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Introduction

Conceived in Liberty by Murray N. Rothbard was first published in 1975 by Arlington House, Publishers. In 1999 it was republished and copyrighted by the Ludwig von Mises Institute. In a detailed narrative well supported by period documents as well as historical interpretation, Rothbard describes the European settlement of the North American continent from its beginning in 1564 to the post-revolutionary confederation of states in 1784. Rothbard writes from an explicitly libertarian point of view; thus, in Volume 4 (pg.237) he states:

“The polar opposites in political regimes were slavery on the one hand, and self-government on the other, and self-government or self-direction was the key to liberty, not government by law, since laws can be and are made by one person or set of persons to bind others.”

The conflict between these “polar opposites” is the timeless theme of this work.

Volume I: A New Land, A New People: The American Colonies In The Seventeenth Century.

European adventurers in the Holy Land discovered pepper and silk from the orient and the race was on. Soon all of the European maritime countries were exploring the oceans to find a way to get these luxuries. Then Columbus bumped into an island.

European countries staked a claim on the new continent without consulting the native population, who had no notion of property in real estate, then the royal bureaucrats parceled out the land to royal favorites, including themselves. The feudal model of society and government was exported along with the colonists who were supposed to develop the wilderness in the name of their monarch. To accomplish the hard physical work entailed in that development, slaves were demanded. Call them what you will, serfs, peasants, yeomen, indentured servants, the first people who cleared the forests and plowed and planted and harvested were white slaves exported from their European homeland in servitude to their masters and to their states. And they were not happy about it. Rothbard dramatically details the intense and relentless conflicts between masters and slaves in every colony.

Religious fanaticism contributed no small part to the misery and, in addition, confused the issue in many places, especially in the Puritan colonies where religious leaders were also temporal masters. I was shocked and horrified by what the people had to endure, which is a tribute to the skill of the writer as well as a condemnation of what actually happened.

The absolute evil of the enslavement of African people also arose during this century and grew as the colonies grew. There were slave markets in all of the major cities, north and south, while the financial gains went primarily to British, Dutch, and New England shipping magnates. Few people remarked the contradiction inherent in the Christian slave trade; speaking against it was a dangerous thing to do.

The truly remarkable and nearly unbelievable thing that occurred in Seventeenth Century America was the settlement of Pennsylvania by the pacifist Quakers. They denounced slavery and they renounced the use of force and, once arrived, they ignored their royal master, paid no taxes, bought their land from the Indians, and worked industriously for their own individual purposes. They enjoyed twenty years of utter anarchy! But they were brought to heel in the end.

Less remarkable, but more significant for future events, was the emergence of Rhode Island as an unauthorized colony in the midst of royal estates. It became a refuge for political and religious dissidents and a defiant harbor of free trade.

Volume II: “Salutary Neglect”: The American Colonies In The First Half Of The Eighteenth Century.

England emerged as the dominant imperialist force in America after defeating France and Spain in war, and although the British Parliament passed laws aimed at fleecing the colonists, these laws were poorly enforced, a deliberate Whig policy called “Salutary Neglect.” Trade flourished between America, Europe, and the West Indies, as well as between the colonies themselves. Differences between the colonies gradually disappeared as common forms of local government and common experiences among the colonists brought people together. Moreover, the works of Isaac Newton and John Locke were becoming ever more popular in England as well as America, arousing a new spirit of rational inquiry into the laws of nature and the nature of man.

Harmonious settlement was continually disrupted, however, by conflicts between the settlers and their appointed masters. European immigrants poured into the wilderness and carved out homesteads for themselves, only to discover that powerful officials had claims on the land and assumed claims on their persons and property. Many forms of taxation were devised, and resisted. Southern governors suppressed slave rebellions, while northern governors suppressed sedition and tax evasion.

The British Tory war party initiated a new war against France by mid-century. In America it became known as the French and Indian War and it was, Rothbard points out, a deliberate land-grab. The British emerged victorious and the Tories swept the Whigs from office. Rothbard concludes Volume II on this note (pg.268):

“Enjoying the blessings of Salutary neglect, the American colonies had been able, in the first half of the eighteenth century, to ignore the de jure mercantilist restrictions and edicts of Great Britain and to flourish in virtual de factoindependence from the mother country. It was high time, the British imperialists felt, to cast off the restrictions of salutary neglect and to bring the American colonies to heel.”

Volume III: Advance To Revolution, 1760—1775

The British boot came down hard; the Crown wanted its loot. Stern new laws restricting and taxing imports, exports, and manufacturing were imposed and more or less obeyed. Then, in 1765, Parliament passed the Stamp Act.

This was a sinister threat indeed, for it required that all documents, from a bill of sale to a marriage license, be written on specially stamped paper available only from British agents. Americans were aghast at the prospect, but did not know how to respond. There did not seem to be any way around it.

Then a young lawyer in the Virginia House of Burgesses by the name of Patrick Henry made an impassioned speech calling for resolutions to protest the law. Seven “Virginia Resolves” were drafted by Henry and his group of young radicals, each one more defiant than the one before. Conservatives defeated the sixth and seventh and, behind Henry’s back, repealed the fifth, but all seven were published in newspapers elsewhere as if they had been passed. Rothbard writes (pg.102):

“But if most people were awakened and stirred by Henry and Virginia, who would lead them? For the masses cannot act without some form of organization and articulate leadership.” (Emphasis mine)

“No help, of course, could be expected from the arch Tory and opportunist, Benjamin Franklin.”

He continues (pg.104): “In the early summer of 1765, Sam Adams gathered together a group of Bostonians to lead and direct the people in the streets.” What ensued was no less than a mini-revolution where masses of people rose up against the British Stamp agents throughout the colonies and forced them to resign their royal posts. It was a brilliant strategy, and it worked; British ships were not allowed to land the stamped paper. After much political wrangling, Parliament repealed the Stamp Act the following March.

The success of united action brought Americans closer together than ever before, while in England it encouraged the people at the same time that it infuriated the Tories and George III. That fury resulted in the Townshed Acts of 1767 which “imposed new import duties on glass, lead, paint, paper, and tea.” (pg.166) “As a companion to the new duties, another Townshed Act radically increased the enforcement powers of British officialdom.” (pg.167)

The American response was to organize a colony-wide boycott of British imports. Organizing the colonies to agree to this boycott was no easy task, but it was done, and it worked. All but one of the Townshed Acts was repealed in 1770. The one that remained was the tax on tea.

The British Crown tried to accomplish two things. One, to bail out their own bankrupt creature, the East India Company, and two, once again, to plunder the American colonists. The tax was modest and could have easily been paid. What the Americans feared was encroachment by the East India Company, a state monopoly backed up by the British Army. Rothbard writes (pg.263):

“Defense of one’s property and commerce against a privileged monopoly is required by libertarian principle. Liberty implies property rights and free trade; it does not contradict them.” (Emphasis his.)

The previous revolts had resulted in the formation of the armed Sons of Liberty and the extra-legal Committees of Correspondence, so the colonies had a proto-army and efficient communications. They were unable to convince the designated consignees to refuse the tea shipments. Three ships arrived in Boston harbor, but the radicals patrolled the docks and the ships could not unload. The royal governor planned to seize the ships and unload them with the troops. Time was running out. On December 16, 1773, “a great mass meeting of the ‘body’ of eight thousand people learned of Hutchinson’s refusal to allow the Dartmouth to sail home.” (pg.267) “The prominent merchant John Rowe asked meaningfully, ‘Who knows how tea will mingle with salt water?’” (pg.267) “Thereupon, a remarkably disciplined ginger group of Sons of Liberty, disguised as Mohawk Indians, rushed to Griffin’s Wharf, boarded all three tea ships, and spent several hours of the night dumping every bit of East India tea into Boston Harbor.” (pg.267)

British government was horrified, British people were delighted. “The Crown called Parliament into session in early March 1774 and presented a series of four Coercive Acts designed to bring Britain’s might to bear upon Boston.” (pg.273) The Coercive Acts closed the port of Boston, established a royal counsel in Massachusetts and barred town meetings, exempted royal officials from high crimes, and quartered British troops on the people. An army of occupation would put an end to colonial resistance once and for all.

“The embattled colonists, sharpened and increasingly unified by the years of struggle for liberty against Great Britain, hastened to accept that challenge.” (pg.279) The Committees of Correspondence got busy. “On September 5, 1774, there met at Philadelphia the most fateful and momentous assemblage ever gathered in the colonies: the Continental Congress.” (pg.296) They decided to reinstate the boycott on all imported British goods.

On April 18, 1775, General Gage sent a troop of infantry to capture Sam Adams and John Hancock and a rebel supply dump in Concord. He expected little opposition. The troop met John Parker and seventy minutemen at Lexington. Shots rang out and the Americans fell. The British troop went on to Concord. “While the British were destroying the remaining stores, three to four hundred militiamen gathered at the bridge into Concord and advanced on the British rear guard.” (pg.328) They drove the British off the bridge. The tumult attracted more and more Americans to the fight. The British return to Boston became a nightmare. “Events could not have gone better for the American cause: initial aggression and massacre by the arrogant redcoats, then turned into utter rout by the aroused and angry people of Massachusetts.” (pg.329)

The American Revolution had begun.

Volume IV: The Revolutionary War, 1775—1784

The Second Continental Congress met on May 10 and here the ultimate fate of America would begin to take form. The heart of every particular issue that faced this Congress over the next decade was whether to allow people to run their own affairs, or to rule them in the time honored master-slave political model. War was at hand. Conservatives wanted to ignore the popular uprising in Massachusetts and appeal to the Crown for compromise; radicals wanted to support the uprising. Rothbard writes (pg.32):

“Here the Massachusetts radicals were in a cruel dilemma; any army under the Continental Congress would mean, in contrast to a guerrilla army, the inevitable buildup of central state apparatus, and of a highly expensive and burdensome state army, which would inevitably saddle all Americans with heavy taxes, inflation, and debt.”

Congress chose to establish an army. Further wrangling between conservatives and radicals led to the appointment of George Washington to lead that army; Washington, although militarily inept and unqualified, was both an arch conservative and a radical, like most of the Virginia oligarchy, and was chosen as a political compromise.

Rothbard makes clear that the colonies were by no means united in purpose at this point. Americans were willing to fight against British coercion, but many, if not most, saw themselves as British subjects fighting unjust laws; remove the laws, as before, and they would become peaceful subjects once more. “Furthermore, the old and obsolete Whig ideal of virtual independence under a figurehead king of both Britain and America could only be shattered if the king were to be attacked personally.” (pg.135) The man who did so was Thomas Paine.

Paine had exceptionally clear insight into what was happening in America. Self-educated, working class, and already middle-aged, he arrived in Philadelphia in 1774 and went to work for a printer. He published a pamphlet denouncing slavery the following year. “Lexington and Concord moved Paine to turn his talents to the radical revolutionary cause.” (pg.136) Then, in January of 1776, Paine published his Common Sense. “Tom Paine had, at a single blow, become the voice of the American Revolution and the greatest single force in propelling it to completion and independence.” (pg.137)

“On June 7, in happy obedience to the instructions resolved by Virginia on May 15, Richard Henry Lee submitted to the Continental Congress a momentous resolution for the independence of the United Colonies.” (pg.175) For once the Congress agreed and the committee to draft such a declaration was appointed on June 11. Thus the Declaration of Independence was completed and approved by Congress on July 4, 1776.

Meanwhile, the war was heating up. “The mighty British invasion force began to assemble off New York City in late June, 1776. It was headed by the Howe brothers, Gen. Sir William Howe in charge of land forces and his brother Admiral Richard Lord Howe, newly appointed overall commander-in-chief of the American theater.” (pg.187)

George Washington with 19,000 militia stood opposed to 32,000 redcoats and 10,000 seamen. “If the British commanders had applied even moderate intelligence or devotion to their task, they could probably have wiped out Washington’s army then and there and perhaps won the war on the spot.” (pg.188) But they didn’t, and historians still wonder why. Was it because the Howe brothers were Whigs and therefore sympathetic to the American cause? Washington amply demonstrated his incompetence while the Howe brothers dithered and chased him around and finally allowed his army to escape.

While the war erupted in sporadic campaigns, the battle for power in Congress continued unabated. Rothbard describes the struggle (pg.244):

“And what of the revolutionary radical principle of locating sovereignty in the people themselves rather than in the ‘legitimate’ government? Would not this be an insuperable barrier to the Right? But here the able conservatives proved shrewd indeed; they managed to drop quickly the belief in the sovereignty of the crown, and demagogically to incorporate the radical doctrine of popular sovereignty for their own ends. Indeed, they cynically appeared to bemore democratic than the radicals; for they argued that only a strong national government could really represent all the people.” (Emphasis his.) And here the fraud of democratic government was born.

The Articles of Confederation passed by the Continental Congress in 1777 contradicted the Declaration of Independence, and so the libertarian cause was lost before it had hardly begun. The conservatives, led by the landed aristocracies, the traditional oligarchs of north and south, got what they wanted, a powerful central government designed to protect their financial interests. The radicals were conceded some rights for the common people as a sop to popular sentiment, all knowing that it would pose no threat to power in the long run.

The British, unable to pin down Washington’s army, and constantly harassed by spontaneous eruptions of militia in the north, changed their strategy to an all out attack on the southernmost colony, Georgia. They expected to enlist local Tory supporters and then march north, conquering the colonies one by one. They took the coastal region easily, but they once again overestimated Tory support and underestimated local militia resistance. In addition, both France and Spain had declared war on Great Britain, which divided British attention and manpower.

The final battle in the war ended at Yorktown on October 19, 1781. The French fleet bombarded the city from the sea while the American forces bombarded the city from land. The British surrendered. Rothbard summarizes (pg.365):

“And so the revolutionary United States of America threw off the British yoke and won the first successful war of national liberation against western imperialism. Many factors entered into the victory, but the most important was the firm support for the war by the great majority of the American people. It was that support which harassed, enveloped, and finally destroyed the proud British armies come to conquer and occupy in the name of traditionally legitimate government. It was a revolution fueled by fervent belief in libertarian natural rights ideology and by cumulative reaction to growing British infringement on those rights, political, constitutional, and economic. Its victory was essentially a people’s victory, of guerrilla strategy in its broadest sense: not only of the small, mobile guerrilla bands of the Marions and the Sumters, but also of ephemeral and suddenly appearing militia who largely fought in their own neighborhoods and on their own terrain.”

Conclusion

This is history written at its finest. Murray Rothbard is a powerful writer, yet his text is as easy to read as any skillfully written fiction. Indeed, some of the events he describes seem as strange as fiction. I come away from this work with a sense that Rothbard wrote with glee, that he might have been laughing when he slapped down yet another historical myth; certainly he never failed to entertain me.

On the subject matter itself, I am sad to see that what was so nearly won was so completely lost.

Robert Klassen [send him mail] is a medical technician and writer. Here’s his web site.

Copyright © 2002 Robert Klassen, from LewRockwell.com

Article brought to you by Tenth Amendment Center.

Last year, when writing “Early Pennsylvania, Nullifying the Way to Freedom“, an article about Pennsylvania’s use of nullification in resistance to federal efforts at enforcement of the Fugitive Slave Acts, I learned of the Germantown Petition.  This radical petition circulated among the Quakers and Mennonites of Pennsylvania in 1688, nearly two centuries before the Civil War.  According to wikipedia,

In 1688, five years after Germantown was founded, Pastorius and three other men petitioned the Dublin Quaker Meeting.  The men gathered at Thones Kunders’s house and wrote a petition based upon the Bible‘s Golden Rule, “Do unto others as you would have them do unto you,” urging the Meeting to abolish slavery.  It is an unconventional text in that it avoids the expected salutation to fellow Quakers and does not contain references to Jesus and God.  It argues that every human, regardless of belief, color, or ethnicity, has rights that should not be violated.

And

The 1688 petition was the first American document of its kind that made a plea for equal human rights for everyone.  It compelled a higher standard of reasoning about fairness and equality that continued to grow in Pennsylvania and the other colonies with the Declaration of Independence and the abolitionist and suffrage movements, eventually giving rise to Lincoln’s reference to human rights in the Gettysburg Address.

Classical liberal thought of this nature was visionary for a time period that was more years before the beginning of the Civil War than have now passed since the Civil War’s ending.  As a Pennsylvanian with family heritage dating back to Bucks County Quakers in 1683, I was proud to learn of this initiative.  It is fascinating to imagine that this petition might even have been discussed among my own family members’ meetings, twenty-five miles away, in Lower Makefield.  So, to celebrate Pennsylvania’s tradition of working to advance freedom for all people, we commemorate the 323rd anniversary of the signing of this petition on April 29 of 1688, by reposting it in its entirety, from here.

This is to the monthly meeting hold at Rigert Warrells.

These are the reasons why we are against the traffick of men-body, as followeth:

Is there any that would be done or handled at this manner?  viz., to be sold or made a slave for all the time of his life?  How fearful & fainthearted are many on sea when they see a strange vassel – being afraid it should be a Turck, and they should be tacken, and sold for slaves into Turckey.  Now what is this better done, as Turcks doe?  yea, rather is it worse for them wch say they are Christians, for we hear that the most part of such Negers are brought heither against their will & consent and that many of them are stollen.

Now tho they are black, we can not conceive there is more liberty to have them slaves, as it is to have other white ones.  There is a saying that we shall doe to all men licke as we will be done ourselves; macking no difference of what generation, descent or Colour they are. and those who steal or robb men, and those who buy or purchase them, are they not alicke?  Here is liberty of conscience wch is right and reasonable; here ought to be likewise liberty of the body, except of evildoers, wch is an other case.  But to bring men hither, or to robb and sell them against their will, we stand against.  In Europe there are many oppressed for Conscience sacke; and here there are those oppressed wch are of a Black Colour.

and we who know that men must not comitt adultery, some doe comitt adultery in others, separating wifes from their housbands and giving them to others. and some sell the children of those poor Creatures to other men.

Ah ! doe consider well this things, you who doe it, if you would be done at this manner?  and if it is done according Christianity?  You surpass Holland and Germany in this thing.  This mackes an ill report in all those Countries of Europe, where they hear off, that the Quackers doe here handel men licke they handel there the Cattle.  and for that reason some have no mind or inclination to come hither.  And who shall maintaine this your cause, or plaid for it?  Truely we can not do so, except you shall inform us better hereoff, viz: that christians have liberty to practise this things.

Pray, what thing in the world can be done worse towards us, then if men should robb or steal us away, & sell us for slaves to strange Countries, separating housband from their wife and children. Being now this is not done at that manner we will be done at, therefore we contradict & are against this traffick of men body.

And we who profess that it is unlawfull to steal, must lickewise avoid to purchase such things as are stollen, but rather help to stop this robbing and stealing if possibel.  and such men ought to be delivered out of the hands of the Robbers, & made free as well as in Europe.  Then is Pensilvania to have a good report, in stead it hath now a bad one for this sacke in other Countries.  Especially whereas the Europeans are desirous to know in what manner the Quackers doe rule in their Province, & most of them doe loock upon us with an envious eye.  But if this is done well, what shall we say is done evill?

If once these slaves (wch they say are so wicked and stubbern men) should joint themselves, fight for their freedom and handel their masters & mastrisses, as they did handel them before; will these masters & mastrisses tacke the sword at hand and warr against these poor slaves, licke we are able to belive, some will not refuse to doe?  or have these Negers not as much right to fight for their freedom, as you have to keep them slaves?

Now consider well this thing, if it is good or bad? and in case you find it to be good to handel these blacks at that manner, we desire & require you hereby lovingly that you may informe us herein, which at this time never was done, viz., that Christians have such a liberty to do so. To the end we shall be satisfied in this point, & satisfie lickewise our good friends and acquaintances in our natif Country, to whose it is a terrour, or fairfull thing that men should be handeld so in Pensilvania.

This is from our meeting at Germantown, hold the 18 of the 2 month, 1688, to be delivered to the Monthly Meeting at Richard Warrels.

gerret hendericks
derick up de graeff
Francis daniell Pastorius
Abraham up den graef

Here in Pennsylvania, the first state to enact legislation to end slavery*; the first state to allow interracial marriage; and one of the many Northern states to resist the unconscionable Federal Fugitive Slave Acts, we don’t need ivory tower elitists in distant lands to tell us what is right or to give us permission to do it.  As William Penn noted,

“Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it.”

Tenthers, take heart…  As in 1688, today’s contest of ideas is being waged over tomorrow’s Liberty.  One generation’s radicals are another generation’s visionaries.

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

Article brought to you by Tenth Amendment Center.

Many Americans forget the role that states played during the American Revolution and in the formative years of the United States. And many North Carolinians forget the valuable role that our state played in that war and in constitutional thought. This memory loss has contributed greatly to chipping away at the federalist foundation of the American form of government.

We have an opportunity to revisit a crucial chapter of that history Tuesday, when North Carolina commemorates the 235th anniversary of the Halifax Resolves. With the adoption of the Resolves, North Carolina became the first colony to declare independence from the crown, nearly three months before the Continental Congress announced the Declaration of Independence in July 1776. The General Assembly will mark the anniversary by holding session in the Capitol Building.

Definitions are important for a proper historical understanding of the founding era. Let’s consider the Declaration of Independence — the 29 grievances against King George III listed by the American colonies. The words “State” or “States” are mentioned throughout, and the “united States of America” complained about the monarch’s abuse of power. The capitalization of states is important. Americans meant something different when using the word state then than they do nowadays.

Today, states act more like functionaries of the national government, and state legislatures fear losing national money and therefore implement national programs that legislators might otherwise reject. When the Founders used “State” in 1776 and in 1789, a state possessed more sovereignty that it does now, and it was more on par with England and France than with its counterparts such as Yorkshire in England or Brittany in France.

Americans also use “Congress” differently now, too. In the late 1700s, the word was understood to mean a meeting of delegates from sovereign states who voted on matters. This understanding derived from The Congress of Westphalia (1648), in which delegates from various sovereigns voted on a peace treaty and its provisions and thereby ended the Thirty Years War and the Eighty Years War in Europe.

I hear federalism (or states’ rights) mentioned now on radio and television talk shows more than I’ve heard in some time. That’s good. But in an age when even conservatives have adopted a modern, political mind-set and believe all answers originate in Washington, D.C., history needs to be taught now — maybe more than ever. Because as the prolific, conservative political thinker Russell Kirk reminds readers in his The Conservative Constitution, all political terms have a history, and even good statesmen can commit egregious errors if they are ignorant of those histories.

The Declaration of Independence is an important document, to be sure. But Americans view it many times with an anachronistic lens that distorts the past and obscures the documents’ federalist underpinnings. Americans, many of them at least, are unaware that many states basically had declared their independence from Great Britain before the colonies did collectively. In North Carolina, The Fourth Provincial Congress empowered delegates to vote for independence with delegates from other states. Virginia, to name another example, acted similarly a couple months later.

It was a great concern for North Carolinians, and colonists elsewhere, to know that their state approved such an action, and many would never have approved the Declaration of Independence without the Halifax Resolves adoption.

The last paragraph of the Halifax Resolves reads: “Resolved that the delegates for this Colony in the Continental Congress be impowered to concur with the delegates of the other Colonies in declaring Independency, and forming foreign Alliances, reserving to this Colony the Sole, and Exclusive right of forming a Constitution and Laws for this Colony, and of appointing delegates from time to time (under the direction of a general Representation thereof) to meet the delegates of the other Colonies for such purposes as shall be hereafter pointed out.”

The Declaration of Independence was not written in a top-down approach in which national leaders had an idea, expressed it, and state leaders followed suit. It was an approach that came from the bottom-up — from the colonies, from the states.

First, there was the Halifax Resolves. Then there was the Declaration of Independence.

Originally published in CarolinaJournal.com – reposted here with permission of the author.

Troy Kickler [send him email] has been Director of the North Carolina History Project since August 2005. He holds an M.S. in Social Studies Education from North Carolina A&T State University and a Ph.D. in history from the University of Tennessee. His specialty areas are nineteenth-century U.S., Civil War and Reconstruction, African American, and religious history.

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EDITOR’S NOTE: Kevin Gutzman will be a featured speaker at Nullify Now! Austin. Get tickets here or by calling 888-71-TICKETS

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Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the 21^st Century (Washington, DC: Regnery Publishing, 2010), 309 pp., Appendix.

Thomas E. Woods, Jr., author of such smashes as Meltdown, The Politically Incorrect Guide to American History, and The Church and the Market, has done it again. After reconciling Catholic teaching and free-market economics and after explaining how violation of free-market principles brought on the current depression, Woods here takes on the central issue of our day: what to do about out-of-control government.

Under today’s constitutional law, the “Federal” (really now national) Government can do anything it wants. Nancy Pelosi literally laughs at the implication that it cannot. For anyone who knows history and loves liberty, this is a worrisome situation.

What to do?

Woods’s answer is to dust off the Jeffersonian tradition of nullification. Nullification lays out the argument for nullification’s constitutionality, describes historic and contemporary instances in which the doctrine has been and is being employed, and advocates that it be used more widely today. Finally, in a very useful appendix, Woods provides some of the classic nullification documents from days gone by. The appendix serves both to arm the reader with pro-nullification arguments and to illustrate the variety of circumstances to which it has been applied.

In his first chapter, “The Return of a Forbidden Idea,” Woods describes the situation we now face as “the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government.” (p. 19) By reference to the Bring the Guard Home movement, Firearms Freedom Acts, and medical marijuana acts that have been considered and/or adopted in literally dozens of states these past few years, Woods shows that there is an impulse afoot in America to restore the constitutional system. Maybe elite academics have agreed among themselves that the Constitution gets in the way of their bottomless urge to do good, but the people never agreed. They are beginning to bestir themselves from a long constitutional slumber.

Nullification, Woods shows in his second chapter, is the “rightful remedy” to the illness of tyranny. And that is the right word to denote the Federal Government in the current situation: “tyranny,” the ancient Greeks’ word for unconstitutional rule. Note that a tyrant need not be malevolent, he merely must rule unconstitutionally — as the Federal Government does today.

Wordsmith Woods calls the question of the relationship between the government’s behavior and the Constitution’s allocation of powers “the Great Unmentionable.” (p. 21) Federal and state officials alike commonly ignore the question of the Constitution. It is the great and powerful Oz, to be feared despite its powerlessness.

Yet, resignation in the face of usurpation is not the American tradition. Rather, the people who made the Revolution insisted that their colonial legislatures had the primary role in their self-governance, and that the British government shared governmental functions only for the colonists’ convenience. This view was most clearly developed in Virginia, where Richard Bland, Thomson Mason, Landon Carter, and finally Thomas Jefferson elaborated it in the 1760s and 1770s.

This Virginia doctrine, which we can join Woods in calling “Jeffersonian,” did not change with the coming of independence, the Articles of Confederation, or the US Constitution. Those people, and their counterparts in other states, insisted that the Articles affirm that their state retained its sovereignty. They also wrung from nationalists in the Philadelphia Convention a document that retained the federal — not national — nature of the government on which they had long insisted.

That is why in state after state, leading Framers and Ratifiers such as the governors of North Carolina and Virginia and the two chief authors of The Federalist promised that the new government would have only the powers “expressly delegated.” It is also why the Virginia General Assembly protested the adoption of laws that Congress had not been expressly delegated power to adopt from the very first Congress.

The first decade under the current constitution saw one party, the Federalist Party, attempt to remake the US Government into a national government. Like John McCain and Russ Feingold today, John Adams and his allies in Congress wanted to regulate citizens’ criticism of federal officials. In response, Jefferson and his Republican allies promulgated legislative resolutions, the Virginia and Kentucky Resolutions of 1798, setting out their understanding of the limited nature of the delegations of power the states had made in creating the Federal Government. In case the new government tried to grab more power, those two states said, the states “have the right, and are in duty bound, to interpose.” Kentucky, in answering criticisms of its first set of resolutions, adopted a second set the next year saying that in case of unconstitutional and dangerous federal policy, “a nullification … is the rightful remedy.”

The great contribution of Nullification is to show how the Jeffersonian reading of the Constitution resonates today. The short of it, as Woods explains in Chapter 3, “American History and the Spirit of ’98,” is that this Jeffersonian reading of the Constitution was long the majority position in American politics. In fact, from the Virginia and Kentucky Resolutions’ promulgation in 1798 to Franklin Roosevelt’s decision to renege on his 1932 campaign pledges of limited government, most federal elections were won by parties standing for the Jeffersonian view.

Woods is at his acerbic best in describing the campaign of distortion and slander Establishment figures now maintain against the idea of nullification. The distortion lies in their inaccurate insistence that Jefferson and Company invented nullification in 1798 in response to specific circumstances, when in fact the resolutions of 1798 were merely the latest iteration of a long-standing tradition; the slander lies in their attempt to tie all invocations of the right of nullification to the defense of slavery.

Not only was slavery not the issue in 1798, but it was not the issue when nullification was employed in 1809, or when it was brought up in the 1810s, or when it was used in the 1820s, or when it was invoked in the 1830s. Slavery was the issue when states were nullifying in the 1850s, but the nullification was undertaken on behalf of supposed fugitive slaves by abolitionists in those cases. Woods does a masterful job in explaining how nullification has been used in behalf of free elections, free speech, and freedom of the press (1798-1801), against conscription (during the War of 1812), in behalf of free trade (in the 1820s and ’30s), and in favor of due process for blacks.

When Woods uses the word “nullification,” he does not necessarily have in mind formal legislative resistance to federal policy in the mode of the Carolina Nullifiers of 1832-33. Rather, he is thinking of a range of less confrontational measures, from simple refusal by state authorities to respect federal edicts, through adoption of state laws in conflict with federal policy (such as medical marijuana laws), to adoption of state laws claiming control over areas of policymaking that Congress has long since arrogated to itself (such as Firearms Freedom Acts).

As he notes in his last chapter, “Nullification Today,” Woods realizes that these ideas will jar people who are trained in “constitutional law.” After all, he says, that “law” takes as its starting point the assumptions that Congress can do essentially whatever it wants and that state Executive and Judicial departments are more or less subordinate to their federal counterparts. Yet, he again reminds, Thomas Jefferson, James Madison, and a host of other eminent philosopher-statesmen of the Revolution and Early Republic never understood things that way.

So far as they were concerned, “constitutional law” that conflicted with the people’s understanding at the time they ratified the Constitution was not law at all. One did not have to wait for a court ruling to ignore it, because for all intents and purposes it did not exist.

How could that be? Remember: the Revolution was fought for home rule through legislative elections. Only the powers “expressly delegated” to the new-fangled Federal Government made exceptions to that rule. Beyond that, Congress could not go, and if it tried, its effort was unavailing.

For over a century, Woods says, the Federal Government has grown and grown. Electing new officials has not checked that growth, even when those officials were authentically dedicated to reining in the government’s growth. To those who might think of nullification as a risky strategy, Woods’s response is that nothing else is working. Nullification is a tool in the bag of those who want to dam the river of government expansion. It has been used before, and to good ends. It is being used now, for minor purposes. Woods hopes to see it actually implemented in states that understand Obamacare and other such federal initiatives to be unconstitutional. To judge by what is coming out of legislatures these days, perhaps he will get his wish. As he puts it, “We have been helpless spectators long enough.” (p. 143)

Copyright © 2010 Campaign for Liberty.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.

Article brought to you by Tenth Amendment Center.

Slavery had been prohibited in Wisconsin under the 1787 Northwest Ordinance, according to which our state and territory were formed.  However in 1850 the Federal Government passed the Fugitive Slave Act which forced citizens to return any captured slaves to their owners.  This caused a great stir within the growing abolitionist movement who felt they were being forced to comply with a law to which they were morally opposed.

Between 1842-1861 over a hundred slaves appear to have been helped to escape to Canada by Wisconsin citizens.  In 1843 Lyman Goodnow helped the first slave escape from Wisconsin by driving Caroline Quarlls in 1842.  Caroline was one of the first recorded to escape by way of the underground railroad.  She escaped from St. Louis on the 4th of July and by way of the Mississippi arrived in Alton, Illinois.  From there she traveled to Waukesha by way of stage and ultimately she was driven by a Waukesha man around Chicago, through Indiana and across Michigan, where she escaped from Detroit into Canada.  These were changing times in the nation.  The Abolitionist movement was growing and in 1851 Harriet Beecher Stowe gained fame by publishing “Uncle Tom’s Cabin”.

In 1852 Joshua Glover also escaped his owner in St. Louis, Missouri and made his way through the underground railroad and sought asylum in Racine in the early part of 1854, where he found work in a mill.  A $200 reward was offered and published in the St. Louis Missouri Republican (newspaper); May 27, 1852, page 3, column 7, which appears to the right.  Joshua’s Missouri master, B. S. Garland, learned of his whereabouts, procured a US District Court Order and proceeded with two Marshall’s to Glover’s shanty.  Accounts differ on the events of Joshua’s capture.  One account says that he was caught playing cards with another black man.  Regardless, he was beaten severely with a club and had a pistol pointed at his head and was handcuffed.  In the words of Sherman M. Booth, who we will get to shortly, Glover ”was knocked down and handcuffed, dumped mangled and bleeding into a democrat wagon, and with a marshal’s foot on his neck taken to Milwaukee and thrust into the county jail.”

When word of this reached the public, there was immense interest.  Hundreds of people arrived by boat from Racine and other members of the abolitionist movement crowded around the courthouse in Milwaukee.  Reports have Sherman M. Booth, the editor of The Free Democrat Garland riding up and down the street on a white horse proclaiming to the crowds, “Freemen, to the rescue!”  Mr. Booth later denied that he made that statement.  He did admit to saying the following, “All freemen who are opposed to being made slaves or slave-catchers turn out to a meeting in the courthouse square at 2 o’clock!”

This occurred on a Friday and government authorities refused to take any action until Monday.  Joshua Glover was left beaten and bleeding in his cell.  There was intense pressure from the crowds and cries for that a writ of habeas corpus and a trial by jury be afforded to Joshua Glover.  A local judge issued a writ, but federal officials refused to recognize it’s validity.  The crowd insisted that they be given the keys to the jail and were refused.  This led to a group of approximately 20 men battering down the doors with a large piece of timber.  They freed Joshua from his cell.  Bringing him outside, they were ringed by approximately 1000 protesters.  they went from Wisconsin street to East Water street, and down East Water street to what was then called Walkers Point bridge.  When they arrived there, John A. Messenger, a Democrat asked what was going on.  Upon explanation, he took Joshua into his buggy and with federal Marshall’s and slave hunters in pursuit, he took back roads and changed course many times, heading westward until they reached Waukesha.  Messenger was deathly afraid of being recognized during the escape.  He was a staunch Democrat and knowingly had violated the fugitive slave act.  He took Joshua to the home of W. D. Bacon who was an Abolitionist, he went direct to his house, which is where the Spring City Hotel is now located, in the village of Waukesha.  Joshua stayed there until he could be transported to Racine by Waukesha editor Chauncey Olin who recalls the events in his memoir, and eventually to Canada where he lived as a free man until passing in June of 1888 in Ontario, Canada.

While it was indeed a victory for Joshua to be freed and liberated to Canada, the story does not end here for the people who came to his aid.  Indeed the legal struggles were just beginning.  There was a great deal of litigation to follow.  The sheriff of Racine county arrested B. S. Garland as well as those who had aided in the capture of Joshua Glover on the charge of assault.  Garland obtained his release on a writ of habeas corpus during the time that Joshua was en route to Canada.

The federal authorities charged Booth with assisting Glover’s escape. Booth was arrested and a grand jury found a bill of indictment against him and two others. He appealed to the Wisconsin Supreme court for a writ of habeas corpus.  Booth was released on bail but two months later, at his own request, he was delivered to the U.S. Marshal. Booth’s surrender was calculated to bring a test case in the state courts challenging the constitutionality of the fugitive slave law. On the day after the surrender, Booth’s attorney, Byron Paine (later a justice of the Wisconsin Supreme Court), successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus.

The learned judges read long opinions declaring the Fugitive Slave law of 1850 unconstitutional.   In the meantime, U.S. Attorney General Kushing had decided to appeal the Wisconsin decisions to the U.S. Supreme Court. Two writs of error were subsequently issued by U.S. Supreme Court Chief Justice Roger Taney directing the clerk of the Wisconsin Supreme Court to send the records in both the 1854 case (Ableman v. Booth).

Angered by that opinion and unwilling to accept the logic of Chief Justice Taney who had written the infamous Dred Scott case, the Wisconsin Legislature passed a series of resolutions denouncing the actions of the U.S. Supreme Court as “an arbitrary act of power … without authority, void and of no force,” and urging “positive defiance” by the states as the “rightful remedy.”

That is our history Wisconsin.  We have long supported the Tenth Amendment and as it saved those who rescued Joshua Glover it can save us again today. 

I urge you to support your local Tenth Amendment Center and join us in a common cause of restoring our liberties and curtailing the overreach of the federal government.

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

Article brought to you by Tenth Amendment Center.

EDITOR’S NOTE: Nullify Now! presents a special tribute to human freedom with the story of Joshua Glover. Learn about resistance to slavery in one of history’s greatest acts of nullification – and how it applies to events today – in Cincinnati, Ohio on March 5, 2011 – get tickets and information here – or by calling 888-71-TICKETS

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It was all About States’ Rights – Northern States’ Rights

The Underground Railroad was a metaphor. Yet many textbooks treat it as an official name for a secret network that once helped escaping slaves. The more literal-minded students end up questioning whether these fixed escape routes were actually under the ground. But the phrase “Underground Railroad” is better understood as a rhetorical device that compared unlike things for the purpose of illustration. In this case, the metaphor described an array of people connected mainly by their intense desire to help other people escape from slavery. Understanding the history of the phrase changes its meaning in profound ways.

Even to begin a lesson by examining the two words “underground” and “railroad” helps provide a tighter chronological framework than usual with this topic. There could be no “underground railroad” until actual railroads became familiar to the American public–in other words, during the 1830s and 1840s. There had certainly been slave escapes before that period, but they were not described by any kind of railroad moniker. The phrase also highlights a specific geographic orientation. Antebellum railroads existed primarily in the North–home to about 70 percent of the nation’s 30,000 miles of track by 1860. Slaves fled in every direction of the compass, but the metaphor packed its greatest wallop in those communities closest to the nation’s whistle-stops.

Looking into the phrase “Underground Railroad” also suggests two essential questions: who coined the metaphor? And why would they want to compare and inextricably link a wide-ranging effort to support runaway slaves with an organized network of secret railroads?

The answers can be found in the abolitionist movement. Abolitionists, or those who agitated for the immediate destruction of slavery, wanted to publicize, and perhaps even exaggerate, the number of slave escapes and the extent of the network that existed to support those fugitives. According to the pioneering work of historian Larry Gara, abolitionist newspapers and orators were the ones who first used the term “Underground Railroad” during the early 1840s, and they did so to taunt slaveholders (1). To some participants this seemed a dangerous game. Frederick Douglass, for instance, claimed to be appalled. “I have never approved of the very public manner in which some of our western friends have conducted what they call the underground railroad,” he wrote in his Narrative in 1845, warning that “by their open declarations” these mostly Ohio-based (“western”) abolitionists were creating an “upperground railroad”(2).

Publicity about escapes and open defiance of federal law only spread in the years that followed, especially after the controversial Fugitive Slave Act of 1850. Anxious fugitives and their allies now fought back with greater ferocity. Douglass himself became more militant. In September 1851, he helped a former slave named William Parker escape to Canada after Parker had spearheaded a resistance in Christiana, Pennsylvania that left a Maryland slaveholder dead and federal authorities in disarray. The next year in a fiery speech at Pittsburgh, the famous orator stepped up the rhetorical attack, vowing, “The only way to make the Fugitive Slave Law a dead letter is to make half a dozen or more dead kidnappers” (3). This level of defiance was not uncommon in the antislavery North and soon imperiled both federal statute and national union. Between 1850 and 1861, there were only about 350 fugitive slave cases prosecuted under the notoriously tough law, and none in the abolitionist-friendly New England states after 1854 (4). White Southerners complained bitterly while abolitionists grew more emboldened.

Yet students often seem to imagine runaway slaves cowering in the shadows while ingenious “conductors” and “stationmasters” devised elaborate secret hiding places and coded messages to help spirit fugitives to freedom. They make few distinctions between North and South, often imagining that slave patrollers and their barking dogs chased terrified runaways from Mississippi to Maine. Instead, the Underground Railroad deserves to be explained in terms of sectional differences and the coming of the Civil War.

One way to grasp the Underground Railroad in its full political complexity is to look closely at the rise of abolitionism and the spread of free black vigilance committees during the 1830s. Nineteenth-century American communities employed extra-legal “vigilance” groups whenever they felt threatened. During the mid-1830s, free black residents first in New York and then across other Northern cities began organizing vigilant associations to help them guard against kidnappers. Almost immediately, however, these groups extended their protective services to runaway slaves. They also soon allied themselves with the new abolitionist organizations, such as William Lloyd Garrison’s Anti-Slavery Society. The most active vigilance committees were in Boston, Detroit, New York, and Philadelphia led by now largely forgotten figures such as Lewis Hayden, George DeBaptiste, David Ruggles, and William Still (5). Black men typically dominated these groups, but membership also included whites, such as some surprisingly feisty Quakers, and at least a few women. These vigilance groups constituted the organized core of what soon became known as the Underground Railroad. Smaller communities organized too, but did not necessarily invoke the “vigilance” label, nor integrate as easily across racial, religious and gender lines. Nonetheless, during the 1840s when William Parker formed a “mutual protection” society in Lancaster County, Pennsylvania, or when John Brown created his League of Gileadites in Springfield, Massachusetts, they emulated this vigilance model.

These committees functioned more or less like committees anywhere—electing officers, holding meetings, keeping records, and raising funds. They guarded their secrets, but these were not covert operatives in the manner of the French Resistance. In New York, the vigilance committee published an annual report. Detroit vigilance agents filled newspaper columns with reports about their monthly traffic. Several committees released the addresses of their officers. One enterprising figure circulated a business card that read, “Underground Railroad Agent” (6). Even sensitive material often got recorded somewhere. A surprising amount of this secret evidence is also available for classroom use. One can explore letters detailing Harriet Tubman’s comings and goings, and even a reimbursement request for her worn-out shoes by using William Still’s The Underground Railroad (1872), available online in a dozen different places, and which presents the fascinating materials he collected as head of the Philadelphia Vigilance Committee. Anyone curious about how much it cost to help runaways can access the site where social studies teacher Dean Eastman and his students at Beverly High School have transcribed and posted the account books of the Boston vigilance committee. And the list of accessible Underground Railroad material grows steadily (7).

But how did these Northern vigilance groups get away with such impudence? How could they publicize their existence and risk imprisonment by keeping records that detailed illegal activities? The answer helps move the story into the 1840s and 1850s and offers a fresh way to for teachers to explore the legal and political history of the sectional crisis with students. Those aiding fugitives often benefited from the protection of state personal liberty laws and from a general reluctance across the North to encourage federal intervention or reward Southern power. In other words, it was all about states’ rights—Northern states’ rights. As early as the 1820s, Northern states led by Pennsylvania had been experimenting with personal liberty or anti-kidnapping statutes designed to protect free black residents from kidnapping, but which also had the effect of frustrating enforcement of federal fugitive slave laws (1793 and 1850). In two landmark cases –Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859)—the Supreme Court threw out these Northern personal liberty protections as unconstitutional.

Students accustomed to equating states’ rights with South Carolina may be stunned to learn that it was the Wisconsin Supreme Court asserting the nullification doctrine in the mid-1850s. They may also be shocked to discover that a federal jury in Philadelphia had acquitted the lead defendant in the Christiana treason trial within about fifteen minutes. These Northern legislatures and juries were, for the most part, indifferent to black civil rights, but they were quite adamant about asserting their own states’ rights during the years before the Civil War. This was the popular sentiment exploited by Northern vigilance committees that helped sustain their controversial work on behalf of fugitives.

That is also why practically none of the Underground Railroad agents in the North experienced arrest, conviction, or physical violence. No prominent Underground Railroad operative ever got killed or spent significant time in jail for helping fugitives once they crossed the Mason-Dixon Line or the Ohio River. Instead, it was agents operating across the South who endured the notorious late-night arrests, long jail sentences, torture, and sometimes even lynching that made the underground work so dangerous. In 1844, for example, a federal marshal in Florida ordered the branding of Jonathan Walker, a sea captain who had been convicted of smuggling runaways, with the mark “S.S.” (“slave-stealer”) on his hand. That kind of barbaric punishment simply did not happen in the North.

What did happen, however, was growing rhetorical violence. The war of words spread. Threats escalated. Metaphors hardened. The results then shaped the responses the led to war. By reading and analyzing the various Southern secession documents from the winter of 1860-61, one will find that nearly all invoke the crisis over fugitives (8). The battle over fugitives and those who aided them was a primary instigator for the national conflict over slavery. Years afterward, Frederick Douglass dismissed the impact of the Underground Railroad in terms of the larger fight against slavery, comparing it to “an attempt to bail out the ocean with a teaspoon” (9). But Douglass had always been cool to the public value of the metaphor. Measured in words, however —through the antebellum newspaper articles, sermons, speeches, and resolutions generated by the crisis over fugitives—the “Underground Railroad” proved to be quite literally a metaphor that helped launch the Civil War.

Matthew Pinsker is Associate Professor of History and Pohanka Chair in American Civil War History at Dickinson College. He has written two books about Abraham Lincoln and currently is working on a book about the Underground Railroad.

NOTE: This article was originally published in the December, 2010 issue of History Now from the Gilder Lerhman Institute of American History. It’s re-published here with permission of the author and History Now.

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(1) Larry Gara, The Liberty Line: The Legend of the Underground Railroad (1961; Lexington: University Press of Kentucky, 1996), 143-4.
(2) Frederick Douglass, Narrative of the Life of Frederick Douglass: An American Slave (Boston: Anti-Slavery Office, 1845), 101 (http://www.docsouth.unc.edu/neh/douglass/douglass.html). 
(3) Frederick Douglass, “The Fugitive Slave Law: Speech to the National Free Soil Convention in Pittsburgh,” August 11, 1852 (http://www.lib.rochester.edu/index.cfm?PAGE=4385). 
(4) See the appendix in Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law: 1850-1860 (New York: W.W. Norton, 1970), 199-207.
(5) Out of these four notable black leaders, only David Ruggles has an adult biography available in print –and it was published this year. See Graham Russell Gao Hodges, David Ruggles: A Radical Black Abolitionist and the Underground Railroad in New York City (Chapel Hill: University of North Carolina Press, 2010).
(6) Jermain Loguen of Syracuse, New York. See Fergus M. Bordewich, Bound for Canaan: The Underground Railroad and the War for the Soul of America (New York: HarperCollins, 2005), 410.
(7) For these materials and others, visit the Additional Resources Page (below).
(8) See secession documents online at The Avalon Project from Yale Law School
(http://avalon.law.yale.edu/subject_menus/csapage.asp).
(9) Frederick Douglass, Life and Times of Frederick Douglass (Hartford, CT: Park Publishing, 1881), 272 (http://docsouth.unc.edu/neh/douglasslife/douglass.html).

Article brought to you by Tenth Amendment Center.

In January, hotair.com reported on Idaho and other states introducing laws to nullify Obamacare.   Then, Phineas at Sister Toldjah promoted his hotair comments into a blog post, Nullification: a bad idea.  I’ve been debating in comments there, and now will follow suit, also promoting my own comments into a blog post.  I would like to make note of how courteous Phineas has been in the comments.  It is nice to see that even on the web, people can disagree respectfully.

In the post and its comments, many of the usual claims are raised.  Namely,

• Nullification would create a patchwork of laws, rendering national governance impossible.
• Nullification was a factor in the lead-up to the Civil War.
• The Constitution grants no authority for the states to nullify.
• The Civil War proved that nullification is not an option.
• The supremacy clause means that the federal government is superior to the state government.

Some of these lines of argument are so common that I have decided to begin a Tenth Amendment FAQ to have a place to refer people to find the rebuttal for all of the standard arguments.  This is a work in progress, so if you would like to contribute content for questions and/or answers, please use the contact form to e-mail us your suggestions.  Phineas also made the more unusual argument that when Jefferson and Madison penned the Kentucky and Virginia Resolutions, fourteen other states declined to support them in their opposition to the Alien and Sedition acts.

So here are my comments and some other material to provide context.  Please go read the whole article and the other comments at Sister Toldjah.  My first two comments were in response to these points from Phineas’ article.

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

AND

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.)

Those points led me to submit the following comments…

Steve Palmer says:

January 22, 2011 at 11:14 pm

I don’t comment at hotair because they require registration, but here’s an article I wrote to address the concern about nullification leading to a patchwork of regulation – LINK.  In short, I think that over time, nullification leads to a consensus interpretation of the constitution instead of a dictatorial one.  Please follow the link for a more detailed explanation.

AND

Steve Palmer says:

January 23, 2011 at 12:00 am

Sorry to follow myself, but while rereading your article, I became intrigued by another point.  Please clarify… are you actually saying that the northern states should not have nullified the federal fugitive slave acts in the 1800s?  If so, I’d really like you to elaborate on that line of reasoning!

I would argue that the “mischief”, as you put it, was the fugitive slave acts (and slavery, itself), not the nullification thereof.  I also have an article on that subject here – LINK

It is important to understand that the nullifiers with regards to slavery were the northern states, not the southern ones.  I am convinced that the northern states were exactly right to nullify the abominable federal fugitive slave acts.  I am very curious to hear your line of reasoning to the contrary.

To my question about whether the northern states should have refrained from nullifying the federal fugitve slave acts, Phineas responded,

January 23, 2011 at 6:36 pm

No, I was just looking for an example of the problems that can be caused by nullification, and that one came to mind.  Probably not the best one to use.

I followed up with this comment,

Steve Palmer says:

January 24, 2011 at 9:49 pm

So it was OK for the states to nullify the Fugitive Slave Act because that law was tyrannical, but it’s not OK for the states to nullify Obamacare because… ? Slavery=bad, death panels=”live with it”?

(quote from original post)

“To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.”

In addition to my link from yesterday, here’s another line of argument as to why a “crazy-quilt of federal law” might not be such a bad thing. Even in the short run – from young americans for liberty – LINK.  Anyway, I thought conservatives supported federalism?

In the long run, the states and the federal government would eventually negotiate and reach consensus over their disputes… the important ones, anyway.  We would have 50 states negotiating and competing with the supreme court instead of 5 unelected dictators deciding for 300 million people.

No one is saying that states can run around willy-nilly, nullifying any law they feel like, but when a law is unconstitutional, the states have no obligation to enforce it.  Even the Supreme Court agreed with that fact in Prigg vs Pennsylvania, 1842.

As to your argument about fourteen states disagreeing with Madison and Jefferson, the example is incomplete.  You are correct insofar as the states were always opportunistic in their support of nullification.

For example, Pennsylvania opposed it for the Alien & Sedition acts in 1798, but supported it against the central bank in 1811 and against slavery from the 1820s until the civil war.

I think if you read Woods’ book, Nullification (with an open mind), you might be persuaded to reconsider your position.

Which drew this response from Phineas,

January 24, 2011 at 10:22 pm

Hi Steve,

I haven’t read Woods’ book.  I should, since it’s an interesting topic.  In fact, I’d be interested to read his opinion of this quote from Madison, himself, denying that nullification resolutions have any force of law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge.  The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.  The expositions of the judiciary, on the other hand, are carried into immediate effect by force.  The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration?  What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens.  This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

That’s quoted in a post by Law Professor Randy Barnett, author of the Bill of Federalism and no slouch on state’s rights.  Madison wrote those words in defense of the KV Resolutions, which had been rejected by all the other states.  Now, if he said these have no force of law (indeed, he supports your point about building consensus), then I would need a lot to convince me that nullification (as opposed to the rendering of an opinion via a resolution) is among one of the reserved powers.

My response,

Steve Palmer says:

January 24, 2011 at 10:57 pm

Hi Phineas,

This appears to have been Woods’ reply to that post from Professor Barnett – http://www.lewrockwell.com/woods/woods147.html

And this seems to be the relevant paragraph,

Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution.  Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void.  Nullification merely disallowed the enforcement of a nonexistent constitutionality.  What could be controversial about that?

Here is Madison’s report, which both of them mention – http://www.constitution.org/rf/vr_1799.htm

I’m surprised Woods’ didn’t mention this, but I just took a quick look.  Barnett was apparently careless in selecting his quote.  Madison’s report is organized in sections.  Barnett’s quote is near the end of the document, in a section dedicated to the last two of the Virginia Resolutions. Those resolutions were the ones asking the other states to pass similar resolutions and asking the governor to take the topic up with other governors. Obviously, Virginia’s resolutions on those topics cannot take the form of law when the resolutions’ objects reside in other states.

I didn’t want to get carried away, so left this out of the discussion at Sister Toldjah, but I also thought this excerpt from the Woods link above was a particularly compelling response to the Barnett article.

Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:

I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.

Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government.  Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.

Who’s wasting their time?

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

Article brought to you by Tenth Amendment Center.

photo credit: Randy Son of Robert

While many people assume that the thirteen colonies which declared independence from Great Britain did so jointly as part of a newly-formed (or -forming) nation, this is incorrect. This belief is not only erroneous, but also dangerous.

If one assumes that a conglomeration of the colonies secured independence and international recognition as a single unit, then this warped view of history would lend support for seeing our country today as similar in nature: a singular entity, “The United States.”

History tells a different story. For example, an 1840 history book written by Abel P. Upshur notes the following:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections, no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever.

Prior to the creation and ratification of the U.S. Constitution, the states were separate countries—sovereign political bodies with no superior authority. This is evidenced, among myriad other sources, in the Declaration of Independence, where we read of the King’s “establishment of an absolute Tyranny over these States” as well as the colonies being affirmed as “Free and Independent States”. The Treaty of Paris that ended (most of) the conflict between the Crown and the states recognized each state individually, by name, as opposed to “The United States”. Indeed, the Declaration references “the united States of America” with a lowercase ‘u’, indicating that the several states were united in objective but separate in status.

After successfully seceding from Great Britain, the several states voluntarily entered into a political association under the Articles of Confederation. Fiercely jealous of their newly-secured sovereign powers, the states insisted and agreed upon veto power over any action made by the confederate government that exceeded its express authority.

One of the provisions in the Articles stated, for example, that “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.” While the Articles certainly had their flaws, they nevertheless recognized and operated upon the understanding that each of the states were voluntary participants in the “Perpetual Union” created by the document.

When several of the states later decided to secede from this “Perpetual Union” created by the Articles in order to accede to the new government (a “more perfect Union”) under the U.S. Constitution, they did so independently through ratifying conventions, and over a span of several years. Their accession to and affiliation with this new government was still voluntary, and their sovereignty still recognized, with federal supremacy pertaining only to the specific, limited, enumerated powers which had been delegated to the new government.

In order to further emphasize the fact that the Constitution empowered the federal government only with the powers contained in the document, the ninth and tenth amendments were passed. These specifically state that the powers and rights nowhere delegated to the federal government in the Constitution, nor enumerated therein, are reserved to the states and people. In other words, in all matters not relating directly to those delegated by the states to the federal government, the states retain their sovereignty and the people their rights.

While on paper this arrangement appears rock solid, an abundance of examples exist demonstrating either the inability or the unwillingness of the federal government to restrain itself accordingly. Despite those oft-referenced “checks and balances,” the states have, over two centuries, seen a steady and severe erosion of their sovereign powers. Thomas Jefferson warned of this trend long ago:

When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.

So much power has been arrogated to the federal government that its title is now commonly written with a capital “U”, as in “The United States of America,” singular.

But despite its capitalization and therefore increased prominence in the title of the country, a quick peek underneath the surface reveals a political climate in which unity is difficult to actually find. The easiest way to observe disunity, of course, is to analyze a circumstance in which one state objects with another. It should be noted, however, that unity can be said to exist in regards to all powers delegated to the federal government within the Constitution; having previously agreed to subject themselves to the federal government on certain issues, one might say that they are then united in accordance with whatever decisions are made in regards to those issues.

On all other issues, though, no such agreement has been made, let alone unity established. When the federal government passes an unconstitutional law, a variety of responses can be found amongst the several states. Some might object primarily on principle, opposing the abuse of authority that was not delegated. Other states, whose citizens like the law, may not show any concern for its unconstitutionality. Others may justify an unconstitutional law with all sorts of intellectual gymnastics, preferring the new law to the contrary. And other states may object because the unconstitutional law’s effects are keenly felt amongst its populace.

The latter example can be found in the case of Massachusetts, one of the New England states that was hit hardest by an 1807 embargo, with its supplementary laws enacted in succeeding months, imposed by the federal government which prohibited American ships from departing to any foreign port, anywhere in the world. A federal district court ruling the following year, United States v. The William, ruled the embargo constitutional, but Massachusetts disagreed. Their legislature, in both houses, declared it to be “in many particulars, unjust, oppressive, and unconstitutional.” In an effort to help its citizens “find protection against outrage and injustice in the strong arm of the State government,” the legislature affirmed that the embargo was “not legally binding on the citizens of this State.”

While the effects of this embargo could be felt around the country, some states with strong manufacturing bases benefitted, as a termination of the influx of foreign goods sent Americans looking domestically of necessity. They, along with others whose hostility to the British was enough to rally support for such an embargo, praised the law. Others, like Massachusetts, openly defied the federal government, and in other cases, their citizens engaged in smuggling or civil disobedience to make the embargo an utter failure.

“Why should not Massachusetts take the same stand, when she thinks herself about to be destroyed?” asked a New York congressman at the time. Another legislator from Connecticut rhetorically asked: “If any State Legislature had believed the Act to be unconstitutional, would it not have been their duty not to comply? … I consider that the state legislatures, whose members are sworn to support the Constitution, may refuse assistance, aid, or cooperation as to an Act of Congress which they sincerely believe to be unconstitutional.”

Due to the widespread resistance amongst several states, the embargo failed and was later repealed. Rhode Island’s objections summarize the opposition of many of the states which felt a duty “to interpose for the purpose of protecting [the people of their respective state] from the ruinous inflictions of usurped and unconstitutional power.”

State-led opposition to unconstitutional federal mandates, however, do not always enjoy such broad support. A decade earlier, when Jefferson and Madison penned the Virginia and Kentucky Resolutions, the other states found no problem with the Alien and Sedition Acts to which the aforementioned states objected. In such cases, what is a state to do?

The post-”Civil War” style of “Union” suggests that the federal government is supreme, and states are duty-bound to comply with the mandates it produces. But a staggering list of examples demonstrate that, for a state concerned with retaining its sovereignty, there are numerous other opportunities for resistance and recourse that have been and can be employed. Court challenges are a common method, but have a large achilles heel; relying upon one branch of the federal government to overturn the actions of another branch is something which might sound okay on paper, but has too infrequently succeeded. Jefferson knew the danger in deferring all such decisions to the courts:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Other, more fruitful and proper avenues exist for opposition, such as interposition and nullification. Interposition could best be summarized by Connecticut governor Jonathan Trumbull, who convened a special session of his state’s legislature in 1809 to deal with the embargo mentioned previously. He said:

Despairing of substantial relief from any other quarter, the people are now looking with anxious solicitude and hope, to the wisdom and direction of the Legislature of their own choice [their state legislature] ; and seem confident that some mode may be devised to remove the pressure under which they are at present suffering. To your collected wisdom and prudence they submit the task. And may it not be hoped, that, with our united efforts under a temperate, discreet and firm consideration of our situation and circumstances, we may be able by the influence of divine aid, to fulfil the just and reasonable expectations of our fellow citizens? Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.

Interposition is an official action taken by a state government to publicly question the constitutionality of a federal law. The state government affirms its sovereignty and states its intent to protect its citizens from unnecessary or unlawful mandates. The Virginia and Kentucky Resolutions fall into this category, being vocal, official protests to an unconstitutional policy. In addition to simply stating an objection, interposing actions often declare that if no resolution is to be found within a certain time frame, the law will be nullified.

Nullification can be viewed as the next step in and escalation of opposition towards an unconstitutional federal law. Thomas Jefferson regarded it as “the rightful remedy” to an encroaching federal government. It is, in effect, a state simply refusing to obey with a federal mandate it views as clearly unconstitutional.

While nullification is not to be treated lightly nor employed for casual motives only, consider the circumstances. A sovereign state is part of a federal government, surrendering a few of its powers to that government. When that government decides to exceed its authority and force the state to comply, what should the state do? Bending over in submission has not worked well over the past two centuries. Relying upon federal courts—a branch of the very government exceeding its authority—has, in too many cases, proven a futile endeavor; lawyers in black robes have historically shown little concern for the sovereignty of the several states.

If the word “union” means anything, it means the joining of separate, distinct bodies into one. The states have explicitly authorized such unity in all matters relating to the powers delegated to the federal government. On any other issue, no such unity as been promised, nor does it exist. Just as unity would not exist between my wife and I if I were to force her to comply with an unreasonable or abusive request, so too are states not united with each other when unconstitutional mandates are produced and enforced by their creation, the federal government.

If our “more perfect Union” is to shed some of its saturating hypocrisy, states must affirm the voluntary aspect of their affiliation with the federal government; being forced to comply with mandates it neither agreed to nor desires is plenty of reason for a state to become defensive against federal aggression.

Indeed, states are, in our current political system, in bondage. They are in bondage to a federal government which, like an abusive husband, demands many unreasonable things, and brutally enforces its mandates. (To be sure, some of this bondage has been invited by the states who have succumbed to the temptation of “federal funding”.)

In addition to bondage to “The United States of America,” states may soon be in bondage to one another. Last week, Representative Rob Bishop (R-UT), Co-Chair of the Tenth Amendment Task Force, introduced an idea for a constitutional amendment he will be sponsoring in Congress. The purpose of the amendment is, in his words, to “provide citizens, through their elected state representatives, with a powerful tool to check an overzealous and power-hungry federal government.”

You’d think he was describing nullification. Instead, however, his “Repeal Amendment” simply states:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Note that, of course, this amendment refers to all laws passed by the federal government—not just those which exceed constitutional authority. Thus, even though the states have empowered the federal government with taxing authority, a few dozen states could overturn any given tax through a coordinated set of resolutions.

While this might be interpreted by some supporters of state sovereignty as a good thing, I believe otherwise. This amendment would, in effect, further erode a state’s sovereignty by requiring that any opposition to an unconstitutional edict be likewise supported by two-thirds of the other states in the “Union”. In other words, states wanting to declare opposition to an unconstitutional federal law would only be able to effectively do so when such opposition is agreed upon by a majority of Americans. (If this amendment dealt only with constitutionally-authorized laws, that would be a different thing, and one which I might consider supporting.)

But what of Virginia and Kentucky, whose opposition to the clearly unconstitutional and detestable Alien and Sedition Acts found no such support? This amendment creates a structure of bondage not between a state and the federal government, but between a state and its peers. Under such a law, a state’s sovereignty would further be subjected to majoritarian law and popular opinion. Nullification would surely be seen, with this amendment’s passage, as a less viable and desirable option, for opponents would no doubt argue that if a federal truly was unconstitutional, most of the states would agree with that opinion.

What happens, though, when a federal law is both unconstitutional and narrow in focus? What if its effects are only negatively felt in one or a few states, with the rest showing either ignorance or apathy in mustering up enough opposition to come to the aid of those other states? Should the sovereignty of any state be subjected to popular vote?

A quote attributed to Benjamin Franklin states that “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Defensively contesting an unlawful action of aggression is what nullification is and does. Rep. Bishop’s proposed amendment, on the other hand, is a system described by the former sentence—a state’s sovereignty would be contingent upon the democratic decisions of a majority of other states. This is bondage.

States, like that lamb, should be free to determine their own fates. They should be able to voluntarily participate in a “Union” of their choosing, as they have, and upon the terms they agree to. Those terms are outlined in the U.S. Constitution, where the states have surrendered supreme authority in regards to a few powers only; all others authoritatively remain to the states and the people. They should be (and are) able to refuse to comply with any act that clearly falls outside of that delegated authority. Interposition and nullification are the foundational political tools used to achieve that end.

In 1854, Justice Smith of the Wisconsin Supreme Court noted the importance of these tools of resistance when he wrote:

But the real danger to the union consists, not so much in resistance to laws constitutionally enacted, as in acquiescence in measures which violate the constitution. It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.

States must free themselves of the shackles of bondage—both to the federal government and to each other. Danger to our true union stems not from resistance to certain laws deemed unconstitutional, but to the long-standing deference to federal authority in all matters, and the systemic unwillingness of Americans to stand up to such federal aggression.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

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Introduction

The Tenth Amendment Center’s numerous national, state and local web sites have written voluminously about the principles of ’98, when the Kentucky and Virginia Resolutions laid down a framework for nullification and interposition by the states. Additionally, we have often referenced Thomas Woods’ Nullification: How to Resist Federal Tyranny in the 21st Century. Barrels upon barrels of physical and virtual ink have been spent justifying the idea that was, once upon a time, common knowledge. Augustine of Hippo said,

“an unjust law is no law at all”.

And John Locke said,

“”Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience”

This shouldn’t be controversial. The fact that it is controversial only shows how reckless our society has become towards the defense of Liberty. As if we could trust a far off city of elites to safeguard our precious Liberty for us! Do we really need yet another lengthy argument to demonstrate that the obvious is true, that Martin Luther King, Jr. was correct when he said,

“Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”

Centuries of philosophers from Ancient Greece until the American Civil Rights movement have all reached the same inescapable conclusion, as (reportedly) said by Thomas Jefferson,

“When injustice becomes law, resistance becomes duty”

I say the shoe is on the other foot. If someone wants to attempt to dispute centuries, even millenia of Western thinkers, the burden of proof is theirs, not ours! So let us now look at modern America taking the obvious to be fact and look at tactics, strategies and goals of resistance through the prism of some historical events.

Alien And Sedition Acts

First, the Alien and Sedition Acts – these are the acts which prompted the Kentucky and Virginia Resolutions in 1798. Interestingly, although these acts led to the resolutions which establish the theoretical basis for nullification and interposition, the ultimate remedy to these acts came when the people changed the power-brokers in Washington, DC and the acts were repealed in 1802. As earlyamerica.com says,

Indeed, public opposition to the Alien and Sedition Acts was so great that they were in part responsible for the election of Thomas Jefferson, a Republican, to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest.

Whiskey Rebellion

Around the same time, as we covered previously, was the Whiskey Rebellion. According to the National Park Service,

“The Whiskey Rebellion took place throughout the western frontier. There was not one state south of New York whose western counties did not protest the new excise with some sort of violence.”

And Murray Rothbard writes,

Rather than the whiskey tax rebellion being localized and swiftly put down, the true story turns out to be very different. The entire American back-country was gripped by a non-violent, civil disobedient refusal to pay the hated tax on whiskey. No local juries could be found to convict tax delinquents. The Whiskey Rebellion was actually widespread and successful, for it eventually forced the federal government to repeal the excise tax.

The unpopular whiskey tax was repealed in 1802 and its end was overseen by Albert Gallatin, a man who had been arrested as a whiskey rebel in 1794. The resistance tactics we see in play from the whiskey rebellion are 1.) civil disobedience; 2.) jury nullification; and 3.) voters responding to an unpopular tax by changing the power-base in Washington, DC.

Fugitive Slave Laws, the Underground Railroad and Personal Freedom Laws

From the signing of the Constitution until the Civil War, the people, the states and the federal government were in continuous competition about slavery and freedom for blacks. We’ve written about Pennsylvania’s role in that contest, here. In short, many of the northern states used various degrees of nullification and interposition to protect the freedom of escaped slaves inside of their boundaries. Additionally, many citizens, north and south, participated in the underground railroad, helping escapees find their way north. The ultimate remedy to this injustice came in the form of a Constitutional Amendment, which resulted from the Civil War. As with the whiskey rebellion, we see multiple forms of resistance to the injustice of slavery. These included 1.) civil disobedience; 2.) jury nullification; 3.) nullification and interposition by the states and 4.) war (yes, there were other, probably more influential, reasons for the war, but it is also true that many who fought and died in that war were motivated by the issue of slavery).

Agricultural Adjustment Act of 1938

In 1938, in violation of the clear language of the Constitution, congress set limits on how much grain a farmer may grow on his own farm, even if it never leaves his property. Ohio farmer Roscoe Filburn challenged this limit in the precedent setting case, Wickard vs. Filburn, but unsurprisingly, the federal government found in favor of the federal government (and “big Agriculture”) against that Ohio farmer. Pennsylvania’s own Joseph Blattner also challenged this limit and lost. It is noteworthy that I have found no record of either Ohio or Pennsylvania governments making any effort to defend their besieged citizens. The only tactic of resistance attempted by anyone was the courageous, but futile, act of two individual citizens attempting to go mano a mano with the federal government in the federal government’s own courts. To date, there has been no remedy to these injustices. In fact, the scope of the Constitutional power grab has continued to grow.

Jim Crow and Civil Rights

I have to admit to a glaring lack of knowledge on these events, and I don’t have time to research them for this essay, so I’ll only mention that the tactics of resistance included civil disobedience and organizing to influence national elections.

Real ID, Medical Marijuana and Modern Nullification

Two of the most successful nullification initiatives have been nullification of the federal Real ID and Medical Marijuana laws. At this time, fourteen states are nullifying federal laws against medical marijuana use and twenty-five states are nullifying the Real ID act. The thing to remember, however, is that nullification is a tactic, or a tool. It is not a goal. Does anyone doubt that if a massive terrorist attack takes place, the state support for nullifying the Real ID act will dry up? Likewise, nullification of medical marijuana laws is only good for as long as a state can maintain internal support. It may not be permanent. If the federal law stays on the books, it is likely only a matter of time before the state’s will to resist is exhausted. The states need help in the form of “voter revolt”, jury nullification and possibly civil disobedience (depending upon the abuse) in order to achieve a permanent remedy, usually in the form of repeal.

Conclusion

“Should the general government in any of its departments violate the provisions of the constitution, it rests with the states, and with the people, to apply suitable remedies.”, Pennsylvania General Assembly, 1811

We have seen that resistance to injustice has been a part of American civic life since the ratification of the Constitution. We have seen a number of tactics which can be employed and we have seen that resistance has been most effective when a combination of tactics have been employed. These tactics have included civil disobedience, jury nullification, state nullification and interposition and “voter revolt”.

Hopefully, this article made it clear that tactics are not goals. The tactics of resistance are used, continuously, until the goals of resistance are met. In most historical cases, the goal has been the repeal of an unconstitutional federal law. Occaisonally, the goal has been a Constitutional Amendment.

An interesting new tool has also been proposed, the repeal amendment. In the highly unlikely event that an Article V convention is called and this amendment makes it through the convention unchanged and it finally gets ratified by 3/4 of the states, the amendment would allow a 2/3 majority of the states to demand repeal of a federal law. The Tenth Amendment Center has posted on this amendment here and here. One opinion of mine is that this represents another tactic which could be usefully added to our resistance tool kit, as long as it is clearly understood to be an addition, not a replacement. Another opinion of mine is that this will never ever ever ever (ever!) get ratified by 3/4 of the states, so it’s not worth spending much time thinking about it.

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

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Nullification – the principle that, under the Tenth Amendment to the Constitution, the states and their people have the right and responsibility to declare unconstitutional federal laws of no force within their jurisdiction – has a significant place in Massachusetts history. As a hot spot of colonial resistance leading up to the War for Independence, Massachusetts emerged as a leader in pushing back against unlawful and immoral acts of Parliament. The place Massachusetts holds in the fight for liberty and local sovereignty lends strong philosophical support to the Tenth Amendment movement and provides a historical backdrop for its emergence as a leader in constitutional integrity.

The acts of Parliament and the Crown of Great Britain that led to the Revolution were numerous and stretch far into history. But the beginning of the tensions that led to war occurred in 1764 with the passage of the Sugar Act, which restricted a free and open market in the North American colonies. It was the first act of Parliament written specifically to raise colonial money – thus generating the well known slogan, “taxation without representation.”

The Sugar Act was followed by other laws that restricted the personal and economic liberties of American colonists: the Currency Act, the Quartering Act, the Stamp Act, the Declaratory Act, and the Townshend Acts. With each new piece of legislation, discontent with the English government grew into open, organized opposition that focused on the right and ability of a people to govern itself locally. And Massachusetts was at the forefront of this opposition.

In January, 1773 (the Boston Tea Party would take place in December that year), the loyalist, colonial governor of Massachusetts, Thomas Hutchinson, gave a speech to the state assembly to address growing opposition to the British government. In his speech, Hutchinson spoke directly to the citizens of Massachusetts who were, in effect, attempting to nullify Parliament through acts of local and individual sovereignty:

“The authority of the Parliament of Great Britain to make and establish laws for the inhabitants of this province has been, by many, denied. What was, at first, whispered with caution, was soon after openly asserted in print and, of late, a number of inhabitants in several of the principal towns in the province, have assembled together in their respective towns and, having assumed the name of legal Town Meetings, have passed resolves which they have ordered to be placed upon their town records, and caused to be printed & published in pamphlets and newspapers … some of them deny the supreme authority of Parliament.” [emphasis added]

So as far back as the early 1770s, the people of Massachusetts have asserted their rights of local sovereignty. The philosophical ideas that would give rise to the protections granted in the Tenth Amendment were present before the Revolutionary War even started. In fact, the same principles enshrined in the Tenth Amendment are the same principles that caused the people of Massachusetts and the other twelve colonies to resist Parliament through the acts of locally elected legislatures. The people of Massachusetts recognized in 1773 that a a geographically distant government, concerned with its own welfare and motives, had no place in managing their local affairs.

It was a sentiment that would be carried up to and throughout the war. The formation of the Continental Congress and individual states’ efforts to form their own legislatures with the power to make policy in opposition to that of the Parliament reflects the deep rooted American belief in self-governance – a belief that, despite efforts to suppress and overcome it, will not go away easily. The formation of a new Tenth Amendment Center chapter in Massachusetts is evidence to that fact.

Today, the people of Massachusetts face a similar situation. A distant, centralized government, concerned only with its own self interest, sits now in Washington, rather than London. This distant government has claimed supreme authority over nearly every aspect of public life and continually contrives new methods of taxation to fund its growing size and intrusiveness. The nullification pioneers of 1773 understood well that the size of government is inversely proportional to individual liberty. In our current era of bailouts, welfare-statism, and perpetual war, it’s hard to believe that individual liberty stands a chance.

But it does stand a chance as long as we recognize that we are the chance. We, the people of Massachusetts, have the power and authority to keep the federal government in check, if we take a lesson from our colonial history. Under the authority of the Tenth Amendment to the United States Constitution, we have the authority to assemble and declare, as a sovereign state, that Massachusetts is not subject to the supreme authority of the United States government when it ignores the Constitution and its enumerated powers.

Roger Prather [send him email] is the Communications Coordinator for the Massachusetts Tenth Amendment Center

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