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Source link: http://archive.mises.org/3811/jefferson-on-nullification/

Jefferson on Nullification

July 11, 2005 by

I’ve recently posted some links on federalism, Kelo, and related matters. One of them is the 1799 Kentucky Resolution (2), written by Thomas Jefferson.

The meat of the final resolution adopted in 1799 is fairly short, and beautifully eloquent. Take a look at it–it’s not too hard to follow, even with the antiquated, flourishing English. Those who attack us libertarian advocates of federalism as being some kind of troglodyte neoconfederates would also have to attack this eloquent, intelligent attempt to maintain the original structure of the federation so as to keep the new central state within limits. Libertarians who caricature and impugn the motives of those of us who have a respect and fondness for federalism ought to be ashamed of themselves. Note how many of the warnings and predictions here came true.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.

It is just beautiful and sensible. The federal union was created for purposes, but it should not be “permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained.” For if it is permitted to disregard the limits placed on it by delegating only certain powers to it–that is, if it seizes powers not granted to it–then “annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence”. In other words, the purpose of “states’ rights” or state governments, from the point of view of the union, was to prevent the new, limited, federal government from becoming a “general consolidated one”–that is, a large, unlimited, central state of plenary powers.

The Resolution notes that the idea “that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers.” This is eminently sensible. If the feds are the own judges of the limits on their powers, then those limits will surely be gradually eroded, and they will gradually declare themselves to have powers never really delegated to them.

So who is it that can determine whether federal law is constitutional? “That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” In other words, it is the states, the ones who created the new federal government by means of the compact (Constitution), and who are parties with each other to that compact, who have to be the judge of Constitutionality, not the new state itself.

Then, having established its right to judge the constitutionality of federal actions, Kentucy declares “that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution.” And what libertarian can disagree?

What a shame that some libertarians not only reject these principles, which were designed to keep the federal government in check–they not only reject these principles, but they malign modern advocates of similar views as being racist throwbacks fighting progres. What a shame. What an embarrassment.

{ 20 comments }

Manuel Lora July 11, 2005 at 9:20 pm

I’ll drink to the 10th amendment, the cornerstone of it all. Here’s one for you, TJ!

Tom Woods July 12, 2005 at 12:55 am

I couldn’t have said it better, Stephan. As I pointed out in my Mises Institute seminar and in an article for LewRockwell.com, the fact that Daniel Webster thought the states would have the duty to interpose to prevent the implementation of a proposed military conscription plan during the War of 1812 shows just how potent these ideas once were. All this political creativity is now gone, even among libertarians, all too many of whom think a centralized, Hamiltonian regime protecting everyone’s individual rights is the only way to go.

What I always want to ask is: how’s that been working for you?

Dennis Sperduto July 12, 2005 at 11:38 am

Thank you Stephan for the excellent research and postings. I believe it is reasonably accurate to conclude that our federal government would not have grown to anywhere near its current leviathan status if the principle of nullification had been operative. The logic of nullification is clear and compelling, and any supporter of liberty and truly limited government should recognize its practical importance.

Now if only succession could re-emerge as an option. After all, succeed is precisely what the 13 colonies did from Great Britain.

Joe Kelley July 12, 2005 at 12:35 pm

“What a shame that some libertarians not only reject these principles, which were designed to keep the federal government in check–they not only reject these principles, but they malign modern advocates of similar views as being racist throwbacks fighting progres[s]. What a shame. What an embarrassment.” (Stephan Kinsella)

What a shame indeed.

“If the Constitution truly had the built in protections to prevent opportunistic politicians from abusing it, we would not be in the mess we are today. There is a very good reason the Patriot who said, “give me liberty or give me death” refused to sign that document.”
http://www.thepriceofliberty.org/04/01/27/gaddy.htm

The Constitution may have been nothing more than a political expedient arming a privileged group with the license to enslave. Certainly and without question an individual member of the group called “people” being enslaved by a whiskey tax, invading army of tax collectors, or any other form of slavery, has a right to think so.

The Constitution was, in fact, a deal. The “Deal” included something known as the “dirty compromise”. Some of the dealers received a promise from the other dealers; “For the next twenty years, Congress was forbidden from abolishing the African slave trade or imposing a tax of over $10 on an imported slave. In addition, the fugitive slave clause was allowed to pass without debate or a recorded vote.” (Shays’s Rebellion, Leonard L. Richards)

So what was slavery being traded for in this great deal?

David White July 12, 2005 at 4:28 pm

Joe Kelley writes: “The Constitution may have been nothing more than a political expedient arming a privileged group with the license to enslave.”

Or as historian Charles Beard put it, a document that was “written in the furtive atmosphere of a coup d’état during secret deliberations of a convention called merely to regulate commerce, was received with hostility by the populace, which forced the precipitate addition of the first ten amendments. The document provided for a government of ostensible checks and balances (but really, as a wit has said, of all checks and no balances), and at the same time guaranteed itself the utmost freedom, unchecked and unbalanced, to propertied interests.”

Did someone say Corporate State?

Dwight Johnson July 13, 2005 at 1:41 pm

My good friend and neighbor, Marty Babitz, wrote an excellent book about this subject a couple of years ago. Marty is a good member of the Constitution Party, but I still have hopes of healing him of his statism. The book is called “The Illusion of Freedom: How to Restore the True Constitution and Reclaim Liberty Now”.

Dwight Johnson July 13, 2005 at 2:33 pm

I am not ready to look unkindly on the framers of the US Constitution. I will not judge them by current standards. If you read books like John Taylor’s “New Views of the Constitution of the United States” (1823), you feel that they were trying to do good. They did construct a document that attempts to limit government. Only by hindsight can we say that the attempt was futile. What they did was an amazing step forward in human history, viewed from the perspective of where things were in their time. Out duty is not to criticize the people of the past, but to take things to the next level now. Nullification could still be a powerful tool, if the state legislatures could be convinced to use it. I always marvel at their timidity.

Stephan Kinsella July 13, 2005 at 2:41 pm

How do you know it was a step forward? Maybe it was a step backward.

Joe Kelley July 13, 2005 at 2:52 pm

Dwight,

Rule of law may yet find its way into concrete form. If for example on some future date our species were able to adopt a principle common to all human beings and this principle became commonly understood through a common language on a global scale, if this principle were able to unite human beings toward a common goal against all forces aligned against it, then such a principle could be recorded for all time, subject to no foreseeable revision and yet adaptable to unforeseen conditions, then we, the people, would have liberty.

Is liberty this principle?

My perspective includes the possibility that liberty can be so recorded in digital form to stand in place of the desired goal of liberty if we so desire it to be realized.

Imagine an encrypted computer program welcome to all human beings, affordable, and linked in network to all other human beings allowing each human being to contribute toward a common pecuniary account payable on demand toward a mutually agreed upon expenditure where the total account is held in escrow subject to withdrawal based upon encrypted information common to all. In other words the account and all transactions associated with the account are enforced by a unanimously agreed upon code negotiated in advance and subject to change only upon unanimous negotiated agreement.

Said account is completely welcome and voluntary.

Example:

I hold my personal device and join the association skeptically but willing to give it a try.

I vote or contribute one unit of value. The association determines the value to be x. My device records on dollar of value toward the total account. Someone in China may record one vote at 8.2764 Yuan.

My vote is inspired by a proposition to finance the transportation and relocation of an orphan from Zimbabwe to a petitioning family in New Zealand. Information concerning the orphan and the family are posted on the proposition web site.

If the unanimous votes tally the required funds the account is coded to accept the transfer of funds. If the votes do not tally, in a specific time frame, the funds are coded to return to the member’s accounts.

All costs associated with the transfer are required, in advance, to be submitted to the common encrypted program held at each member’s terminal link to the network.

Meanwhile we are supposed to trust those in power. I don’t.

Dwight Johnson July 13, 2005 at 3:44 pm

Stephan: Okay, so they were really all mean bastards who just had it in for everyone. My point is, it really doesn’t matter. What matters is what we do with what we’ve got. The problem with your article is that it doesn’t go back far enough: how about Adam and Eve. It’s the human condition. Does us in every time.

Joe Kelly: huh?

Stephan Kinsella July 13, 2005 at 4:09 pm

Dwight, I neither stated, implied, nor believe what you say I do–that “they were all readlly mean bastards who had it in for everyone”. I only said maybe the American revolution was a mistake–a move backwards, not forwards.

Joe Kelley July 13, 2005 at 4:16 pm

Stephan Kinsella,

Since the British happened to be shooting people I’d say the revolution may have been a move to the side.

Dwight,

Please excuse my wandering imagination.

Wild Pegasus July 13, 2005 at 4:23 pm

There are two problems.

1. The first problem is that states rights now means segregation.

2. A lot of people who do talk about states rights also imply that slavery and Jim Crow were not as bad as everyone makes them out to be. And moreover they deserved what they got.

Putting it more bluntly, states righters sound like Holocaust deniers to most people. Holocaust deniers seem to simultaneously argue both that there was no Holocaust, and that the Jews got everything they deserved. States rights advocates come off the same way about segregation.

- Josh

tz July 13, 2005 at 4:47 pm

There may have been a problem in that the constitution worked too well at the beginning.

George Washington was the problem in that he wasn’t a petty tyrant, and even the Legislative branches were behaving nicely and the Courts acted too nobly.

So instead of thinking of government as a George III with an overtaxing parliment, they thought of it as an honest attempt to conduct federal affairs.

During Adams, the Alien and Sedition act was a good try, and Jefferson’s Embargo was positive genius, but was killed too quickly.

Jefferson’s problem is that he wasn’t the tyrant willing to be the person the patriots would shed their and his blood for to insure liberty would prosper. So the tare of government was too long mistaken for the wheat of freedom.

If Jefferson or Madison did what Lincoln eventually did, they would probably have been lynched, or at least tarred and feathered, and everyone for another generation would have been suspicious of the Federal government.

On another blog, someone commented (and I tend to agree):

The first Bush made me long for Reagan.
Clinton made me long for Bush.
Bush XLIII made me long for George III.

Between Clinton and Bush, they were/are doing a very good job at removing any thought of good coming from government. If dissolution or secession wouldn’t pass in most states today, just give it until 2008. But like most addictions, the withdrawl symptoms are going to be severe.

And it goes back beyond Adam and Eve – it was all the Serpent’s fault.

And Joe – such digital money systems already exist (I even wrote one as a demo – I do crypto!), so could be implemented easily, though I think there is a software patent that doesn’t expire until next year. You can google on “blind signatures” and or “digital coins”.

Dwight Johnson July 13, 2005 at 4:48 pm

Stephan: No, of course you didn’t say that. I was exaggerating to make a point. So let’s put it in these terms: you say the US Constitution was a step backward. But the fact is, they brought up the idea of limited government, of subsidiarity among layers of government, of federalism. They describe a form of government where the states and people had rights reserved to them. Certainly we would be better off than we are now if we had managed to retain the whole concept of federalism, if the states had managed to grasp the idea of nullification, and use it on a regular basis. It could be argued that we still would be worse off than if we had an absolute monarch ruling us. (I wouldn’t.) For these reasons I say the Constitution was a step forward. But, again, in the final analysis it doesn’t matter at all. What matters is how we get from where we are to where we want to be: without any oppressive government at all. Would you agree?

Joe Kelley: Sorry for misspelling your name. And sorry for being so abrupt. Your wanderings were actually interesting. I just didn’t get what they had to do with the current topic (nullification).

Josh: Yes, “states rights” is a problematic term. Perhaps the whole idea of state nullification is a dead issue. Or is it a step toward “people nullification”, where the people say no. After all, Amendment X reads in full: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or [drum roll please] to the people.” Seems like the people themselves have the right to nullify the powers of the federal government, per the Constitution. I firmly believe that this right is ours whether the Constitution says so or not. The only question that remains then is, how do we exercise that right?

Joe Kelley July 13, 2005 at 5:38 pm

Dwight,

No problem on the misspelling, in fact, it is a delight to see someone recognize the error.

I wrote something that imagined a method by which individuals could nullify government intervention.

As tz points out: Digital Money is a reality.

How does digital money relate to nullification?

If tomorrow morning everyone in America decided to put their money in a Swiss bank, assuming the Swiss could handle the increase in business, then our Federal government would be effectively nullified.

What is government but the means by which people collect and distribute capital?

How can Uncle Sam tax an offshore account? They would have to find a way but meanwhile the door would be open.

My imagination understands such a drastic change in commerce would be unwise.

The more gradual method of creating a means by which people could collect and distribute their own capital as they see fit was presented in my imagined account.

Perhaps someone else would rather vote with their own pocket to finance the war on drugs, the enforcement of a seatbelt law, Martha’s stay in prison, or the local rehab center.

Is there a better way to nullify robbery than to hide your cash?

Larry N. Martin July 14, 2005 at 10:25 am

I think what Stephan was implying was that it was a mistake to re-institute government, that government was the problem, regardless of how that government is organized or structured. The Founding Fathers were “too nice” because they meant well, and didn’t really push the system to its limits to test its weaknesses. I could be wrong, though.
One point about state’s rights is not that slavery wasn’t really evil, but that slavery would have withered away through economic pressure and incentives, without a bloody civil war and everything that went with that.

Joe Kelley July 14, 2005 at 11:11 am

“How do we?” exercise any right remains and always will remain a moment to moment process of negotiation. As soon a negotiation breaks down then the only remaining ‘right’ is to agree to disagree and the loss of all the benefits of cooperation that go with the exercise of that right.

This brings up a very significant point concerning rights. The people who have the common good sense to be rightful constitute what is known as civilized society. Society is governed, if it is governed at all, by individual negotiations made, on a day to day basis, between the practicing members of civilized society. The only rule book these people need are the rules that they voluntarily agree upon. The rules that civilized people voluntarily reject are just so much wasted paper. The time and energy consumed to arrive at disagreement is, at least, knowledge of what does not constitute civilized agreement. A stack of disagreeable documents can get fairly large, perhaps almost as large as our current U.S. Code; perhaps not quite that large. I don’t think civilized human beings are libel to waste so much paper.

The significant point concerning rights has to do with criminals. Uncivilized people, based upon their deeds, care not about rights; at all. Government, as a term commonly understood in 1776, was an institution designed to address criminals.

“And as a man who is attached to a prostitute is unfitted to choose or judge of a wife, so any prepossession in favour of a rotten constitution of government will disable us from discerning a good one.” (Thomas Paine)

Government is not the problem so much as who constitutes it and why?

Stephan Kinsella July 14, 2005 at 12:56 pm

Joe–good points. I rarely see these made. But they echo my own views re what it means to be “civilized”–see:

  • post re What It Means to be an Anarcho-Capitalist (“The criminal, gangster, socialist, welfare-statist, and even minarchist all share this: they are willing to condone naked aggression, for some reason. The details vary, but the result is the same – innocent lives are trampled by physical assault. Some have the stomach for this; others are more civilized – libertarian, one might say – and prefer peace over violent struggle.”)
  • A Libertarian Theory of Punishment and Rights (“Civilized people are … concerned about justifying punishment. They want to punish, but they also want to know that such punishment is justified. They want to be able to punish legitimately–hence the interest in punishment theories.”)
  • Defending Argumentation Ethics (“because argumentation/discourse is cooperative, civilized, peaceful activity, and because ‘justifying means justifying without having to rely on coercion’ (TSC, p. 133), participants in discourse necessarily value being able to use scarce resources in a conflict-free way. One adopting a civilized, peaceful stance and trying to justify a norm cannot coherently advocate non-peaceful norms. In fact, the very attempt to justify a resource allocation norm is an attempt to settle conflicts with regard to the use of that resource. Thus, a participant in discourse could never justify the proposition that there is no value to being able to use resources, or that conflict should not be avoided, or that cooperation and peacefulness are bad things. Valuing the avoidance of conflicts also presupposes the value of attempting to find rules that make conflict avoidance possible. I.e., property rules.”)
  • posts in Libertarian Aggression thread (“The point I am trying to make, seriously, is this. I do believe you and Richert et al. are acting on a more or less civilized impulse. You, like most primarily-civilized men do oppose violence etc. … I just think you, like others, are not consistent in it. I am trying to direct your attention to your civilized core. … What I find interesting is you and Richert seem to think I have some burden of proof for adopting the stance of a civilized, peaceful man. Would you confront a man with manners, for example, to demand that he justify having manners? How about a man helping the needy, or acting out of other eleemosynary impulses? Would you demand that he “justify” these actions?

    Very sneaky, first, using the fuzzy-wuzzy, imprecise, euphemistic phrase “social collective rights in relation to the individual” when what you really mean is “a group of people called the state are justified in violently trampling the bodies and property of certain individuals in society”; and second, trying to make it look like it’s already established that there “are” collective rights that I’m trying to “deny”. No; I simply oppose taking, using, or invading the borders of, the bodies or property of my friendly neighbors; and I favor peaceful interaction and civilization. Call me crazy. And I have the perceptiveness (not much is required) to recognize that at least modern states without doubt systematically and necessarily engage in significant, continuing, and pervasive actions of such violence. This is also obvious to anyone with eyes—anyone part of “society” and aware of what is going on around them.

    So it is obvious for anyone who opposes aggression and favors civilized life that most modern laws are unjust. It is simply obvious. Now if you as a paleocon happen not to oppose aggression and favor civilized life—to the extent you are simply okay with riding roughshod over your peaceful neighbors’ lives and property and family, to the extent you think it’s fine for the mafia known as the state to tax and regulate and attack individuals, i.e. to use force against them when they have doing nothing wrong, well, you won’t be bothered by the modern laws. Of course, socialists are not bothered by widespread public crime/aggression, precisely because the are socialists; and criminals are not bothered by the fact that their crimes are unjustified and uncivilized, just because they are criminals. So what? What is the relevance of the existence of anti-social elements? It does not prove that the civilized types who prefer peace and prosperity are wrong; it simply means that tragedy and evil are possible.

    In any event: uttering some mealy-mouthed bromide about “social collective rights in relation to the individual” is just a way of trying to hide the naked use of force against innocents that you are calling for. Why not admit your views, make them coherent and explicit, and defend them? “I believe in social collective rights in relation to the individual, i.e. I believe that a group of people known as the state are justified if they grab an innocent man and throw him in jail if he refuses to turn over half of his annual crop output to the group.” Why not say this? And then show why you are right? It can only be because, like a criminal, you simply don’t care about justifying all acts of aggression; which is fine, but why do you think, that just because you are not offended, in principle, by aggression, that those of us who oppose it are necessarily wrong? At least a burglar has the decency not to think I am wrong in trying to hold onto my things; he simply sneaks in and takes them, he cares not about right or wrong, but he does not add insult to injury by trying to lecture me that he is entitled to take my stuff. (This is similar to what Spooner said about the Highwayman versus the state.)

    … Either you agree with us that aggression is unjustified, or you do not. If you do, then don’t demand of me an explanation for why you believe something. If you do not, then why are you any different, to me, than a criminal who also refuses to recognize my rights? If you have no problem interacting violently with others, if you don’t have a preference for peaceful, civilized cooperation, then, (1) why are you engaging in ostensibly civilized discourse, which inherently grants others’ rights; and (2) if you really, really are not opposed to using violence to get your way, then why are you different than a criminal, and why should a civilized person bother to discourse with you as if you are civilized? I mean this question quite literally, not sarcastically, personally, or rhetorically.”)

Matthew January 7, 2010 at 3:21 pm

Hi. I certainly agree that States should be able to nullify expressly unconstitutional laws but what would stop the States from passing unconstitutional laws themselves? What would prevent them from establishing a religion? Or mandated gun control?

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