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The Ivy League Hates Nullification

Written By: Tom Woods  |  Posted: Tuesday, April 27th, 2010

Over the past few years, but especially during the past several months, there has been an extraordinary revival of interest in Thomas Jefferson's idea of state nullification of unconstitutional federal laws. According to Jefferson, if the federal government were to monopolize constitutional interpretation, it would of course interpret the Constitution in its own favor and consistently uncover previously unknown reservoirs of additional federal power. Only a fool would consent to such a system, thought Jefferson, and the peoples of the states were not fools.
Needless to say, nullification is nowhere to be found on the three-by-five card on which our betters have written out the range of allowable opinion, so it has been greeted with the usual hysteria from predictable quarters.
The latest, and to my mind most laughable, example comes from Sean Wilentz, a history professor at Princeton, writing in The New Republic. The subtitle of Professor Wilentz's article "The Essence of Anarchy" is "America's long, sordid affair with nullification." What Professor Wilentz omits in his alleged history of that "long, sordid affair" could fill an entire book, and indeed just weeks ago I announced the impending release of my own book on precisely this subject. (Nullification will cover the origins and theory of nullification, its forgotten nineteenth-century history, modern applications of the idea, and much else.) For now I'll note the New England states that appealed to nullification (or interposition) against President Jefferson's embargo, against what they considered the unconstitutional calling up of the New England militia during the war of 1812, against the use of military conscription, and against a law providing for the enlistment of minors.
Pretty "sordid, " huh?
In addition to other examples, we might also refer to the legislature of Wisconsin, which as late as 1859 was quoting from Jefferson's Kentucky Resolutions of 1798 in opposition to unconstitutional aspects of the Fugitive Slave Act of 1850. Sordid, I tell you. Here's the text of a handbill that circulated in Milwaukee in the 1850s:
"All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom -- the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY -- as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 1850, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS' HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o'clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand."
What's that? A "state league" to defend "state sovereignty" on behalf of human freedom against the "flagrant usurpations" of the federal government? How sordid!
Do you suppose Professor Wilentz teaches that at Princeton? Does he even know about it?
What Professor Wilentz also omits, and perhaps doesn't know, is that abolitionists who opposed the Fugitive Slave Act of 1850 expressly endorsed nullification and even referred to John C. Calhoun by name in support of their ideas. A shame Professor Wilentz wasn't around to tell them that only a "racist" would refer to the wicked Calhoun, and that mature adults should never be allowed simply to consider his ideas on their merits.

Outdated Scholarship
Wilentz spends some of his time giving us a 60-year-old interpretation of the Virginia and Kentucky Resolutions of 1798, where nullification and interposition were first expressly advanced, as if no scholarship had appeared since then. He tells us that Jefferson was "in a panic" when he drafted the Kentucky Resolutions. In other words, Jefferson wasn't really in his right mind, so we can excuse him for dreaming up crazy constitutional ideas that irritate Princeton professors.
Whether he realizes it or not, Wilentz is here repeating the thesis of Adrienne Koch and Harry Ammon, from their 1948 William and Mary Quarterly article "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties." Koch and Ammon suggest that nullification was really just an ad hoc response to an emergency situation rather than an enduring constitutional doctrine in its own right.
Unfortunately for Wilentz, the subject has been explored a teensy bit further in the six decades since then. As Kevin Gutzman shows in his book Virginia's American Revolution: From Dominion to Republic, 1776--1840, Jefferson did not invent nullification in a moment of haste. The germ of nullification is directly traceable to the Virginia ratifying convention of 1788 (and indeed even into the colonial period). There, supporters of the Constitution insisted that the federal government would possess only the powers "expressly delegated" to it, and that Virginia would be "exonerated" should the federal government ever reach for a power beyond those delegated. Edmund Randolph and George Nicholas assured Virginians of these principles in so many words. Both men served on the five-man committee that was to draft Virginia's ratification instrument. Randolph went on to serve as U.S. attorney general, and Nicholas as attorney general of Kentucky.
Throughout the 1790s, Virginians kept returning to the assurances they had been given in 1788. To give just one example: appalled by Alexander Hamilton's financial program, and particularly the federal assumption of state debts, Patrick Henry introduced a resolution, passed by the Virginia legislature, that cited Hamilton's program as an example of precisely what Virginians had been assured could not happen -- the exercise by the federal government of a power it had not been delegated. Henry reminded his fellow Virginians that they had been sold the Constitution on the grounds that the federal government would have only those powers expressly delegated to it, and that the state government would be a sentinel watching over federal officials and remaining on guard against federal encroachments. Is that really so far from what Jefferson would later say?
By the time Jefferson drafted the Kentucky Resolutions of 1798, therefore, he was merely developing these longstanding principles. He certainly was not spinning out an ad hoc response. Much less was he acting merely "in a panic."

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