Tuesday, August 3, 2010

Nullification and Jefferson's Kentucky Resolutions

1. Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

From the
Kentucky Resolutions of 1798, secretly drafted by Thomas Jefferson in response to the Alien and Sedition Acts.

Particulary after my last post, I found Derek Sheriff's analysis of "nullification" as a political means to oppose the federal government's usurpation of individual rights to be very interesting. Such an approach falls more broadly within the so-called "Tenth Amendment Movement" which seeks to resist "federal tyranny" based on the idea that the federal government's power is strictly limited to the enumerated powers, and that all other powers reside within the states. He points out that in response to the passage of the egregious Alien and Sedition Acts, then Vice-President Jefferson secretly drafted the Kentucky Resolutions of 1798 "to convince state legislators that nullification was the most appropriate form of immediate resistance." Jefferson and James Madison ended up drafting what are now known as the Kentucky and Virginia Resolutions:
They argued that the Constitution was a "compact" or agreement among the states. Therefore, the federal government had no right to exercise powers not specifically delegated to it and that if the federal government assumed such powers, acts under them would be void. So, states could decide the constitutionality of laws passed by Congress.
Sheriff explains the basis of the nullification approach:

This scenario has nothing to do with overturning the constitutional order. In fact, it is precisely how the constitutional order was supposed to work in the first place. The use of nullification by states to neutralize acts of federal usurpation is both constitutional and revolutionary at the core. William J. Watkins explains it like this in his book, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy:

“The Kentucky and Virginia Resolutions, written over two decades after the colonies declared independence from Great Britain, represent a reaffirmation of the spirit of 1776. At the core, the Resolutions are intrepid statements in favor of self-government and limited central authority. A product of the political and constitutional battlegrounds of the 1790s, the resolutions serve to link the federal union created by the Constitution with the aspirations of the patriots of the American Revolution. Indeed the touch of the author of the Declaration of Independence is unmistakable when one reads the Kentucky Resolutions of 1798."

Unlike the reformist strategy which seeks to mobilize power within Washington, DC in order to reform and redirect that power, nullification seeks to diminish and redistribute that power through relentless, decentralized, but ideally coordinated, acts of state level, constitutional resistance.

While it is vital to point out that fundamentally we are fighting for individual rights whether at the federal or state level and that we should not replace a federal tyranny with 50 state ones, I think as a tactic, the concept of nullification does have potential. This is because, as a practical matter, I think we have a better chance of establishing and protecting individual rights when 50 different states compete rather than relying on changing one disconnected federal leviathan. As Sheriff says:
Because government is such a dangerous concentration of power, American revolutionaries recognized the absolute necessity of limiting government power and dividing it into as many competing jurisdictions as possible. The hope was that under such an arrangement, the federal government would be held in check and people would have the option to move freely between more powerful, but competing states. Competition would keep their multiple jurisdictions from becoming intolerably oppressive.
For activists, I think this approach, and the history behind it, is definitely worth considering.

8 comments:

Shane Atwell said...

interesting. think i'll read that book.

Anonymous said...

Doug,

Have you had a chance to read Tom Woods' new book, "Nullification: How to Resist Federal Tyranny in the 21st Century"?

Doug Reich said...

I have not read it, but the article to which I linked discusses and references that book.

Steve D said...

If nullification ever becomes a significant threat to the government they will figure out a way to get rid of it.

"This is because, as a practical matter, I think we have a better chance of establishing and protecting individual rights when 50 different states compete rather than relying on changing one disconnected federal leviathan."

So long as their premise is unchallenged all 50 states will eventually move politically in the same direction and each compete to become the most statist (see Europe for example). The most this tactic could do is buy some time. It's probably too late for that anyway.

I recommend focusing on teaching people the correct epistemology. Once people are thinking correctly they will come around.

Given the limited number of Objectivists I suppose if they all moved to the same state for increases focus this might have a better chance of creating a small free country - assuming it isn't overwhelmed immediately by its neighbors.

Doug Reich said...

Steve,

I think these political tactics are certainly limited and the ultimate solution is changing the ideas in the culture. With that said, it is certainly true that there is a growing divide between certain states. Of course, compare California to Texas or Massachusetts to Oklahoma. In the short run, if a state were to refuse to enforce certain federal regulations, it would be a powerful force in the right direction. Already, Missouri passed a law denying the forced insurance mandate.

I only point this out because these checks and balances have some interesting historical precedent and should be seen as another possible check on federal power. With the rate at which the federal govt is going, we may need some tactics like this to slow it down.

Steve D said...

“the ultimate solution is changing the ideas in the culture”

I agree and the way to change the ideas is to change the method by which people generate their ideas.

Would you rather live in a declining free state rife with altruism and incoherent thinking but still relatively politically free (for the time being) or in a strongly socialist state in which the prevailing philosophy has turned around and is individualist and Objectivist and will within a generation or two also be politically free? In both cases the prevailing politics is going up against ethics, a battle it can not win.

Personally if I could fix one thing about people it would be their thinking - it may or may not be completely sufficient to fix the politics but it is 1) a necessary condition and 2) make a much better world regardless of politics.

I’m not arguing against checks and balances but one thing I’ve noticed is how completely bizarre local governments can be - sometimes I scarcely believe these people are adult humans. (or that they somehow manage to stay alive)

I understand the point that hopefully the various levels of government will be too busy fighting each other to vote away our rights. Its given us a little more time. I hope we use it wisely.

“Already, Missouri passed a law denying the forced insurance mandate.”

I live in Missouri and so that’s good news. People voted for this with the explanation that they did not want Washington interfering with their health care. I agree. I also don’t want my next door neighbor interfering with my health care.

What makes me particularly optimistic about this is that there is probably no other place in the world other than Missouri where this would happen so quickly. It does say something about the character of the people and I would argue a very good place to spread the right ideas. That way we don’t end up with Missouri-Care.

Tenure said...

I'd like to echo the well reasoned comments made above, and to also add one of my own.

To echo: nullification is a good idea, for the reasons stated, but a good idea once granted that we have a legitimate, cultural foundation for government. It is not a tool for political or cultural change as such.

To add my own embellishments: I think the issue of 'sticking to those powers enumerated' is a bit of a.... misnomer? The States which are federated into a Union do not merely agree to the wording of those particular laws: rather they agree with the nature of them.
That is to say that when the Constitution did not strictly ban slavery, as a way to get all the States on board, the States which wished to keep slavery in existence were not doing so on the legitimate grounds granted by that (or any legitimate) Constitution. The federal government (supposing it was still a legitimate defender of the rights enumerated in the Constitution) therefore had every right to force those States involved in the Union to reject slavery, as being inconsistent with the full expression of the enumerated rights.

Essentially what I'm saying is that we have to clarify that 'powers' enumerated is not limited to 'expressing the wording of the Constitution' as it just is. Rather, we must be clear on what legitimate grounds that Constitution was founded, and thus work out from there which 'powers' are thus entailed.

Doug Reich said...

Tenure,

good points. Thanks!

Doug