WHEN HOUSE SPEAKER NANCY PELOSI was asked by a reporter in 2009 where in the Constitution she found the authority to impose a health insurance mandate on Americans, she laughed and replied, “Are you serious? Are you serious?” The reporter answered that indeed he was. The Speaker just shook her head, and then took another question.
Pelosi’s press spokesman clarified the Speaker’s non-answer by explaining that this was “not a serious question.”1
Senator Pat Leahy was asked the same thing—where in the Constitution is the federal government granted the authority to do this? His answer: “There’s no question there’s authority. Nobody questions that.”2 He had no idea, in other words.
Senator Mark Warner, in turn, came out with this gem of constitutional insight: “There is no place in the Constitution that talks about you ought to have the right to get a telephone, but we have made those choices as a country over the years.”3 Got that? So what if the Constitution says nothing about granting the federal government the power to force Americans to buy approved health insurance packages? The Constitution also says nothing about allowing American citizens to buy a telephone, eat at Taco Bell, or have children, and we do those things, don’t we?
The difference that managed to escape Senator Warner is that in a free society people do not require constitutional authority to act. Government does.
The controversy over health care reflects a much broader and deeper constitutional void in American life. Some fifteen years ago, a Supreme Court Justice asked the United States Solicitor General (the government’s lawyer for Supreme Court cases) if he could name an activity or program that, in his view, would fall outside the bounds of what the Constitution authorized the federal government to do. He could not.4
This contempt for constitutional limitations on the federal government is bipartisan and long-standing. Unsurprisingly, when the Constitution is thought of not as the strict limitation on government that its original supporters sold it as, but as something so compendiously broad as almost to defy limitation, government will continue to grow. Some federal activities have begun to alarm even those who have historically cheered government growth as a progressive force. Yet nothing has been able to stop it. Even Ronald Reagan, for all his charisma and rhetorical prowess, was able only to slow the growth of certain categories of federal spending.5 In 1994, the Republican Party won control of both houses of Congress in a historic off-year election victory. Government would at last be shrunk, politicians assured us.
Sure it would.
More and more Americans concerned about ongoing and apparently unstoppable government growth are beginning to wonder if some other strategy should be pursued, the exclusively electoral one having been such a failure. In the face of decades of broken promises and precious few victories against the seemingly inexorable federal advance, the pretty speeches of the plastic men are starting to ring a little hollow.
This is the spirit in which the Jeffersonian remedy of state interposition or nullification is once again being pursued. As we shall see in chapter 2, it was Thomas Jefferson, in his draft of the Kentucky Resolutions of 1798, who introduced the term “nullification” into American political discourse. And as we’ll see in chapter 4, Jefferson was merely building upon an existing line of political thought dating back to Virginia’s ratifying convention and even into the colonial period. Consequently, an idea that may strike us as radical today was well within the mainstream of Virginian political thought when Jefferson introduced it.
Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government.
The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow—regardless of elections, the separation of powers, and other much-touted limits on government power. A constitution is, after all, only a piece of paper. It cannot enforce itself. Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people. That is precisely what Jefferson warned William Branch Giles was already happening in 1825: “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”6 Much more important than the feeble restraint of “checks and balances” is the ability of the states to interpose to prevent the enforcement of unconstitutional laws. That is a real check on federal power.
It is not clear what the alternative to Jefferson’s remedy of nullification might be. Unconstitutional laws have indeed been passed, in very great abundance, so the question he poses about what to do in such a situation is not merely academic. Should people gather petitions, asking those who drafted the objectionable law to change their minds? Good luck with that. They could instead appeal to the courts. Although it would be nice if the courts were to grant us relief, what if they do not? The federal courts have, for all intents and purposes, ceased to police the federal government. We cannot be expected to believe that the matter is settled, and an odious law to be complied with, merely because a handful of politically well-connected lawyers whom we are urged to treat with superstitious awe have solemnly informed us that all is well.
It is not difficult to find support in history for the general principle that an unconstitutional law is void. Alexander Hamilton contended in Federalist #78 that “there is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
This principle should be beyond debate. The controversy arises when we consider how and by whom an unconstitutional law should be declared void (and thus not enforced). It was Hamilton’s view that the courts would put things right. But what if they didn’t? And since the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government. So in a dispute between the states and the federal government, the resolution is to come from…the federal government? Jefferson refused to accept that answer. Under that arrangement, the states would inexorably be eclipsed by the federal government. It was impossible for Jefferson to believe that the states would have agreed to a system that assured their unjust subordination.
Spencer Roane, a Virginia judge who would have been appointed Chief Justice of the United States by Thomas Jefferson had John Adams not chosen John Marshall in the waning hours of his presidency, noted that if the federal judiciary were to arbitrate such a dispute between itself and the states, it would be presiding over its own case, a clear absurdity:
It has, however, been supposed by some that…the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members…. The Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate…. They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.7
Joseph Desha, governor of Kentucky, identified the very same problem in 1825:
When the general government encroaches upon the rights of the State, is it a safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not? In fact, most of the encroachments made by the general government flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.
Desha concluded that it is “believed to be the right, as it may hereafter become the duty of the State governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience” to “unconstitutional mandates.”8
Once we accept the underlying premise that an unconstitutional law is ipso facto void, it is not a long way to Jefferson’s commonsense conclusion that someone ought to protect the people from the enforcement of such a law, and that the state governments, each one speaking only for itself, are the logical choice to do so.9
All over the country today, state legislators are introducing measures by which their states would refuse to enforce federal laws that violate the Constitution. Two dozen states nullified the REAL ID Act of 2005, legislation which aroused the opposition of both fiscal conservatives, who resented another unfunded federal mandate imposed on the states, and civil libertarians, who raised privacy concerns against the legislation’s proposed standardization and centralization of identification procedures. Resistance was so widespread that although the law is still on the books, the federal government has, in effect, given up trying to enforce it. This makes for an excellent example of how nullification can work—the states’ resistance to some federal action is perceived as being so fierce and determined that Washington backs off, deciding that a particular struggle isn’t worth pursuing. A new piece of legislation, the so-called PASS ID Act, is now under consideration at the federal level, but the states are likely to grant it a similar reception.
Another example of a state challenge to federal power is the Sheriffs First initiative, whereby, with a few exceptions, it would be a state crime for a federal law enforcement official to make an arrest or engage in a search or seizure without first receiving permission from the local sheriff.10 Locally elected sheriffs, who have some semblance of accountability to the people, might thereby be able to prevent some of the inevitable abuses that have accompanied the increasing centralization of law enforcement in the United States. Anyone concerned for the protection of civil liberties must find great appeal in this movement.
One of the most successful examples of modern-day nullification involves the medicinal use of marijuana, which is illegal under federal law. As of this printing, fourteen states are openly resisting the federal government’s policy.
California’s Angel Raich suffers from an astonishing range of afflictions, including fibromyalgia, seizures, nausea, and an inoperable brain tumor. Scoliosis, endometriosis, and temporomandibular joint dysfunction put her in constant pain. She loses a pound a day as a result of a mysterious wasting syndrome. Cannabis alone has granted her any relief worth speaking of, without burdening her with intolerable side effects, and has arrested her weight loss. Her physician testified in court that she would die without it.
California’s Compassionate Use Act of 1996, passed into law in the wake of a popular referendum in defiance of the federal prohibition, allowed her to have recourse to the one treatment that could help her. When a series of raids by federal agents in 2002 led to a wave of arrests, Angel Raich and fellow sufferer Diane Monson sought an injunction against further raids by the federal government. Although they lost in district court, a panel of the U.S. Circuit Court of Appeals for the Ninth Circuit came down in their favor and forbade federal agents from seizing the women’s marijuana. The Justice Department, in turn, appealed the case, which would go before the Supreme Court as Gonzales v. Raich (2005).
The Justice Department pointed to the Constitution’s commerce clause to justify the federal prohibition on the use of marijuana even for medical purposes.11 The presence of medical marijuana in one state, it was argued, could have spillover effects on other states. Even though the marijuana was grown in one state, was never transported out of that state, was never sold at all, and was immediately consumed in that state, the Justice Department wanted it to be treated as interstate commerce and therefore subject to federal regulation. It was the typical absurdity for which commerce-clause jurisprudence has become notorious. As usual, the Court’s liberals, Stephen Breyer and Ruth Bader Ginsburg, took the nationalist position against the states. It was the much-maligned conservative, Clarence Thomas, who composed the most withering critique of the Court’s decision and the inane jurisprudence that informed it. “One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States,” Thomas wrote.12 The Court ruled against Angel Raich, and declared that medical marijuana suppliers and users could be prosecuted even when the states had legislated to the contrary.
Had the Supreme Court been correct about the alleged spillover effects of medical marijuana from one state into another, we should expect some of those state governments to have filed amicus briefs in support of the federal government’s position. To the contrary, Alabama, Louisiana, and Mississippi, three southern states known for their conservatism, filed amicus briefs in support of Angel Raich. They opposed California’s policy on medical marijuana, they said, but they were much more strongly opposed to a federal government so oblivious to restraints on its power that it would actually disallow California’s policy.13
In 2007, Angel Raich renewed her litigation before the Ninth Circuit, with an even more grotesque result. The circuit court conceded the seriousness of her condition, and noted that if she did not have recourse to the liberties the California Compassionate Use Act made available to her she would be forced to endure “intolerable pain, including severe chronic pain in her face and jaw muscles due to temporomandibular joint dysfunction and bruxism, severe chronic pain and chronic burning from fibromyalgia that forces her to be flat on her back for days, excruciating pain from non-epileptic seizures, heavy bleeding and severely painful menstrual periods due to a uterine fibroid tumor, and acute weight loss resulting possibly in death due to a life-threatening wasting disorder.” The Ninth Circuit admitted Raich did “not appear to have any legal alternative to marijuana use.”14 But that was just too bad. “Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”15
Now consider: the federal government defied the states’ resistance efforts, launching a series of raids on medical marijuana patients and dispensaries. The Supreme Court ruled against the states. And yet the use of medical marijuana goes on as if none of this ever occurred. There are as many as one thousand functioning dispensaries in Los Angeles County alone, each of which operates in direct defiance of the federal will.16
Medical marijuana is not a cause that is losing momentum. If anything, its supporters are becoming more confrontational and identifying their cause more consistently as a constitutional struggle with the federal government. In socially conservative Kansas, the movement is proceeding apace. House Bill 2610 declares, “The legislature of the state of Kansas declares that this act is enacted pursuant to the police power of the state to protect the health of its citizens that is reserved to the state of Kansas and its people under the 10th amendment to the United States Constitution.”17 According to New York’s Assembly Bill A09016 and Senate Bill S4041B, “This legislation is an appropriate exercise of the state’s legislative power to protect the health of its people under article 17 of the state constitution and the tenth amendment of the United States Constitution.”18 The Tenth Amendment, discussed further in chapter 2, clarifies that the federal government possesses only the powers delegated to it in the Constitution, and guarantees the states the power to govern themselves in all other areas.
Nullification is being contemplated in many other areas of American life as well—and not just in health care (an issue to be discussed in chapter 5).
In early 2010, Wyoming state representative Allen Jaggi introduced House Bill 95, the Firearms Freedom Act. The Act seeks to rein in the federal government’s assumed power to regulate anything it chooses on the spurious grounds of “interstate commerce.” It declares that “specified firearms that are manufactured, sold, purchased, possessed and used exclusively within Wyoming shall be exempt from federal regulation, including registration requirements.” Thus, Wyoming guns with no interstate dimension cannot be regulated under any honest reading of the commerce clause.19 This statement of common sense doubtless sounds shocking and uppity to the modern ear, accustomed as it is to accepting federal usurpations as unchangeable facts of life. Tennessee, Montana, and South Dakota have enacted similar legislation into law. Nearly two dozen other states are considering doing the same. South Carolina’s legislature is considering a law (House Bill 4509) that would nullify federal gun registration requirements regardless of where the guns are manufactured. Proposed legislation in New Hampshire and Wyoming even includes penalties for federal agents attempting to enforce unconstitutional regulation. As the Framers of the Constitution intended, these matters properly belong to the states and the people, not the federal government.
An effort that bears more than a family resemblance to nullification, concerned as it is with the reserved powers of the states, is called Bring the Guard Home. It seeks to restore the traditional powers of the state governors over their own National Guard units.20 Bring the Guard Home argues that the National Guard, the successor to the militias of an earlier time, may be deployed by the president only for the constitutional purposes of repelling invasions or insurrections, or executing the law.21 Such a role for the National Guard is consistent with the popular portrayal of the citizen soldier who assists his own community and his own country.
The Bring the Guard Home movement boasts a diverse array of supporters, including liberals, conservatives, libertarians, military families, and active-duty servicemen. Proposed legislation to reassert traditional state authority over the Guard has twice received favorable coverage on WorldNetDaily.com, a popular conservative website.22 The libertarian Tenth Amendment Center has proposed legislation even more straightforward and powerful than what Bring the Guard Home itself has suggested. According to its model legislation,
The governor shall withhold or withdraw approval of the transfer of the National Guard to federal control in the absence of: a) A military invasion of the United States, or b) An insurrection, or c) A calling forth of the Guard by the federal government in a manner provided by Congress to execute the laws of the Union, provided that said laws were made in pursuance of the delegated powers in the Constitution of the United States, or d) A formal declaration of war from Congress.23
The Tenth Amendment Center became especially active on the issue in the wake of an executive order from Barack Obama in early 2010 that established a new Council of Governors that would review “such matters as involving the National Guard of the various states; homeland defense, civil support; synchronization and integration of state and federal military activities in the United States; and other matters of mutual interest pertaining to National Guard, homeland defense, and civil support activities.”24 In light of this vague mandate, supporters of the National Guard’s traditional role found it opportune to try to introduce into the various state legislatures clarifying measures regarding the proper role of, and authority over, the National Guard.
Objections have been raised against nullification, to be sure, and we shall address them, implicitly or explicitly, throughout this book. But one misplaced criticism ought to be answered right away: that nullification violates the Constitution’s supremacy clause, which says the Constitution and laws in pursuance thereof shall be the supreme law of the land.25 This argument merely begs the question. The supremacy clause says the Constitution and laws in pursuance thereof shall be the supreme law of the land. In other words, the Constitution and constitutional laws shall be the supreme law of the land. That’s precisely the issue: a nullifying state holds that the law in question is unconstitutional and not “in pursuance thereof.” The supremacy clause does not say unconstitutional laws shall be the supreme law of the land. William Harper, by turns judge, U.S. senator, and state representative, understood the matter correctly back in 1830 when he noted that “the clause declaring that the Constitution and the laws made in pursuance of it, shall be the supreme law, would, of itself, conclude nothing. The question would still recur—who shall judge whether the laws are made in pursuance of it.”26
This need not be a traditional left-right issue. Before the Left decided that the bureaucratization of all of life, administered by a remote central government, was the ideal social arrangement, some on the Left considered such a system repulsive and inhumane. Kirkpatrick Sale, for instance, argued in his book Human Scale that so much of modern life, its political dimension included, had grown dysfunctional simply by virtue of having grown. Everything was simply much too big, its scale grotesquely out of proportion to what a humane existence would appear to demand.27
Some of this earlier decentralist spirit is still alive in community-supported agriculture, the defense of farmers’ markets against federal incursions, and the “small is beautiful” outlook in general—causes associated in the public mind with, but by no means confined to, the Left. It is this spirit that would find nullification and what came to be known as the Principles of ’98—described in detail in the next chapter—congenial, and it is in this spirit that today’s burgeoning nullification movement has made inroads among the Left. Yes, Vermont and Kansas may use nullification, which the Kentucky Resolutions of 1799 described as the states’ “rightful remedy” against unconstitutional federal power grabs, for different purposes. Vermont may object to one unconstitutional law and Kansas another. Heaven knows there are plenty to choose from. But for those who do not feel compelled to mold every last community in America into their own image, and prefer instead to live and let live and mind their own business, this is quite all right. We might actually wind up with the diverse collection of self-governing communities the ratifiers of the Constitution thought they were protecting.
Unfortunately, only a tiny remnant of this school of thought remains on the Left. For the most part, we are faced with what I call the imperial Left—which, not content to let a hundred flowers bloom, seeks to impose a federally administered uniformity upon states and communities, in defiance of decentralism and localism, to say nothing of the spirit and practice of the original American republic. Proposing nullification around such people is like holding a crucifix before Dracula.
Now I do not doubt that many readers, exposed to this idea for the first time, will initially be skeptical, even dismissive. All I ask is that you give serious consideration to Jefferson’s side of things, which I have reproduced as faithfully as I can in the pages that follow. I hope to persuade you that the case for nullification is a strong one—logically, constitutionally, historically, and morally.
To my surprise, a significant number of Americans are already sympathetic to nullification, without necessarily having heard of the idea before or weighed the arguments for and against. According to a February 2010 Rasmussen Reports poll, 59 percent of likely voters believe the states should have the right to opt out of federal government programs of which they disapprove. Just 25 percent disagree, while another 15 percent are not sure.28 This is not exactly the same thing as nullification, which involves the refusal to enforce unconstitutional laws, not simply laws the states do not like. But these numbers are significant all the same.
This initial sympathy for nullification may be a product of the public’s inchoate sense that Washington, D.C., is where the least responsive level of government, significantly worse than its state and local counterparts, is to be found. The bank bailouts of 2008 are an instructive example: with constituent calls running fifty-to-one—or higher—against the bailout package, Congress eventually approved it anyway. Instead of concluding that the people had spoken, political figures simply rewrote the bill until enough pressure groups got their bribes. This much worse bill was then pushed through the House of Representatives. Democracy in action.
There is likewise a sense that matters of great importance are rushed through Congress on the spurious grounds that desperate times call for reckless measures. Whatever the merits of these measures, items ranging from the North American Free Trade Agreement and the World Trade Organization to the bailout of the Mexican peso, the PATRIOT Act, the Wall Street bailouts, and the fiscal stimulus bill of 2009—to name only a few—were imposed on the country without sufficient deliberation and (perish the thought!) likely with interests other than the public good in mind.
Some of this lack of responsiveness, in turn, is attributable to how few representatives per capita we now have, as a result of how large the country has grown. When the Constitution was ratified, there were three million Americans. When the first Congress convened in 1790, there was one member of the House of Representatives for every 30,000 people (which translated into one per 5,000 voting citizens). The size of the House was capped at 435 members in 1920, when the U.S. population was at 90 million. By 2010 the population was nearly 309 million. That’s one representative per 710,345 people. Had this ratio been observed in 1790, there would have been about four people in the House of Representatives. Were the old ratio observed today, there would be 10,300 members in the House.29 What, on such a scale, could political representation amount to? If political representation ever really meant anything, it surely doesn’t today. Governments are notoriously difficult to control, even under the best of conditions. Are we surprised when a government on this scale, so remote from popular control and oversight, routinely acts in such open defiance of public opinion?
To be sure, nullification is not a perfect remedy. It cannot solve all our problems. Like nearly any principle, it can be abused. But we are grown-ups. We understand that no political arrangement is without shortcomings, even serious ones. Whenever we try to wrestle with the issue of political power, the greatest and most dangerous monopoly in history, we are inevitably faced with imperfect choices. All we can do is ask some basic questions and be content to draw some general conclusions. Is liberty more likely to be preserved under one monopoly jurisdiction or through the competition of many jurisdictions? Where have the worst outrages against human dignity occurred: in decentralized polities or in the centralized states of the nineteenth and twentieth centuries? In which arrangement is some modicum of popular control more likely to be preserved? Would the world not have been better off had Germany remained a decentralized collection of states? Are we to believe that the American system makes none but the lamest and most ineffectual provision for the states to protect themselves against catastrophic decisions by the central power? These questions are never answered, because in our stunted political discourse, they are never asked.
As we shall see in this book, generations of Jeffersonians described nullification as the “rightful remedy” when the federal government exercised unauthorized powers. Yes, it throws a monkey wrench into the federal works. That’s precisely the point. Some will bemoan the states’ interference with the wheels of government in Washington. Why, this will be disorderly! But these are the sentiments we have heard and will always hear, until the end of time, from those who favor power over liberty. As one proponent of nullification observed, “It is impossible to propose any limitation on the authority of governments, without encountering, from the supporters of power, this very objection of feebleness and anarchy.”30
Notice, further, what these critics do not consider disorderly: the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government. The alleged chaos that would result should the states follow Jefferson’s advice and defend themselves against unconstitutional expansions of federal power is where they pretend to detect such great danger. As usual, Jefferson had the correct reply to “the supporters of power.” “I would rather be exposed to the inconveniences attending too much liberty,” he said, “than to those attending too small a degree of it.”31
Our Founding Fathers took a deliberate stance against the centralizing trends that were already at work in the eighteenth century and which would explode in the nineteenth and twentieth. Americans admired the Dutch federation, which was organized as a federative polity, and which became something of an anomaly amid the trend toward centralized states, of which the French Revolution would give the world such a notable example.32 We have allowed this unique inheritance to be undermined and destroyed, such that the United States, once a federative polity, has become just another modern unitary state like France or Germany. We have been taught to celebrate this betrayal of our Founding Fathers. We have cheered what we ought to have mourned.