CHAPTER 1
1. Matt Cover, “When Asked Where the Constitution Authorizes Congress to Order Americans to Buy Health Insurance, Pelosi Says, ‘Are You Serious?’” CNSNews.com, October 23, 2009; available at http://www.cnsnews.com/news/print/55971.
2. “A Message from Congress: No One Questions Our Authority,” CNSNews.com, February 3, 2010; available at http://www.cnsnews.com/news/print/60932.
3. Ibid.
4. Stephen Moore, “The Unconstitutional Congress,” Policy Review, Spring 1995, 22.
5. See Larry Schwab, The Illusion of a Conservative Reagan Revolution (New Brunswick, NJ: Transaction, 1991).
6. Thomas Jefferson to William Branch Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. X, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1899), 355.
7. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156. Emphasis added.
8. State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longmans, Green, 1911), 113.
9. The pseudonymous author of The Genuine Book of Nullification (1831): “Thus would the entire operation of this remedy be peaceful and systematic. And this course would not (as it has been said) intimate or involve a compulsion of other States of this Union to coincide with us in our construction of the Federal Constitution, nor that we refused to them the right of construing for themselves. So far from this being the case, we declare the fundamental principle of all State Rights’ Doctrines to be that in case of an aggression upon the Sovereign Rights of the States, each and every State which is so aggrieved has the inherent right ‘to judge for herself of the Infraction as well as of the mode and measure of redress,’ and to interpose her Sovereign shield to protect her own citizens and to maintain within her own limits her rights and authorities, without interfering in any manner with the citizens, or the Rights and Authorities of her sister States. We should not go beyond the Boundaries of our own State—whilst we left to every other State of this Union the right and power in like manner to protect her own citizens from tyrannical oppression.” Hampden (pseud.), The Genuine Book of Nullification (Charleston, SC: E.J. Van Brunt, 1831), 52. Emphasis in original. The phrase “to judge for herself of the Infraction as well as of the mode and measure of redress” is derived from the Kentucky Resolutions of 1798, composed by Thomas Jefferson and discussed in chapter 2 of the present volume.
10. Information available at http://www.SheriffsFirst.com.
11. For a full overview and critique of the Court’s arguments, see Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush (New York: Crown Forum, 2008), ch. 9.
12. See an interesting appreciation, from a left-wing perspective, of Thomas’ strict-constructionist dissent: Fred Gardner, “The Raich Decision: All Power to the Federal Government,” CounterPunch.org, June 14, 2005; available at http://www.counterpunch.org/gardner06142005.html.
13. Louisiana allows the use of medical marijuana in extremely rare instances.
14. Woods and Gutzman, Who Killed the Constitution?, 146.
15. Randy E. Barnett, “Reefer Madness,” Wall Street Journal, March 16, 2007.
16. Jennifer Steinhauer, “Los Angeles Marijuana Sellers Limited,” New York Times, January 26, 2010; available at http://www.nytimes.com/2010/01/27/us/27pot.html.
17. Committee on Health and Human Services, House Bill No. 2610; available at http://www.kslegislature.org/bills/2010/2610.pdf. Emphasis added.
18. See Patrick Reagan, “Cannabis, Compassion, and the Tenth Amendment,” February 15, 2010; available at http://www.campaignforliberty.com/article.php?view=611. Emphasis added.
19. Attorney Jeff Matthews correctly points out that if anything, these states are being too timid in confining their legislation to guns manufactured in their particular states. For one thing, a gun can cross state lines for reasons having nothing to do with commerce, as when a person moves from one state to another and brings his belongings. Just because a gun crosses state lines does not make it part of interstate commerce. For another, even if a gun were purchased from another state several decades ago, does that mean the federal government right now can regulate that product however it wishes? Surely the federal government’s regulatory control does not enjoy an infinite time horizon. See Jeff Matthews, “Commerce, Jurisdiction, and Firearms Freedom Acts,” TenthAmendmentCenter.com, April 20, 2010; available at http://www.tenthamendmentcenter.com/2010/04/20/commerce-jurisdiction-and-firearms-freedom-acts/.
20. Information available at http://www.bringtheguardhome.org.
21. See Ben Manski, “From Liberty to Empire: The Demise of American Defense” available at http://www.bringtheguardhome.org/publications/manski_liberty_to_empire_demise_of_defense.
22. Bob Unruh, “States’ Rights Rebellion over National Guard,” WorldNetDaily, January 26, 2010; available at http://www.worldnetdaily.com/index.php?pageId=122689; and Bob Unruh, “Obama’s New Pick: Gov. of State that Linked Christians, Violence,” WorldNetDaily, February 7, 2010; available at http://www.worldnetdaily.com/index.php?pageId=124238.
23. Bob Unruh, “States’ Rights Rebellion over National Guard.”
24. Ibid.
25. See John C. Calhoun, “A Discourse on the Constitution and Government of the United States,” in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), 178ff.
26. Chancellor Harper, The Remedy by State Interposition or Nullification (Charleston, SC: State Rights and Free Trade Association, 1832), 7. Emphasis added. Harper’s speech, of which this is the text, was delivered on September 20, 1830. U.S. Senator John Taylor of Caroline said the same thing: “The expression in the constitution, ‘shall be the supreme law of the land,’ is restricted by its limitations and reservation, and did not convey any species of supremacy to the government, going beyond the powers delegated or those reserved.” John Taylor, New Views of the Constitution of the United States (Washington, D.C.: Way and Gideon, 1823), 78.
27. Kirkpatrick Sale, Human Scale (New York: Coward, McCann & Geoghegan, 1980).
28. “59% Favor Letting States Opt Out of Federal Programs,” Rasmussen Reports, February 15, 2010; available at http://www.rasmussenreports.com/public_content/politics/general_politics/february_2010/59_favor_letting_states_opt_out_of_federal_programs.
29. I got the idea to calculate these figures from Donald W. Livingston, “Dismantling Leviathan,” Harper’s, May 2002, 14. I have updated Livingston’s figures to reflect the 2010 U.S. population.
30. John C. Calhoun, “Rough Draft of What Is Called the South Carolina Exposition,” in Lence, ed., Union and Liberty, 353. Emphasis added.
31. Thomas Jefferson to Archibald Stuart, December 23, 1791, in The Life and Writings of Thomas Jefferson, ed. S. E. Forman (Indianapolis: Bowen-Merrill, 1900), 397.
32. Donald W. Livingston, “The Founding and the Enlightenment: Two Theories of Sovereignty,” in Vital Remnants: America’s Founding and the Western Tradition, ed. Gary L. Gregg II (Wilmington, DE: ISI Books, 1999), 247.
CHAPTER 2
1. For additional discussion of these clauses, see Thomas E. Woods, Jr., 33 Questions About American History You’re Not Supposed to Ask (New York: Crown Forum, 2007), in addition to the sources in this book.
2. The appearance of the term “general welfare” in the preamble to the Constitution is widely understood to be purely rhetorical, since preambles are merely descriptive and not of a legally binding nature. See, among many other sources, Madison’s Report of 1800, which describes it as “contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper every part of the Constitution which succeeds the preamble.” See also Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (Lanham, MD: Lexington, 2007), 169.
3. Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.
4. James Madison, Virginia Report of 1800, excerpted in Document V.
5. Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.
6. Ibid., 106–7.
7. Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002), 501.
8. John C. Eastman, “Restoring the ‘General’ to the General Welfare Clause,” Chapman Law Review 4 (2001): 72–87; Robert G. Natelson, “The General Welfare Clause and the Public Trust: An Essay in Original Understanding,” University of Kansas Law Review 52 (2003): 29–30, 47ff.
9. The Federalist (referred to in some modern treatments as the Federalist Papers, after Clinton Rossiter’s 1961 collection of these documents) were a series of eighty-five newspaper articles pseudonymously written by Alexander Hamilton, James Madison, and John Jay, in support of ratification of the Constitution. They were composed between 1787 and 1788, and had already been assembled in a single collection by 1788.
10. See Natelson, “The General Welfare Clause and the Public Trust,” 46.
11. Randy E. Barnett, “The Original Meaning of the Commerce Clause,” University of Chicago Law Review 68 (Winter 2001); available at http://www.bu.edu/rbarnett/Original.htm.
12. Raoul Berger, “Judicial Manipulation of the Commerce Clause,” Texas Law Review 74 (March 1996): 704.
13. Ibid., 705. Emphasis in original.
14. Berger, Federalism, 89.
15. Ibid., 95–96.
16. Jefferson, “Opinion Against the Constitutionality of a National Bank,” 475–76.
17. St. George Tucker, View of the Constitution of the United States with Selected Writings, ed. Clyde N. Wilson (Indianapolis: Liberty Fund, 1999), 227–28.
18. See the contributions by Roane in John Marshall’s Defense of McCulloch v. Maryland, ed. Gerald Gunther (Stanford, CA: Stanford University Press, 1969); John Taylor, Construction Construed and Constitutions Vindicated (Richmond, VA: Shepherd & Pollard, 1820), 165, 166.
19. James Madison, Report of 1800, excerpted in Document V.
20. Kurt T. Lash, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and ‘Expressly’ Delegated Power,” Notre Dame Law Review (2008): 1907. Emphasis added.
21. H. Newcomb Morse, “The Foundations and Meaning of Secession,” Stetson Law Review 15 (1986).
22. Berger, Federalism, 65. Emphasis added.
23. Lash, “Original Meaning of an Omission,” 1907; Berger, Federalism, 64. Emphasis added.
24. Ibid., 1892. Emphasis added.
25. Berger, Federalism, 64.
26. Lash, “Original Meaning of an Omission,” 1905. Emphasis added.
27. These Federalists should not be confused with the people, also known as Federalists, who supported ratification of the Constitution. Jefferson, for instance, was a Federalist when it came to the Constitution (he supported it, with a few misgivings) but did not belong to the post-ratification political party known as the Federalists.
28. Lash, “Original Meaning of an Omission,” 1893. Emphasis in Chase’s original.
29. Charles J. Bloch, States’ Rights the Law of the Land (Atlanta: The Harrison Company, 1958), 17–18.
30. Lash, “Original Meaning of an Omission,” 1916–17.
31. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It means that the rights singled out in the Bill of Rights, although perhaps among the most significant and the ones most likely to be abused by government, do not exhaust the rights to be enjoyed by the people.
32. Lash, “Original Meaning of an Omission,” 1925.
33. This was what North Carolina’s James Iredell meant when he said the Constitution “is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given.” St. George Tucker, in what became the early republic’s predominant text on the Constitution, applied Vattel’s arguments to the American case to make precisely these points. Ibid., 1908–1909, 1923 and passim. Tucker noted that the combined effect of the Ninth and Tenth Amendments “appears to be, that the powers delegated to the federal government are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.” Tucker, View of the Constitution, 154. References to Vattel may be found throughout Tucker’s text, with particular application to popular sovereignty and the Tenth Amendment.
34. Lash, “Original Meaning of an Omission,” 1928–30.
35. Ibid., 1919, 1920–24.
36. I owe this formulation to Kevin Gutzman.
37. Berger, Federalism, 11–12.
38. Ibid., 18n63 and 19n64.
39. “Britney Spears: ‘Trust Our President in Every Decision,’” CNN.com, September 3, 2003; available at http://www.cnn.com/2003/SHOWBIZ/Music/09/03/cnna.spears.
40. Thomas Jefferson to William Cary Nicholas, September 7, 1803, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 1140.
41. See the argument in Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (New York: W.W. Norton, 1986), 115–16, 120, and ch. 6; see also Woods, 33 Questions, ch. 15.
42. Jefferson made this statement in his draft of the Kentucky Resolutions of 1798, which can be found in The Papers of Thomas Jefferson, vol. 30, 1 January 1798 to 31 January 1799, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2003), 536–43.
43. Thomas Jefferson to William Cary Nicholas, September 7, 1803, in Peterson, ed., Thomas Jefferson: Writings, 1140.
44. South Dakota v. Dole (1987), cited in William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave, 2004), 130. Emphasis added. Many other cases containing similar assertions could of course be cited.
45. “At present,” Adams said, “there is no more prospect of seeing a French army here than there is in heaven.” Marco Bassani, Liberty, State and Union: The Political Theory of Thomas Jefferson (Macon, GA: Mercer University Press, 2010), 168.
46. Bassani, Liberty, State and Union, 170.
47. Madison added, “The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of affairs, than of any other.” James Madison to Thomas Jefferson, May 13, 1798, in The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776–1826, vol. 2: 1790–1804, ed. James Morton Smith (New York: W.W. Norton, 1995), 1048.
48. Republicans argued that the Alien Friends Act violated the Fifth Amendment, and Jefferson also suggested that the Constitution’s prohibition on federal government interference with the slave trade until 1808 also prevented it from legislating on the migration of aliens, which was therefore properly a state concern.
49. Bassani, Liberty, State and Union, 167.
50. Thomas Jefferson to Samuel Smith, August 22, 1798, in The Writings of Thomas Jefferson, vol. 7, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1892–99), 275–80.
51. Watkins, Reclaiming the American Revolution, 44–47.
52. Bassani, Liberty, State and Union, 167.
53. Ibid., 163.
54. Hampden, Genuine Book of Nullification, 110.
55. Thomas Jefferson to John Taylor, November 26, 1798, quoted in Smith, ed., The Republic of Letters, 1071.
56. Thomas Jefferson to Abigail Adams, July 22, 1804, in The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams, vol. 1, ed. Lester J. Cappon (Chapel Hill, NC: University of North Carolina Press, 1959), 275.
57. Smith, ed., The Republic of Letters, 1068.
58. Bassani, Liberty, State and Union, 161.
59. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 75.
60. Ibid.
61. Emphasis added. The full text of the Kentucky Resolutions of 1799 is reproduced in Document IV.
62. It has often been said that the Virginiabeen said that the Virginia Resolutions of Madison were more restrained than the Kentucky Resolutions of Jefferson. But this argument has been carried too far. “The distinction so often drawn between Jefferson’s strident and Madison’s moderate tone seems strained,” writes historian Kevin Gutzman. “There is no difference between ‘null, void, and of no force or effect’ and ‘invalidity,’ between ‘nullifying’ a statute and ‘interpos[ing]’ to prevent its enforcement.” Kevin R. Gutzman, “A Troublesome Legacy: James Madison and ‘the Principles of ’98,’” Journal of the Early Republic 15 (Winter 1995): 581. It is hard to credit the idea that in the midst of calls for nullification, and with secession on the lips of people like John Taylor of Caroline and William Branch Giles, a man as intelligent as Madison wouldn’t have known how his words would be taken. “One of Madison’s most notable ‘tactical adjustments,’” Gutzman continues, was “his campaign, as a retired former president, to becloud the events of 1798 by denying they had meant what they plainly had meant.” K. R. Constantine Gutzman, “‘Oh, What a Tangled Web We Weave…’: James Madison and the Compound Republic,” Continuity 22 (Spring 1998): 22. That Madison indicated in 1830 that he had never meant to propose nullification in his work on the Constitution or in his Virginia Resolutions of 1798 is very difficult to credit. That is certainly how other state legislatures had understood his words at the time. Indeed, Madison’s frequent change of positions throughout his career was well known. Albert Taylor Bledsoe was blunt: “The truth seems to be, that Mr. Madison was more solicitous to preserve the integrity of the Union, than the coherency of his own thoughts.” Albert Taylor Bledsoe, The War Between the States (Lynchburg, VA: J. P. Bell, 1915), 158. (Bledsoe’s book was originally published in 1866 under a different title.) Madison even tried denying that Jefferson had included the word “nullification” in his draft of the Kentucky Resolutions of 1798, an assertion he knew was false since he had seen the draft himself. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, Madison had to withdraw that claim. Watkins, Reclaiming the American Revolution, 114.
A widely read book on nullification, published in 1831, dealt a blow to Madison’s efforts to explain away his earlier writing. Hampden, the pseudonymous author, noted that the other state legislatures clearly interpreted the Virginia Resolutions to mean that the states could interpose for the protection of their people against the unconstitutional encroachments of the federal government. “How were these replies and protests of the States met by Mr. Madison in his famous and elaborate report upon them in ’99? Does he declare in his report that they had misapprehended, or in any way misrepresented his meaning in his resolutions of ’98? No indeed! Nothing of the kind!…Indeed it is apparent from the whole political course of Mr. Madison that his fundamental principles in politics are those of consolidation and monarchy—he so openly declared them in his Speeches in the General Convention, and such were his known and commonly avowed opinions of that day. When however, under the superior and more republican mind of Mr. Jefferson the Doctrines of State Rights became universally prevalent, and those of Consolidation were most odious and unpopular, we find Mr. Madison supporting these Republican principles with all the vigor of his naturally fine intellect, under the mentorship of his illustrious friend. But alas, upon the demise of that great man we find Mr. Madison again relapsing into his original strong Federal and Consolidation tenets—giving to the words and sentiments of his early and vigorous manhood a construction totally repugnant to their obvious and universal acceptation and in opposition to the contemporaneous understanding of his friends and of the Legislatures of the day.” Hampden (pseud.), The Genuine Book of Nullification (Charleston, SC: E. J. Van Brunt, 1831), 54, 55.
On the weakness of Madison’s later efforts to show that the Virginia Resolutions did not mean what they clearly did mean and what everyone had taken them to mean, see Kevin R. C. Gutzman, “From Interposition to Nullification: Peripheries and Center in the Thought of James Madison,” Essays on History 36 (1994). Essays on History is the University of Virginia’s online journal. As of this printing the article is available online at http://www.constitution.org/jm/gutzman1.html. See also Bassani, Liberty, State and Union, 195–96. A small industry has developed in defense of the claim that in spite of appearances, and in spite of what partisan humor at the time joked about, Madison was in fact perfectly consistent throughout his political career. The classic statement of this position is Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the American Republic (Ithaca, NY: Cornell University Press, 1995). For the other side, see Kevin R. C. Gutzman, James Madison and the Making of America (New York: St. Martin’s, forthcoming 2011).
63. Kilpatrick, The Sovereign States, 315n28.
64. Gutzman, Virginia’s American Revolution, 126, 127.
65. Kilpatrick, The Sovereign States, 82.
66. Speech of Edward Livingston on the Alien Bill, June 19, 1798, in American Oratory, or Selections from the Speeches of Eminent Americans, compiled by A Member of the Philadelphia Bar (Philadelphia: DeSilver, Thomas & Co., 1836), 128.
67. The Virginia and Kentucky Resolutions of 1798 and ’99; with Jefferson’s Original Draught Thereof, and Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to State Rights, with Other Documents in Support of the Jeffersonian Doctrines of ’98, ed. Jonathan Elliot (Washington, D.C.: Jonathan Elliot, 1832), 9.
68. Ibid.
69. Ibid., 11, 13.
70. Bassani, Liberty, State and Union, 178.
71. James Madison, Report of 1800, excerpted in Document V.
72. Bassani, Liberty, State and Union, 161–62.
73. Eugene D. Genovese, The Southern Tradition: The Achievement and Limitations of an American Conservatism (Cambridge: Harvard University Press, 1994), 56–57.
CHAPTER 3
1. William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave, 2004), 116.
2. Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776–1840 (Lanham, MD: Lexington, 2007), 114.
3. To His Excellency Thomas Jefferson: Letters to a President, ed. Jack McLaughlin (New York: W.W. Norton, 1991), 19.
4. Ibid., 21.
5. Ibid., 27.
6. James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 127.
7. State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longmans, Green, 1911), 34.
8. Ibid., 40.
9. Ibid., 41–42.
10. Ibid., 43–44. Emphasis added.
11. Ibid., 58.
12. Edward Payson Powell, Nullification and Secession in the United States: A History of the Six Attempts During the First Century of the Republic (New York: G.P. Putnam’s Sons, 1897), 211.
13. Ibid., 224.
14. Ames, ed., State Documents on Federal Relations, 71–72. Emphasis added.
15. Ibid., 75.
16. On the unconstitutionality of the draft, see Thomas E. Woods, Jr. and Kevin R. C. Gutzman, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush (New York: Crown Forum, 2008), ch. 8.
17. Ames, ed., State Documents on Federal Relations, 76.
18. Ibid., 76–77.
19. Daniel Webster, speech before the House of Representatives, December 9, 1814, in We Who Dared to Say No to War: American Antiwar Writing from 1812 to Now, eds. Murray Polner and Thomas E. Woods, Jr. (New York: Basic Books, 2008), 5.
20. Clyde N. Wilson, “Q&A on Nullification and Interposition,” LewRockwell.com, February 8, 2010; available at http://www.lewrockwell.com/wilson/wilson32.1.html.
21. Webster, speech before the House of Representatives, December 9, 1814, in Polner and Woods, eds., We Who Dared to Say No to War, 9. Emphasis added.
22. Ames, ed., State Documents on Federal Relations, 76.
23. Emphasis in original. The full text of both the resolutions and the report appears in The Virginia and Kentucky Resolutions of 1798 and ’99; with Jefferson’s Original Draught Thereof, and Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to State Rights, with Other Documents in Support of the Jeffersonian Doctrines of ’98, ed. Jonathan Elliot (Washington, D.C.: Jonathan Elliot, 1832), 80–81.
24. Ames, ed., State Documents on Federal Relations, 53.
25. Ibid., 142.
26. Ibid., 149.
27. Watkins, Reclaiming the American Revolution, 98–99.
28. Moreover, when during the Mexican War some pro-slavery southerners contemplated the annexation of all of Mexico, Calhoun was strongly opposed.
29. See H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens, OH: Ohio University Press, 2006), 122.
30. According to Clyde Wilson, the distinguished historian who edited The Papers of John C. Calhoun, the argument that the nullification controversy of 1832–1833 was “really” about slavery “became a popular theory for the first time in the 1960s. It had not occurred to anyone before…. The South Carolinians, and every other state, and every Northern free trader, and every tariff advocate said at the time it was about tariff protection—its actual results and its justice or injustice. Nobody said a word about slavery. The interpretation basically comes back to the belief that everything that Southerners do and say is a code word about race, and that what they said about the tariff was therefore not really sincere and not really valid.” Clyde N. Wilson, personal correspondence with the author, February 23, 2010.
31. Ames, ed., State Documents on Federal Relations, 175–76.
32. For an overview of the constitutional case against the Fugitive Slave Act of 1850, see Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860 (Chapel Hill, NC: University of North Carolina Press, 1968), ch. 2.
33. Robert Wild, “The Spirit of Nullification and Secession in the Northern States,” Proceedings of the State Bar Association of Wisconsin (Milwaukee: The Evening Wisconsin Printing Co., 1912), 135.
34. Baker, The Rescue of Joshua Glover, 10.
35. Kilpatrick, The Sovereign States, 215.
36. Baker, The Rescue of Joshua Glover, 93. Emphasis in original.
37. Ibid., 118, 120–21, 132.
38. Lane County v. Oregon, quoted in Kurt T. Lash, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and ‘Expressly’ Delegated Power,” Notre Dame Law Review (2008): 1950.
39. I owe this last point to Robert P. Murphy.
CHAPTER 4
1. Donald W. Livingston, “The Founding and the Enlightenment: Two Theories of Sovereignty,” in Vital Remnants: America’s Founding and the Western Tradition, ed. Gary L. Gregg II (Wilmington, DE: ISI Books, 1999), 261.
2. Not all compact theorists supported nullification; John Randolph of Roanoke, like numerous others, believed in the right of secession but not nullification.
3. Joseph Story, Commentaries on the Constitution of the United States, 4th ed., vol. 1 (Boston: Little, Brown, 1873), 124. The first edition was published in 1833.
4. The Correspondence and Public Papers of John Jay, vol. 3, 1782–1793, ed. Henry P. Johnston (New York: G.P. Putnam’s Sons, 1891), 454. Emphasis removed. Jay’s remarks are drawn from his opinion in Chisholm v. Georgia (1793).
5. Abel P. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, VA: Edmund and Julian C. Ruffin, 1840), 11.
6. Ibid., 12.
7. Ibid., 14.
8. Jackson’s Proclamation is available at http://avalon.law.yale.edu/19th_century/jack01.asp.
9. Littleton Waller Tazewell, A Review of the Proclamation of President Jackson (Norfolk: J.D. Ghiselin, 1888), 25. Tazewell’s reply to Jackson originally appeared as a series of newspaper articles following the issuance of Jackson’s Proclamation of December 10, 1832.
10. Upshur, Brief Enquiry, 15.
11. Alden T. Vaughn, New England Frontier: Puritans and Indians 1620-1675, 3rd ed. (Norman, OK: University of Oklahoma Press, 1995), 174–75, 176–77.
12. Alexis de Tocqueville, Democracy in America, vol. 2, trans. Henry Reeve (New York: D. Appleton, 1904), 426. Volume 1 of Democracy in America was originally published in 1835 and volume 2 in 1840.
13. Richard Cobden to W. Hargreaves, June 22, 1861, in The Life of Richard Cobden, vol. 2, ed. John Morley (London: Macmillan, 1908), 381–82.
14. Upshur, Brief Enquiry, 15.
15. Story, Commentaries, vol. 1, 158.
16. If the First Continental Congress had had the character Story ascribes to it, it would be more difficult to account for the lackluster response from such colonies as Georgia and New York. Georgia was not represented as a colony; one person from Georgia was admitted as a delegate from his parish but did not vote on issues that required a majority of colonies to pass, since he had not been sent as a delegate of a colony. New York’s representation was even more confusing, with various people from different parts of the colony portraying themselves as delegates from New York but not being recognized as such by the colonial government. The Continental Congress, Upshur explains, was “a deliberative and advisory body, and nothing more; and, for this reason, it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of congress had no obligatory force whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures, for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given.” Upshur, Brief Enquiry, 20.
17. Upshur, Brief Enquiry, 31.
18. Ibid., 33.
19. Emmerich de Vattel, The Law of Nations, trans. Joseph Chitty (Philadelphia: T. & J.W. Johnson, 1867 [1758]), 2.
20. Robert Wild, “The Spirit of Nullification and Secession in the Northern States,” Proceedings of the State Bar Association of Wisconsin (Milwaukee: The Evening Wisconsin Printing Co., 1912), 125.
21. Thomas Jefferson to Edward Everett, April 8, 1826, in The Writings of Thomas Jefferson, vol. X, 1816–1826, ed. Paul Leicester Ford (New York: G.P. Putnam’s Sons, 1899), 385.
22. “The United States were states, and they had joined together. The fact that their union had no set end date, in part because the length of the war could not be foreseen, was denoted by calling it ‘perpetual.’ (In those days treaties between European states often purported to be ‘perpetual.’ This did not mean that neither side could bring a treaty agreement to an end, but that there was no built-in sunset provision.)” Kevin R. C. Gutzman, The Politically Incorrect Guide to the Constitution (Washington, D.C.: Regnery, 2007), 12. Do not let this book’s playful title fool you; it is a very significant work, even if tailored to a popular audience.
23. See Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913), 190-91.
24. Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776–1840 (Lanham, MD: Lexington, 2007), 11.
25. Ibid., 19.
26. Ibid., 22.
27. Ibid., 30.
28. Raoul Berger, Federalism: The Founders’ Design (Norman, OK: University of Oklahoma Press, 1987), 65.
29. Kevin R. C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” Review of Politics 66 (Summer 2004): 491.
30. Gutzman, Virginia’s American Revolution, 86.
31. Ibid.
32. James Madison, who unlike Randolph and Nicholas was never an attorney general and was not even a lawyer, wrote to a friend at the time that these conditions would have no legal force. He was wrong. As Professor Gutzman puts it, “Charity compels one to blame this misstatement on [Madison’s] ignorance of the law of contracts and of treaties.” Kevin R. C. Gutzman, “On Constitutional Issues,” Modern Age 42 (Fall 2000): 399.
33. For the text, see “A Memorial From the General Assembly of Virginia,” December 16, 1790, in Hamilton and the National Debt, ed. George Rogers Taylor (Boston: D.C. Heath, 1950), 56–57. The General Assembly argued not simply that the power to assume the debts had not been granted, but also that such power had been expressly foreclosed by Article VI of the Constitution, which read in relevant part: “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
34. Patrick Henry: Life, Correspondence and Speeches, vol. 2, ed. William Wirt Henry (New York: Charles Scribner’s Sons, 1891), 456.
35. Ibid., 457.
36. Thomas Jefferson to James Madison, August 23, 1799, in The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776–1826, vol. 2: 1790–1804, ed. James Morton Smith (New York: W.W. Norton, 1995), 1119.
37. Gutzman, Virginia’s American Revolution, 118.
38. Ibid., 120.
39. The classic exposition of this view is Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” William and Mary Quarterly 5 (April 1948): 145–76.
40. Gutzman, Virginia’s American Revolution, 130.
41. Ford, ed., The Writings of Thomas Jefferson, vol. X, 349n1.
CHAPTER 5
1. Ralph Raico, “The Theory of Economic Development and the ‘European Miracle’: The Vindication of P.T. Bauer,” manuscript in possession of the author; a shorter version appeared in The Collapse of Development Planning, ed. Peter J. Boettke (New York: New York University Press, 1993).
2. Jean Baechler, The Origins of Capitalism (New York: St. Martin’s, 1976), ch. 7. See also Thomas E. Woods, Jr., “Cobden on Freedom, Peace, and Trade,” Human Rights Review 5 (October-December 2003): 77–90.
3. Robert Nisbet, The Quest for Community: A Study in the Ethics of Order and Freedom (New York: Oxford University Press, 1953), 98.
4. For the discussion of federative polities and modern states I am deeply indebted to Donald W. Livingston, “The Founding and the Enlightenment: Two Theories of Sovereignty,” in Vital Remnants: America’s Founding and the Western Tradition, ed. Gary L. Gregg II (Wilmington, DE: ISI Books, 1999), 243–74.
5. According to the libertarian Benjamin Constant, “The interests and memories which spring from local customs contain a germ of resistance which is so distasteful to authority that it hastens to uproot it. Authority finds private individuals easier game; its enormous weight can flatten them out effortlessly as if they were so much sand” [emphasis added]. Alexis de Tocqueville noted in horror, “The old localized authorities disappear without either revival or replacement, and everywhere the central government succeeds them in the direction of affairs.” Livingston, “The Founding and the Enlightenment,” 251–52.
6. Thomas E. Woods, Jr., 33 Questions About American History You’re Not Supposed to Ask (New York: Crown Forum, 2007), 78–79.
7. Thomas E. Woods, Jr., Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse (Washington, D.C.: Regnery, 2009).
8. Adolf Hitler, Mein Kampf, trans. Ralph Manheim (New York: Hutchinson, 1969 [1925–26]), 526.
9. Senate Bill No. 311; available at http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+SB311.
10. House Bill 391; available at http://www.legislature.idaho.gov/legislation/2010/H0391.pdf.
11. Jeff Matthews, “To Our State Legislators: Nullification Requires Protection of Citizens,” March 29, 2010; available at http://www.tenthamendmentcenter.com/2010/03/29/to-our-state-legislators-nullification-requires-protection-of-citizens/.
12. H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens, OH: Ohio University Press, 2006), 162. Emphasis added.
13. Thomas J. DiLorenzo, “The Lunatic Left Is Getting Desperate,” LewRockwell.com, March 22, 2010; available at http://www.lewrockwell.com/dilorenzo/dilorenzo183.html.
14. Ibid.
15. These figures come from Richard Fisher, president of the Federal Reserve Bank of Dallas, cited in Charles Goyette, The Dollar Meltdown (New York: Portfolio, 2009), 34–35.
16. I realize that there are some constitutionalist circles in which the very words “constitutional convention” are enough to condemn someone forever. I used to hold the same view until it finally dawned on me: what exactly is the nightmare scenario we are supposed to fear? That an amendment may be proposed granting the Congress general (rather than limited and enumerated) legislative power? Even if three-fourths of the states could somehow be persuaded to adopt such a thing, that’s in practice what we already have. That the president may have a free hand in foreign affairs and domestic surveillance? We already have that. That the federal government may borrow and tax without limit? We have that, too. That a Federal Reserve System may destroy our money? We’re already there. It’s getting worse all the time, in spite of the enormous and ongoing educational efforts on the part of countless grassroots activists. This is partly because the system is stacked against us. It may need to be tipped back in the direction of the states and the people by means of structural change.
17. See Woods, 33 Questions, ch. 28; Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Durham, NC: Carolina Academic Press, 1998).
18. Hampden (pseud.), The Genuine Book of Nullification (Charleston, SC: E. J. Van Brunt, 1831), 1. Emphasis added.
19. Jeff Woods, “State Legislator Says She Plans to Introduce ‘Nullification’ Bill,” Nashville City Paper, December 29, 2009; available at http://nashvillecitypaper.com/content/city-news/state-legislator-says-she-plans-introduce-nullification-bill.
20. Murray N. Rothbard, Libertarian Party Keynote Address, 1977; excerpted at http://www.lewrockwell.com/rothbard/rothbard137.html.
21. Sanford Levinson, “States Can’t Nullify Federal Law,” Austin American-Statesman, February 6, 2010; available at http://www.statesman.com/opinion/insight/commentary-states-cant-nullify-federal-law-217250.html.
22. Ibid.
23. F. M. Anderson, “Contemporary Opinion of the Virginia and Kentucky Resolutions,” American Historical Review 5 (December 1899): 225–52.
24. State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longmans, Green, 1911), 43–44. Emphasis added.
25. The Virginia and Kentucky Resolutions of 1798 and ’99; with Jefferson’s Original Draught Thereof, and Madison’s Report, Calhoun’s Address, Resolutions of the Several States in Relation to State Rights, with Other Documents in Support of the Jeffersonian Doctrines of ’98 (Washington, D.C.: Jonathan Elliot, 1832), 81.
26. William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave, 2004), 117.
27. Thomas Jefferson to Charles Hammond, August 18, 1821, The Writings of Thomas Jefferson, vol. XV, ed. Albert Ellery Bergh (Washington, D.C.: Thomas Jefferson Memorial Association, 1907), 331–32.
28. Jon Roland, “Nullification is a Serious Option,” Austin American-Statesman, February 8, 2010; available at http://www.statesman.com/opinion/nullification-is-a-serious-option-221199.html. My summary of Roland’s views also derives from personal correspondence dated January 24, 2010.