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Source link: http://archive.mises.org/12880/tom-woodss-book-on-nullification/

Tom Woods’s Book on Nullification

June 3, 2010 by

Amazon is letting us preorder Nullification: How To Resist Federal Tyranny in the 21st Century. The publication date is June 28.


Curt Howland June 3, 2010 at 8:03 am

Hey, he said it was just going to be “Nullification”!

Are we back to Ann Coulter’s publisher again, just like with “Meltdown: How to waste immense quantities of space on a book cover by summarizing the entire text in the subtitle”?

Abhilash Nambiar June 3, 2010 at 8:54 am

No Kindle edition?

Aaron Spurling June 3, 2010 at 10:33 am

As an ardent Libertarian myself, I hate to through cold water on this. However, as a lawyer I also feel compelled to point out that the legal doctrine of state nullification of federal laws was decisively laid to rest by the civil war. I don’t know whether Mr. Woods simply doesn’t know that, or whether he does know it and simply wants to argue for a revival of the doctrine. I think the former is highly unlikely, so I’ll assume the latter. In that event, however, I wouldn’t hold my breath waiting for the courts to revive the doctrine. To be blunt, it ain’t gonna happen.

Curt Howland June 3, 2010 at 11:00 am

Aaron, you’re not throwing cold water on the idea, trust me.

The idea here is not to justify Nullification, but to explain it to those who have not thought the matter through previously.

Capt Mike June 3, 2010 at 11:29 am

Yeah, and Christianity was “laid to rest” when they crucified Christ.

Derek Sheriff June 3, 2010 at 3:22 pm

Mr. Spurling,

With all due respect, questions of justice cannot be settled by a contest of arms. Was the question concerning the rights of the plains indians decisively laid to rest at Wounded Knee?
Second, nullification has nothing to do with obtaining a favorable court ruling, it is about the people of a state exercising their constitutional rights, backed by their state government with or without the federal government’s permission.

Stephan Kinsella June 26, 2010 at 11:45 am

Agreed, Derek. “As a lawyer,” I think Spurling is completely wrong.

Tom Woods June 3, 2010 at 10:55 am

Aaron, naturally I address this claim, though I consider it extremely peculiar. How does violence “decisively lay to rest” a historical/philosophical proposition?

As to whether the federal courts are likely to uphold it, of course they aren’t. So what? So our overlords won’t approve of our resistance — this is news? But if the resistance is widespread enough, and across enough states, well, who knows. The courts ruled against Angel Raich twice: once at the Supreme Court level, and another in the Ninth Circuit. California’s defiance continues.

Aaron Spurling June 4, 2010 at 10:44 am

Good heavens, people! I’m not saying I disagree with nullification. Nor am I trying to encourage anyone to throw themselves under a steamroller, nor am I suggesting that philosophical debates or matters of justice are resolvable by violence. I’m not saying any of those things. I’m simply saying that while there would be nothing either physically or logically impossible about a revival of nullification as a legal doctrine, as a matter of practical reality it simply is not going to happen.

This conclusion is not based on an assessment of the historical validity or the philosophical merits of the idea of nullification. It is based, rather, on solely pragmatic considerations.

Law operates largely on the basis of precedent, and it also provides the administrative framework for government. As a result, if the government is allowed to get away openly with a certain thing, that fact establishes a precedent which then effectively becomes law. But government authority is ultimately grounded in violence and the threat of violence. Thus, acts of violence by the government most certainly can and do settle issues of law. In that way the concept of nullification was indeed, for all practical purposes, disposed of by the civil war.

The only way for the doctrine to be revived peacefully would be via a decision of the United States Supreme Court. However, the judiciary (including the Supreme Court) is an inherently conservative institution (not necessarily in the political sense, but in the sense of being highly resistant to change). That fact is significant because reviving the nullification doctrine would amount to a revolution in American law of truly gigantic proportions. Although there is certainly no constraint of either physics or logic that would render such a thing impossible, it would run directly counter to the very nature of the judiciary. What I’m saying, then, is that the likelihood of such a thing actually occurring is so small as to be negligible — regardless of the historical or philosophical merits of the idea.

The only other way for the doctrine to be revived would be via extra-legal means. In other words, since the rejection of the doctrine was brought about by violence (i.e., the civil war), the revival of the doctrine could likewise be brought about only by violence. What we are talking about, then, is a tectonic shift in American history on the order of a second civil war.

Although a second civil war is, I suppose, a possibility, it too seems highly unlikely. I would also counsel anyone considering openly advocating such a thing to exercise extreme caution. For one thing, advocacy of such a position would lkely earn one the label of “kook” and thereby potentially discredit the cause of nullification. More importantly, though, is that it would come perilously close to advocating the violent overthrow of the United States government. In that event, one would be in danger of indictment on a criminal charge of sedition. I don’t think any of us really want to go that route.

SirThinkALot June 26, 2010 at 12:27 pm

A second american Civil war isnt that unlikely…I’d hate to see it happen, but I think it might be a real possibility in the near future.

Tom Woods June 3, 2010 at 10:56 am

There will be a Kindle edition by the release date or thereabouts.

Stephan Kinsella June 26, 2010 at 11:46 am

Nullifikindle! Kindlefication!

mikey June 3, 2010 at 12:27 pm

Aaron, if you are the type to obediently lie in front of a steamroller, so be it. But why tell others they should too? Jury nullification in drug trials? If people only knew they could!

Russ June 3, 2010 at 3:36 pm

You should write a book about incorporation and the 14th Amendment.

Bruce Koerber June 3, 2010 at 6:21 pm

This book is educational and it counteracts the propaganda of the unConstitutional coup so it is extremely important. How fortunate we are to be alive and well during the period when “END THE FED” and “Nullification” reached those seeking liberty and justice!

Dave Albin June 3, 2010 at 7:50 pm

The “funny” thing is (and I am saying this without a legal background), the law doesn’t seem to have a foundation anymore. We talk about being a nation of laws, and how proud we are of the Constitution, etc., and then we go and find ways around it all the time. Also, we forget the original purposes and circumstances of law (the 14th amendment comes to mind). I know that you legal types know a lot more about this than I do, but it seems that there should be all sorts of legal arguments and methods to nullify what the Fed does. I know they have a military that they could use to pound us into submission, but still……..

Dennis June 4, 2010 at 8:32 am

Anyone who has even casually read the United States Constitution understands that the document does not specify that the U.S. Supreme Court is the ultimate arbiter of the constitutionality of federal laws. This function was usurped by U.S. Supreme Court Chief Justice John Marshall. Since this power was not granted to the U.S. Supreme Court by the Constitution, logic dictates that the tenth amendment should be operative.

The letter and spirit of Thomas Jefferson’s Kentucky Resolution needs to be rejuvenated and implemented. Even more, the right of secession needs to be resurrected. The existing states should not be denied the right asserted and effectuated by the individual 13 colonies against the British Empire.

Nullification (including noncompliance) and secession are among the best counterweights that individuals have to increasingly tyrannical and leviathan central government.

Aaron Spurling June 4, 2010 at 10:54 am

It is true that the constitution does not specify that the Supreme Court is the ultimate arbiter of the constitutionality of federal laws. That is, it does not discuss the doctrine of “judicial review.” However, the doctrine is discussed favorably in the Federalist Papers, probably the best source we have for divining the intent of the framers. The framers of the constitution thus made it clear that they fully expected the Supreme Court to exercise the power of judicial review. Furthermore, there were other court decisions that affirmed the power of judicial review earlier in the history of the republic prior to the Marshall court’s decision. The case of Marbury v. Madison simply put the Supreme Court’s final stamp of approval on the concept.

Dennis June 4, 2010 at 2:38 pm

If the framers of the Constitution, through favorable discussions of the concept in “The Federalist Papers,” made it clear that they fully expected the Supreme Court to exercise the power of judicial review, why did they not specify the power in the Constitution? Could this omission be another example of their alleged duplicity? Is this another example of the apparent worthlessness of the tenth amendment?

Aaron Spurling June 4, 2010 at 5:06 pm

Dennis, your question is a reasonable one. Unfortunately, our historical knowledge of what the framers intended and why they chose to include some things in the constitution while not including other things is imperfect at best.

Regarding the matter of why they did not choose to make the doctrine of judicial review explicit in the constitution, we can only speculate. My best guess is that the framers, many of whom were trained in law, simply assumed the doctrine would apply as part of the inherent power of the judiciary. By the time the question was made explicit by the comments of some of the anti-federalists, the convention was over and the draft of the proposed constitution was complete and could not be easily changed. As I’ve indicated, though, I’m merely speculating on this, and I’m wide open to other explanations.

Also, I have to say that I don’t understand what you mean by “their alleged duplicity” or how this relates to “the apparent worthlessness of the tenth amendment.”

Jerry June 30, 2010 at 10:42 pm

Since this is my first time to comment on any item at this blog site, I want to congratulate the contributors on the civility of their discourse.The Main Points:1. Mr Spurling correctly intreprets the history of nullifcation in 19th century American politics.2. Captain Mike correctly reflects the power (and irresistability) of an idea who’s time has come.3. No one seems to realize that our most basic existance as a political fact was predicated on the Declaration of Independence..essentially nullifying English rule in the signatory colonies.4. Politics and the laws that the political process produces are the art of the possible. In mid-19th century America, nullification was not possible because too many people willed the impossibility of nullification. Those people expressed their will in the form of musket balls, sabres, and cannister shot. The people who willed nulification to be possible simply didn’t have enough of the aforementioned balls to make their will a reality.My Conmmentary:Since the end of the Civil War, and at an accellerated pace since the election of F. Roosevelt the federal govt. has been on an uninterrupted power grab at the expense of the individual citizens, the states, and to some extent other nation-states. What we see here in the first decades of the 21st century is the apogee of the political pendulum’s swing towards federal centralized power. In recent decades this centralization has taken on a decidely communal flavor, and now we see real schisms open between traditional American political philosophy and the “vanguard of the proletariat”. George Washington summarized the American Revolution as “moderate men driven to immoderate means”. As we see more and more citizens awaken their political sensibilities then we will see that nullification and other heretofore “immoderate” political ideas become increasingly possible.

Mark Taylor July 4, 2010 at 4:27 pm

My conclusion on the issue of legal interpretation of the constitutionality of nullification is that it makes no difference. That is the point. Too suggest nullification must be legitimized by a federal court is paradoxical. What it comes down to then is who has the biggest gun. Unfortunately, I must agree with Spurling on the point that it seems highly impracticle, in that enough people and/or states are unlikely to come on board in order to create a formidable foe against the violence of the Federal Government. However, I do perhaps hold a small, however irrational, hope that my fellow Americans will surprise me. Most of the people I know aren’t interested in upsetting the status quo of their everyday lives. However, if their livelyhoods were disrupted against their will already, and they were forced to take a side, I know very few of them who are big fans of the Fed Gov. So who knows. Anyway, my point is that the legitimacy of nullification comes not from the courts, but from the strength and will of those who are refusing to comply. Ah yes, one more thing. The “Federalist Papers” were most likely written in large part by Alexander Hamilton, the same man who proposed a king at the Constitutional Convention. If this is the document from which the courts interpret original intent, it is no wonder the Supreme Court, composed of unelected members who serve for life, assumed the power to serve as the final say in all matters whatsoever.

Eugene Garner July 31, 2010 at 10:36 am

Although I an not a lawyer, am totally aware of nullification. It seems to me just that awareness is the power. When serving on a jury it opens your mind to whether the law is just and/or is relevant to the case you are judging.

Finding the defendant not guilty is not traceable to your knowledge of nullification, you just can’t be blatant about it.

I agree nullification for states may be difficult as several lawyers have pointed out here, but are they acutely aware of the new mood and awareness that ‘we the people’ are beginning to manifest? The natives are getting restless.

tagemya October 13, 2010 at 6:00 pm

thanks….. good post

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james November 16, 2010 at 11:10 pm

Is there a review of “Nullification” anywhere?

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