TAC has a review by Sale that champions nullification and (perhaps) secession.

Nullification acts have been introduced in state legislatures all across the country, particularly in the last few months: no fewer than 10 states took up proposals in the last week of February. According to one estimate at the Tenth Amendment Center, which tracks such things, there are more than 70 proposed bills to nullify federal laws and practices now in state legislatures, sometimes consciously labeled nullification, sometimes not.

For example, 12 states have introduced proposals for state marijuana laws in defiance of federal regulations under the Controlled Substances Act of 1970, joining the 15 states that have already passed various decriminalization provisions, including most recently Washington and Colorado. (Interestingly, they are not confined to blue or red states but stretch across the land: Alaska, Washington, California, Nevada, Arizona, New Mexico, Montana, Michigan, Arkansas, Vermont, Rhode Island, and Maine.)

State laws against National Defense Authorization Act provisions that allow the president to detain indefinitely anyone, citizen or not, whom he suspects of terrorist ties, have been introduced in almost half the states, again from coast to coast, and passed in Arizona, Utah, Maine, and recently Virginia—the state that first used nullification, in 1798, against the Alien and Sedition Acts.

These state-centered attempts to limit the federal government represent one hopeful sign in a long struggle. Interestingly, there are folks on both the left and the right supporting these measures. Can they succeed? Will they?

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Mark T. Mitchell
Mark T. Mitchell teaches political theory at Patrick Henry College in Purcellville, VA. He is the author Michael Polanyi: The Art of Knowing and The Politics of Gratitude: Scale, Place, and Community in a Global Age (Potomac Books, 2012). He is co-editor of another book titled, The Humane Vision of Wendell Berry. Currently he is writing a book on private property. In 2008-9, while on sabbatical at Princeton University, he and Jeremy Beer hatched a plan to start a website dedicated to political decentralism, economic localism, and cultural regionalism. A group of like-minded people quickly formed around these ideas, and in March 2009, FPR was launched. Although he was raised in Montana and still occasionally longs for the west, he lives in Virginia with his wife, three sons and one daughter where they are in the process of turning a few acres into a small farm. See books written by Mark Mitchell.

11 COMMENTS

  1. I admire Kirkpatrick Sale: “Human Scale” is an invaluable book. I admire localism, and I admire the impulse to cut Leviathan down to size. But if Alabama and Kansas can nullify federal laws, then why can’t the People’s Republic of Missoula, Montana nullify state laws, and why can’t I personally nullify any law I don’t happen to like? Subsidiarity all the way down, says I. I thought we’d already established that the Utah sheriffs are the ultimate arbiter of what’s constitutional and what’s not; why do we need nullification?

  2. And finally, I should be able to nullify any unconstitutional the sheriff is trying to enforce, tell him to holster his gun and get off my property or out of my face on the public sidewalk, and he should meekly wish me a good day and go about his business.

    There is a place in our federal framework for states to develop laws and programs counter to the perceived wisdom dominant at the federal level. Most states had their own laws against marijuana, that operated in tandem with the federal laws. Now, many don’t. This sets up a creative tension. States can’t effectively STOP a federal law being enforced, although federal authorities can wisely refrain from barging into a situation where they have traditionally let the state enforcement take first crack (no pun intended) anyway.

    Arguably, drug laws should work more like raw milk limitation. The stuff is potentially dangerous, and can’t be shipped across state lines without bringing on federal action, but, states can permit it on some scale within strictly intrastate commerce, if the state’s voters desire to do so.

    Also, if enough state majorities pile up in favor of relaxed laws, eventually the congress reps and senators are also going to reflect this trend. Let the tension play out, but lets not delude ourselves that straight nullification is going to get very far.

  3. In the American tradition, an extension of the Anglo-Saxon/British tradition, each of the American colonial republics, thirteen of them, acquired full independence and hence complete political sovereignty upon the successful completion of the American War for Independence. Individuals and divisions within those republics had no claim on political sovereignty, which is not at all the same as subsidiarity. Subsidiarity as a characteristic of the created order functions quite apart from any notion of sovereignty. In fact, it is a counterbalance to sovereignty, which a given political society possesses it at all, it possesses it as stewardship graced by God who is alone sovereign.

    One should not confuse the organs of government- legislative, executive, judicial, bureaucratic – of a given social order which is a republic, in the American context a state like Virginia, with the state or republic itself; for a republic is a social order with the rule of law, i.e. commonly held traditions, customs and habits on which all statutes, executive orders and decrees must be based lest they be contrary to those traditions, customs and habits and become acts of tyranny thereagainst; it is a social order with a demographic and territorial scale which is conducive to the citizens and residents thereof holding common traditions, customs and habits which define the common good and which constitute the rule of law; and it is a place of self government, not, however necessarily a democracy. (One could argue, given Aristotle’s warning, that democracy is the seed of tyranny.)

    Thus, sovereign states so defined can secede from unions which they willfully joined. Individuals in those states cannot seceded, although they can, unless the state is totalitarian, drop out or move out. Jurisdictions thereof cannot secede without the leave of the people thereof or they become jurisdictions in rebellion.

    This was precisely Lincoln’s falsely held argument, namely that states, the republics who won their full independence and created through the Constitution the general government, were mere subdivisions of the general government and could not therefore secede. Under Lincoln’s faulty historical understanding, the creature, i.e. the general government created by the states who were the principals as their agent, became master over its creator.

    Unlike sovereignty, subsidiarity is a matter of unique agency, an understanding that flows out of our understanding of the Trinity, with each person thereof having a unique agency in a oneness of sovereignty. It is reflected throughout the created order. Subsidiarity is indeed rooted in a type freedom, but not the freedom to pursue one’s whims, desires, compulsions, lusts or raw “free will” but the freedom from those very things so that one can pursue one’s duty, obligations and responsibilities to God, to family, to Church, to local community and to the republic as defined supra.

    It is the tyrant, be that an individual, a faction or a government which attempts to usurp my agency in subsidiarity. As the head of a household, it is my duty to nourish and defend my household. Individuals or political entities which attempt to free me from that duty are enemies of subsidiarity. They are usurping my agency in the created order.

    The fertile ground of tyranny is precisely the social setting which embraces Rousseau’s notion of the autonomous, would-be Promethean, would-be sovereign individual who would secede from any traditions, customs and habits which might impede his freedom to pursue his whims, his desires, his compulsions and his free will; it is the social setting which embraces Locke’s liberal notions of “rights” such as life, liberty and property (happiness); and it is the social order which allows itself to be defined and governed by the Hobbesian state which is an abstract corporation with a monopoly on coercion, with the ability to define the limits of its own power, and which is driven by a powerful will, be it that of one, of an oligarchy or of a democratic majority. In the end, the radical, would-be Promethean individuals, who actually end up being estranged, alienated and shriveled selves and the Hobbesian state are on the same side. They leverage the Hobbesian state animated by shifting factions and entrenched bureaucracies to overthrow the created order which places limits on them, to destroy institutions such as Church, local communities and republics which place limits on them, and to deconstruct God, traditions, customs and habits which place limits on them. In the end, they stand a naked slaves of the collective which they have helped the Hobbesian state create.

    In an order based on subsidiarity, domains of agency are sacred; in an order based on the alleged autonomous individual, his rights and the all-powerful state necessary to keep these millions of gods from destroying one another, there are no domains of agency. The Hobbesian state will not tolerate them.

  4. Peters is correct that Rousseauean anarchy is the fountain of tyranny, because if there is no law, then the most powerful individual or coterie of individuals can do as they please, not only with themselves and their own, but with everyone else. Mutually respected individual rights can only exist in any practical sense within a framework of laws and culture which restrain those, individually as well as governmentally, who would infringe such rights.

    Being a lower-case unitarian who finds some merit in subsidiarity, I decline to accept Peters’s self-serving notion that subsidiarity necessarily flows from the concept that God is three in one, as Certs is two in one. But that’s a rather irrelevant side point, a matter of preference to be debated among the admittedly ignorant. We’ll all find out the real answer when we get to the other side, and laugh at our doctrinal presumptions in the present life.

    The argument that the federal government was purely an agent of the various states is a plausible one, but flawed. It is certainly true that each state was sovereign at the conclusion of the War of Independence. It is also true that no federal government could have come into existence without the consent of each state entering into the union. But two facts undermine Peters’s claim to the continuing viability of secession.

    First, the constitution ratified by each state created a federal government that subordinated each state to the whole in significant and highly relevant respects. The federal government was designed to be acted upon by, and to act upon, the people as a whole, not merely to act through the agency of the states. No state’s subsequent withdrawal could breach that direct relationship, once established. Further, each state gave up significant powers, in ratified clauses which stated “No state shall…” Certain powers were delegated exclusively to the federal government.

    Second, each state, and the inhabitants thereof, for several decades after ratification, relied upon the existence of a union in their private dealings and their dealings with each other. For a state that had enjoyed the benefits thereof, sometimes at the expense of others who might have followed different policies to their own benefit and the detriment of others, if not bound by the union, to then take all their marbles and go home, would be a breach of the original compact between the states, and between the federal government and the people. The term promissory estoppel illuminates the weakness of the argument that secession remained a viable option. Everyone had relied on the promise that we were now all in a union together.

    It did not have to wait for Lincoln to see this. Andrew Jackson asserted “The United States is a government, not a league,” and threatened to hang John C. Calhoun from the highest tree in South Carolina if he attempted to engineer secession. That was important enough to motivate my great-great-grandfather, a Jacksonian Democrat both before and after the Civil War, to volunteer for the 11th Tennessee Cavalry — United States Army.

  5. Mr. Jenkins is correct. Mr. Peter’s notion that a state has some metaphysically thick properties that a federal government does not is question-begging, and not supported by the founders themselves.

    Mr. Hamilton, take it away: “As states are a collection of individual men which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter.”

  6. Mr. Jenkins and Mr. Haas,

    Citing one of the so-called founders, Mr. Hamilton who lost most of what he had plotted for in the constitutional convention and then who systematically misrepresented his intentions to the ratifying conventions, and Mr. Jackson, who had very authoritarian tendencies, does little to negate the overwhelming historical evidence which support state sovereignty, nullification and secession.

  7. Hamilton was hardly a failure in shaping the new nation–especially as far as his reports during the Washington years are concerned. In particular, he advised the establishment of a system of marine hospitals which were mandated by “An Act for the Relief of Sick and Disabled Seamen” of 1798, which was also supported by the supposedly small government Thomas Jefferson. This government run health care system constituted a bi-partisan (Federalist and Democratical-Republican) foundation for future programs of somewhat wider scope.

  8. Mr. Peters, I admire your argument, inasmuch as you develop it coherently, and make a plausible case for your chosen set of principles. It has a certain internal integrity, and is not to be taken or challenged lightly — albeit I believe you are factually incorrect on some points, and point the way many good intentions lead.

    Your repartee does not do your argument justice. I don’t admire Hamilton, but his ill-conceived intentions hardly define the meaning of the Constitution. Ad hominem dismissal of Hamilton and Jackson do not rise to the level of substantive argument. Its not like my critique rested on Jackson for authority. I offered a brief citation at the end to question your piling the nationalist argument with its alleged fallacies on Lincoln. Perhaps you could try something more convincing.

  9. Mr. Peters, the idea that any state can freely leave a union which they voluntarily joined at the inception of the union may or may not be valid, but those states which were only subsequently formed or annexed into the Union with the concurrence of the Union are creatures of the Union and are no more eligible to walk away than is a county within any given state. Subsidiarity, while in many instances a pragmatic approach to governance, must stand aside when individual states or their political subdivisions do not legislate nor enforce their laws consistently among all their citizens, nor in contravention of the Constitution of the United States of America as amended. I would submit that the reason the Federal government has grown so large is in direct proportion to the inability or unwillingness of states and their lesser jurisdictions to apply laws equally to all citizens in a consistent manner in keeping with Constitution and Bill of Rights. Thoughts?

    • The actually process of admitting states gainsays your argument about those states subsequently formed, for they are not creatures of the Union. The Union is/was not the general government of the United States; the general government was itself a creature of the Union through the instrument of the Constitution. States which were admitted to the Union, i.e. to the fellowship of states, i.e. sovereign republics, were created by those Americans to lived in the territory which became a state. The Union, i.e. the states already in the Union, could indeed reject the petition of a sovereign people in a territory to enter the Union just as a law corporation can reject a petitioning partner, but the Union does not create the State. For instance, the people of Louisiana in convention assembled acceded to the Union of states and was accepted. She entered as a full partner, not as a junior partner. When she seceded in January 2013, she in few words in the ordinance of secession simply nullified her ordinance of accession. This is also born out in how Congress, which is not a parliament, but a place where equal sovereigns gather, i.e. the states, oversaw its territories. When Virginia give up her territories which became known as the Northwest Territories and later the Midwest or the Old Midwest, slavery was prohibited by the Union, i.e. the States, primarily, although certainly not exclusively, because men like John Randolph and Thomas Jefferson so the territories as places where freed blacks who, gradually over time emancipated, could go and build a farming life. In fact, Randolph had purchased land in what would become Ohio for that purpose for his slaves to be freed upon his death. (What happened to those freed slaves in Ohio is another story.) However, and this is a very big However, Congress, i.e. the states assembled as sovereign entities, had absolutely no authority to prohibit slavery in a state which would emerge within those territories in which slavery had been prohibited. Also, Congress had no authority to make a people on a given territory become a state.

      The Constitution of the United States creates the general government to serve the states and the respective people of the individual states sharing within a given state common traditions, customs and habits which are uniquely reflected in the constitution and the statutory laws of a state. The prohibitions in the Constitution as adopted and in the Bill of Rights are prohibitions against the general government; they are not prohibitions against a state, nor are in those documents any “rights” given to citizens.

      What you are outlining is what was not then but what was to come, namely the infusion of Jacobin notions of autonomous individuals (Rousseau) and abstract rights (Locke) which were in various forms certainly in the air in the 1780’s but which did not bear their foul fruit until the advent of the Republican Party in the 1850’s.

      Postbellum, we indeed have as a result of an unconstitutional, immoral and unnecessary war made as a total war, the advent of a consolidated and centralized Hobbesian state which is itself an abstract corporation, with a monopoly on coercion and with the force of a will, be it that of a dictator or of a democratic majority, allied with the autonomous individuals allegedly protecting their abstract rights from the intrusion of God, of family, of Church and local and state jurisdictions. Now, if one believes that victory in an immoral, unconstitutional and unnecessary war which killed thousands of combatants and likely over one million civilians, the latter mostly in the South, gives one the authority to turn the Constitution on its head through coerced and unconstitutionally ratified instruments such as the 14th amendment, then one has reduced oneself to the notion that might makes right, a game which both of us can play.

      In antebellum America, rights, such as they existed were protected by the individual states through their constitutions, their laws and their taboos. Protecting rights was not a power granted to the general government, for that would have been letting the fox guard the hen house. The Bill of Rights, objectively read, is a list of prohibitions against the general government.

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