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.
So you hold that The Lincoln was not bound to follow the procedures of the court system?
That was the standard of the day. Taney said the Constitution meant one thing; the executive branch was within its rights --by the standards of the day-- to say it meant something else.
I admit I --myself-- have been holding Lincoln to modern day standards on this -- but I have just in the last week become familiar with Attorney General Baker's opinion on this. Today's standard was not the one in effect in the 1860's.
You are throwing up your hands in disbelief "LOOK AT THAT BUM LINCOLN", when what he was doing was entirely within the useages of the day.
It's just silly to hold historical people to modern day standards.
This interpretation is buttressed by a couple of things: Andrew Jackson being reimbursed by Congress on a fine he paid for suspending the Writ -- he wasn't even president.
And the current Chief Justice saying that the question of whether the president can suspend the Writ has not been answered to this very day.
Walt
There was no case. There was an ex parte decision.
Now, Merryman -was- indicted for treason. He spent a total of 49 days in jail.
Instead of blasting the Lincoln administration for arresting him (he was arrested without Lincoln's knowledge, BTW) you ought to be lauding Lincoln's mercy for not giving him the kind of justice that the 40 loyal Texans got the next year in Gainesville, Tx, or the type the 22 loyal North Carolinians got from George Pickett or the 100+ Union POW's got from their captors at Saltville, VA, and on and on and on.
As you know, not one person arrested on habeas corpus was executed.
Also, there is no definitive figure on the number arrests on habeas corpus grounds, although 13,000 seems about right. Mercy!
But the so-called CSA arrested @ 4,000 people on similar charges and for similar reasons.
You neo-reb cretins have too long set the parameters of all this.
Lincoln always held out the hand of mercy and conciliation; the so-called CSA was always ready with a gibbet.
Walt
Your version of history is either a terrible misread or a willful distortion, Walt. Each branch of the Constitution was certainly within its rights to offer its own interpretation of the Constitution and, I would argue, still is today. But that does not mean other branches can simply ignore the check of judicial oversight when it is exercised by the courts. If it did, none of the major court rulings of the 19th century mean anything because they would be unenforceable against even a single differing opinion elsewhere in the government. If that is the way you want it, it is fine with me though...as long as you apply it consistently, which means I shouldn't expect to see you quoting your beloved Prize Cases anytime soon.
but I have just in the last week become familiar with Attorney General Baker's opinion on this.
The opinion of an attorney general does not carry the legal weight of the court's ruling, Walt, and has not carried the legal weight of the court's ruling since the beginning. Try again.
It's just silly to hold historical people to modern day standards.
It would be, but you have yet to demonstrate this is happening. Until then it appears obvious that you are grasping at straws as you drown in the sea of your own lies.
Andrew Jackson being reimbursed by Congress on a fine he paid for suspending the Writ -- he wasn't even president.
So what. Since when was it known that Congress always operates within the bounds of the constitution?
And the current Chief Justice saying that the question of whether the president can suspend the Writ has not been answered to this very day.
He can say it all he wants in speeches at every law school in the country. It still does not negate Bollman, the standing precedent on the matter. Try again.
Really? Cause Justice Taney says otherwise...
So what?
The Executive branch has as much right to interpret the Constitution as the Judicial branch did.
"The success of the Maryland policy became a political byword and was celebrated, beyond the borders of Maryland, throughout the war, Thus in 1863, a Loyal Publication Society pamphlet on the War Power of the President explained the necessity of military arrests rather than reliance on the courts by pointing to that familiar example:
When the traitors of the loyal state of Maryland were concocting their grand scheme to hurl the organized power of that state against the government, probably not a handful of them was known to be guilty of any act for which he could ever have been arrested by civil process. And whatever their offenses against the laws might have been, and whatever the fidelity of the courts in that lurisdictlon, the process of civil law would have been far too slow to prevent the consummation of the gigantic treason which would have added another state to the rebellion.... Courts could not have suppressed this unholy work, but the summary imprisonment of those few men saved the state of Maryland to the Union cause.Republicans would later enjoy substantial bipartisan agreement on the necessity of the early arrests in Maryland.
William K. Seward thought they worked, too. When an old associate of Seward came to Washington to plead for the release of a political prisoner from Kentucky held in Fort Lafayette, the secretary of state readily admitted that no charges were on file against the prisoner. When asked whether he intended to keep citizens imprisoned against whom no charge had been made, Seward apparently answered: "I don't care a d—n whether they are guilty or Innocent. I saved Maryland by similar arrests, and so I mean to hold Kentucky."
The earliest days of the Uncoin administration taught the president and his cabinet lessons they never forgot. In fact, these days left fiercely indelible marks on them. This was especially true of Seward. in 1864, when the artist Francis B. Carpenter unveiled his huge historical canvas commemorating the first reading of the Emancipation Proclamation to the cabinet, the secretary of state scoffed at It. He told the artist, at a party given at Gideon Welles's residence, that he had been wrong to choose emancipation as "the great feature of the Administration."
Seward told him [Welles recalled] to go back to the firing on Sumter, or to a much more exciting one than even that, the Sunday following the Baltimore massacre, when the Cabinet assembled or gathered in the Navy Department and, with the vast responsibility that was thrown upon them, met the emergency and its awful consequences, put in force the war power of the government, and issued papers and did acts that might have brought them all to the scaffold.The first suspension of the writ of habeas corpus occurred the very week after that fateful Sunday cabinet meeting. Gideon Welles, the secretary of the navy, did not care for Seward, but he remembered those days just as the secretary of state did:
Few, comparatively, know or can appreciate the actual condition of things and state of feeling of the members of the Administration In those days. Nearly sixty years of peace had unfitted us for any war, but the most terrible of all wars, a civil one, was upon us, and it had to be met. Congress had adjourned without making any provision for the storm, though aware that it was at hand and soon to burst upon the country. A new administration, scarely acquaited with each other, and differing essentially in the past, was compelled to act, promptly and decisively.And act they did.
--"The Fate of Liberty, Abraham Lincoln and Civil Liberties" p. 31 by mark Neely.
Walt
Downplaying the severity of conditions experienced by the victims of The Lincoln's act does not get you around that act itself, Walt. Nor does it make that act any less unconstitutional. Really. You should know better than to try that excuse. Try again.
That is a modern day idea. It was only starting to have currency in the 1860's. The idea current --then-- was that court rulings only applied to the specific case.
And Ex Parte Merryman was not even a case. It was an opinion, and the Executive branch was entitled to its own opinion, by the standard of the day.
Walt
'What' is that you said "Lincoln was not condemned the way you do --at the time--." Yet Justice Taney condemned him --at the time-- for the same action I condemn him today. Hence your statement is a lie.
The Executive branch has as much right to interpret the Constitution as the Judicial branch did.
But NOT the right of judicial review of the other branches which, established firmly in Marbury, is the main judicial check on the power exercised by the other branches. Try again, Walt.
ROFL!!
Merryan was released on bail. That's a lot better than being hanged.
Walt
But NOT the right of judicial review of the other branches which, established firmly in Marbury, is the main judicial check on the power exercised by the other branches. Try again, Walt.
What I am seeing in the record is that Marbury gave the Court the right to judge cases, not to counteract the Executive. That is what Lincoln's comments in his inaugural address mean.
Lincoln was under -no- charge, based on the standards of the day, to release Merryman based on anything Taney did or said as a circuit court and certainly not based just on an Ex Parte decision.
Walt
What if all the other states seceded from the one?
Walt
The courts? What courts? You mean Taney?
There was no case, there was an Ex Parte decision by a man who showed in Dred Scott that he cared nothing for the law.
Walt
History says otherwise:
" It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply...The judicial power of the United States is extended to all cases arising under the constitution." - Marbury v. Madison, 1803
The idea current --then-- was that court rulings only applied to the specific case.
If that is so, then Taney's ruling, which The Lincoln ignored and refused to appeal, applied to The Lincoln's suspension of habeas corpus.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.