Delaware, Georgia, New Jersey, and South Carolina. ... Fifteen states participated in the second presidential election, in nine of which electors were chosen by the legislatures. ..."We are not a democray. We are a Constitional Republic. The "people" of the US are not lumped into one common mass.
Justice Fuller, McPherson v. Blacker, 146 U.S. 1, (1892)
On the other hand, the argument in favor of withdrawal by any state from the Union has ample support in the history of the nation, history of the Constitution, and writings of the Framers. That is the theoretically correct view of the relationship of the states to the federal government.
Unfortunately, losing a war is the ultimate way of losing a debate. The secessionists lost the "War between the States;" so theory be hanged, that argument is lost for all time.
If federalism is to be saved, largely as intended, we will have to accomplish that within the framework of the existing United States. The same applies to reestablishing individual rights, as once intended.
Congressman Billybob
Of course; no dreamer would compound the mass of the American people into one.
"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.
The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empire--for some purposes sovereign, for some purposes subordinate."
--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821
Walt
No, that is the point. We take the idea of precedent for granted; in the 1860's they did not.
You're blasting Lincoln over this, is a modern day judgement using modern day standards. That is always just silly when historical people are concerned. It's how Christopher Columbus went from "Admiral of the Ocean Deep" to syphilitic oppressor of minorities.
Professor Neely says that it was a truism in Lincoln's day that he saved Maryland for the Union. He was widely applauded for doing so. That is enough. But I thought of this little quoted part of Lincoln's first inaugural:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
So people back then had a different perception of the way the government functioned. Lincoln's inaugural was March 4, Merryman was arrested in late April, I believe.
You are putting a modern day judgement on an historical person. That is just silly.
I condemn the slave power because they were condemned at the time. I call them traitors because they were called traitors at the time.
Lincoln was not condemned the way you do --at the time-- (there was certainly a lot of discussion), so you have no right to criticize him now.
Walt
It supports the Natural Law Right to Revolution. Not one of the men who pledged their "Lives, Fortunes and Sacred Honor" by signing the Declaration considered their actions to be nullification of British law. They, in-fact, embraced British law and rebelled against the Crown only after repeated appeals to the King to place them under the full protection of British law were rejected.
Good point. A survey of our history would find that the vast majority of abuses of liberty have been on the state and local government level, not on the Federal level. Infact, through the 100 years between the civil war and the 1960s, virtually every "States Rights" argument was in reality an argument for the right of state governments to ignore individual rights and liberties guranteed by the Federal Constitution.
That history of abuse and over reaching by some states has deeply damaged the concept of states rights.
That the United States form, for many, and for most important purposes, a single nation, has not yet been denied.
andThe Constitution of the United States was formed not, in my opinion, as some have contended, by the people of the United States, nor, as others, by the States, but by a combined power, exercised by the people, through their delegates, limited in their sanctions, to the respective States.
Had the Constitution emanated from the people, and the States had been referred to merely as convenient districts by which the public expression could be ascertained, the popular vote throughout the Union would have been the only rule for the adoption of the Constitution. This course was not pursued; and in this fact, it clearly appears that our fundamental law was not formed exclusively by the popular suffrage of the people.
The vote of the people was limited to the respective States in which they resided . So that it appears there was an expression of popular suffrage and State sanction, most happily united, in the adoption of the Constitution of the Union.
The powers given, it is true, are limited; and no powers which are not expressly given can be exercised by the Federal Government ; but, where given, they are supreme. Within the sphere allotted to them, the coordinate branches of the General Government revolve unobstructed by any legitimate exercise of power by the State governments. The powers exclusively given to the Federal Government are limitations upon the State authorities. But, with the exception of these limitations, the States are supreme, and their sovereignty can be no more invaded by the action of the General Government than the action of the State governments in arrest or obstruct the course of the national power.
Every State is more or less dependent on those which surround it, but, unless this dependence shall extend so far as to merge the political existence of the protected people into that of their protectors, they may still constitute a State. They may exercise the powers not relinquished, and bind themselves as a distinct and separate community.
Justice McLean, Worcester v. Georgia, 31 U.S. 515, (1832)
It [the federal Constitution] defines the powers of the General Government, and imposes certain restrictions and duties on the States; but, beyond this, it in no degree affects the powers of the States. The powers which belong to a State are exercised independently; in its sphere of sovereignty, it stands on an equality with the Federal Government, and is not subject to its control.
Justice McLean, Prigg v. Pennsylvania, 41 U.S. 539, (1842)
Dude needs to read the Preamble.
Walt
Furthermore, since the U.S. is the guarantor of my freedom, and if a state can secede from it-threatening my freedom-then secession is illegal.
Look, I am a born and bred Alabaman, and I've heard it all on nullification and states rights. And I don't buy it. If the South had won, after voluntarily participating in the Election of 1860, I probably wouldn't be here today. None of us would. Those of us Down South would probably be part of the Commonwealth.
As far as your Reveloutionary argument, King George & Parliament left us, we didn't leave them. And won our freedom on the Battlefield, that ultimate issue solver (see Civil War).
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