The Nullity of Nullification and the Revolutionary Nature of 'We The People'- Touching on Tyranny pt.4

Yesterday I restated the case that the greatest threat facing our liberty - and our very selves - is not our government, or politicians or even regulatory law; those are the means, but not the source and cause of what threatens us; but that the greatest threat facing us is our ignorance of what our Rights are, and why this nation was founded in the first place. One result of our failure to acknowledge this very real and looming threat, is that the types of remedies put forward to defend us, and to defend our Constitution, are not only ineffectual, but are derived from, and necessarily deepen, that ignorance, and so despite the best of intentions, they enlarge the threat.

One such example, one that has gained quite a following in recent years, is the nullity of constitutional defense known as Nullification (Missouri has an example of this in the news). This strategy is put forward by well meaning would-be defenders of our Constitution, many of whom I have a great deal of respect for, and it proposes to counter the very real problem of federal overreach, but by advocating local overreach; proposing to pass laws on the state level, which will counter, or nullify, the laws of the entire nation.

To put it more clearly, to uphold the Constitution and counter those actions of the Federal Govt which effectively nullify the Constitution from the top down, these (typically, but not always) libertarians propose nullifying our Constitution from the bottom up, through laws written to override those laws written and passed under the authority of our Constitution, which delegitimizes the Constitution even further.

Apparently useful phrases such as "Two wrongs don't make a right" have fallen into severe disuse... no doubt no longer considered to be part of our 'Common Core Curriculum'.

Lets take a moment and note what Nullification is, what its modern proponents claim it to be, and just a few of what the implications of those claims are. The chief defender of nullification today is Tom Woods, who defines it here, as:

"State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws."

While that is the sense which Jefferson & Madison had in mind when they proposed the Kentucky Resolutions (more on those later), and those resolutions are what Woods and modern libertarians claim to base their ideas of nullification upon, that is not the sense in which its proponents use the word today; it is at best a sanitized statement which hides, rather than conveys, what they mean and intend by the term nullification today.

Let me emphasize something here: States absolutely do have the power, and their citizens do have the Right (see the 10th and the 9th amendments), to withhold or withdraw the aid of their states in administering and enforcing federal laws which they find objectionable - that is within the constitutional powers of a state. IMHO, a legitimate argument could be made that that is even an expression of the checks and balances our constitution depends so much upon.

But that is not how nullification is thought of, or promoted, today.

Nullification in its modern sense, is the idea that those laws which have been passed by the requisite representation of their fellow states of the union and signed into law by those means provided for in the constitution (which is not to comment upon those laws constitutionality, only that they were passed in a constitutional manner, and so must be addressed or opposed in kind), can actually be made illegal in their state. See Missouri's own recent attempt at nullification, in the "Second Amendment Preservation Act". Understand, proponents do not simply mean withholding their assistance in carrying out the law, or withdrawing their state's administrative support (a potentially devastating blow to the federal governments plans to enforce a law), or making a strong resolution against certain federal laws - I'd be behind them all the way on that. I would even go along with laws passed as test cases to challenge the constitutionality of federal overreach. For instance, I've no problem with these clauses:

• 4. It shall be the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and from the infringements in subsection 3 of this section.
• 5. No public officer or employee of this state shall have any authority to enforce or attempt to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section.

, so far so good. And even this,

• 7. Any Missouri citizen who has been subject to an effort to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section shall have a private cause of action for declaratory judgment and for damages against any person or entity attempting such enforcement.

, while a bit provocative, there's an argument to be made that it could prompt a test case, at the Supreme Court or Ballot Box level, which might lead to fully airing and resolving the question of the federal governments attempt to infringe upon those Rights of ours which are protected by the 2nd Amendment.

But where they lose me, where our 'Second Amendment Preservation Act' loses me, is where it steps beyond a state's legitimate bounds and powers. And Power, no matter how friendly or tamed you might think it is, is not something that is wisely let off the short leash of the law - and especially not 'for a good reason' - it is always 'for a good reason' that the turn towards tyranny is taken, and it is always ignored because the people at the time tell themselves "Oh, but we won't do that..."! The 'Second Amendment Preservation Act' not only lets itself off the leash, it flexes its power and strikes out with it, using our state law to not only to obstruct & countermand federal law, but to pit law against law, with this:

• 6. Any official, agent, or employee of the United States government who enforces or attempts to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section is guilty of a class A misdemeanor.

IOW, as the Volokh Conspiracy pointed out,

"it goes on to make it a misdemeanor for a federal official to enforce federal law within the state"

IOW this 'law' would use (misuse) the power of the state, to turn federal agents into criminals for following their, our, law. You don't need to be able to say "Fort Sumter" to realize that when the "Supreme Law of the land" is made illegal in one or more states... there is not only trouble brewing, but the very concept of Law, let alone a nation of laws, is what is in the process of being nullified.

This needs looking into.

Wooden Heads
Woods provides an argument for Nullification which he describes as an extremely basic summary in three points, and I'll give a brief (um, keep in mind who just typed that word) synopsis of his synopsis. His first point is:

• "1)The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of individual states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention."

There are a number of things to look at in this first point - not so much for the points made, as for the point that those points seem to avoid making.

In saying that "The states preceded the Union. The Declaration of Independence speaks of “free and independent states”..." it's hard to resist grunting out a loud "Duh!" - for except for those few who've never seen a calendar, it is a stupidly obvious point to make, and not said to indicate or lead to any other point - of course there was no Union prior to its being created, and of course we had separate independent states prior to being constituted as one nation.

As when with a magician who clearly has a silver dollar in his had, flourishes his arms and says "I have here in my hand, a silver dollar", what I want to know is what he was hoping to distract my attention away from with such a statement of the obvious, and in this case, what Wood's words seem to distract most from, is the nature of what was created when those several states came together and ratified the constitution; it distracts from what could only have been created through their agreement to leave behind their earlier state, through uniting into a more perfect union, and distracts from the fact that not only were they separate, independent, sovereign states, but that they framed and ratified the Constitution in order to move beyond that! Woods notes: " they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.", true, obviously, but he doesn't followup on another obvious point, perhaps for fear of nullifying his argument for nullification, that while such states,

“...have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”

, those are the powers that the Constitution explicitly prohibits the states from exercising in Article 1, Section 10, Clause 3 of the Constitution which the people of the time, We The People, adopted!

Obviously the traditional sense of being sovereign states was being altered by the states ratifying the Constitution, as the constitution of all of the laws, of all of the states. The original Articles of Confederation Woods refers so often to, were very protective of the idea of states acting as sovereign entities, it was a central feature of them... and the Constitution was designed to replace those Articles, because they failed. Over a century before the phrase was coined that "Those who don't learn from history are doomed to repeat it", the people of the Founders era knew the history of the ancient Greek republics, the "warring states of Greece" and they chose to constitute a union rather than give history a chance to repeat itself again. More importantly, this first point distracts from what, in the Founders view, it was that created those initial states, and how.

Did the British Govt. create their states? Did the Founders think that? Have you ever thought about that?

And while we're at it, it is also worth considering why it was that in the charges within the Declaration of Independence, it is stated that,

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation"

Constitution? What 'Constitution'? They're obviously not referring to the Constitution which would not be thought of, let alone written, for another decade, so what Constitution are they referring to? And why singular, rather than plural? Clearly they were not referring to those states constitutions which had been, or were being, written, neither were they referring to the British (unwritten) Constitution, but to something very different and yet something that was common to all of the people of all of the states ('constitution', not 'constitutions')... why refer to that, rather than to the thirteen colonies turned states, except that there must have existed in their minds, something that was common to all of the colonies, and not, or no longer, common to the British people and the means by which the British Crown claimed power over them.

Another key lays in these words from those charges of the Declaration's noted above, of 'pretended Legislation'. What did they mean by noting that the King had given "... his Assent to their Acts of pretended Legislation"? Obviously the Parliament didn't just pretend to pass legislation, they actually passed several acts of legislation and they were busily attempting to enforce them, so what was it that, in the Founders eyes, made those acts into "Acts of pretended Legislation"? We'll come back to that in just a bit.

Revolutionary Words: We The People
It is difficult to give very much respect to the argument the nullifiers are trying to advance, when the substance of that argument, unadulterated state sovereignty, was the very first issue identified, debated, and dealt with, during the ratification conventions that were held within the several states, not by those state's governments.

Woods' lazy assumptions to the contrary, the Constitution was not submitted to the state governments to be debated and ratified - if it was, they would have debated and ratified it in their legislatures. Instead, it was submitted to conventions of the people of the several states. There, the people, not their state governments, met, discussed, debated, and ratified their intent to act, leaving behind the idea of "We The Many Peoples", and becoming "We The People" - which was a central purpose and requirement of, the constitution they voted to ratify.

The first three words of the Constitution are,'We The People', and while we may toss them off very casually today, they were a very controversial choice of words in their day. No less a personage than Patrick Henry was very much alarmed by those three words, and he made much of it during Virginia's ratification, such as where he said:

"...I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states..."[emphasis mine]

Patrick Henry immediately grasped the difference in meaning between "We The People" and "We The States", and though he was wrong in seeing a purely national government in what the Constitution meant, he was hardly the only one during the long process of ratifying the Constitution, to realize that "States are the characteristics and the soul of a confederation", and as the Constitution speaks of "We, the people, instead of, We, the states", then what was being proposed was not a compact of sovereign states, but a replacement for that very condition - a condition which had already been tried and judged to have failed, hence the Constitution they were debating upon whether or not to ratify.

Pauline Maier, in her book "Ratification!", notes instances of this in several of conventions, such as in Pennsylvania's,

"Whitehill also objected to the Constitution's opening words, "We the People," which he said showed that the Constitution destroyed "the old foundation of the Union" --- a confederation of states---and built on its ruins "a new unwieldly system of consolidated empire" that was "designed to abolish the independence and sovereignty of the states." Two days later, after another delegate moved that the convention proceed to Article II, Smilie objected. "In his opinion," he said, the convention "had not yet got over the first six words of the Preamble.""

Maier also notes that Patrick Henry summed his first impression up as,

"Here is a revolution as radical as that which separated us from Britain," Henry said, since it endangered "our rights and privileges" and relinquished the states' sovereignty. It was wrong to ask "how your trade may be increased" or "how you are to become a great and powerful people." The only appropriate question was "how your liberties can be secured; for liberty ought to be the direct end of your Government.... Liberty the greatest of all earthly blessings---give us that precious jewel, and you may take everything else."

The argument was made, it was debated, and it was eventually understood that state sovereignty, singular, whole and complete, had to be modified by each individual state entering into a true union of all of the states, or the United States would no longer remain united.

The issue was argued and debated, and that 'confederation' and 'union' were very different concepts was clearly understood, though not necessarily ever fully agreed upon. It is, except as shorthand, nearly always shaky to say "The Founders thought this" as a whole on any particular thing, but on this count, whether or not they all agreed, We The People of the Founders Era understood that "We The People" had a very different meaning from "We The States", and the concept of sovereignty of the states before ratification of the Constitution, was a very different one from what resulted from ratification of the Constitution by We The People.

How so? The Declaration of Independence points the way to understanding this. Note that the Declaration states that,

"...Governments are instituted among Men, deriving their just powers from the consent of the governed..."

It does not say that governments derive their just powers from their governments, or from their governors, does it? Or from their legislators? Their point is clear, unlike Woods when he makes his point that "The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.", here the point seems to be a point which is unclear, overlooks much and assumes even more... and the entire justification for nullification relies on just such a lack of clarity and subtle misdirection.

That governments derive their just powers from the consent of the governed, is a central understanding of our Founders Era, which is just as correct today as it was then. Neither the Constitution, nor the Declaration of Independence nor the British Govt., bestowed sovereignty upon the States; that sovereignty came from and remained with the people's nature as human beings, a power that was delegated from them, from We The People, to the states. The states themselves do not, and never did, have that power themselves, which is why the states weren't appealed to for ratification of the Constitution, but the people were. That is the reason behind why the Constitution was submitted to ratification by We The People, and not We The States.

Justice Joseph Story's comments on the Preamble, from his Commentaries on the Constitution, in small part, notes:

"...The language is, "We, the people of the United States," not, We, the states, "do ordain and establish;" not, do contract and enter into a treaty with each other; "this constitution for the United States of America," not this treaty between the several states. And it is, therefore, an unwarrantable assumption, not to call it a most extravagant stretch of interpretation, wholly at variance with the language, to substitute other words and other senses for the words and senses incorporated, in this solemn manner, into the substance of the instrument itself. We have the strongest assurances, that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people, for a confederacy of states; a constitution for a compact...."

"We the people of the United States, in Order to form a more perfect Union..." was, and still is, a very revolutionary phrase; it was a hot-point of contention, much argued over, debated, and ultimately ratified in the understanding that the singular union which the former PeopleS of America were entering into, together, not separately, to form a more perfect union, was to have little or nothing to do with the old understandings of compacts or confederations which preceded it, it changed the nature of the states as they had existed prior to it, and their future relations to each other, through Union, rather than confederation.

Union, the joining of once separate pieces into a single body, is a very different term from Compact, that of closely packing still separate pieces together, and had they intended compact, I think they would have used that word, which was very popular at the time; and though often used in explanation of Union, of what it was 'like', it was not the word 'compact' that was chosen to be used IN the Constitution, Union was.

Why?

Just Powers That Be
What a Union is, is a question that is often lost on Woods, who rarely examines it any closer than a wry comment about marriage, such as:

"After all, the compact theory rests on the crazy idea that the creators of something precede the thing created, logically and temporally. Thus compact theorists actually think the bride and groom come before the marriage; we are evidently instead supposed to believe that first there is a marriage, and the marriage in turn creates the bride and groom."

Well, sorry to say, but that which he presents as 'a funny' nearly is what actually happens. Of course a man and a woman precede marriage, and bring it about, as did the sovereign states precede their constitutional union through ratification, but the ceremony of marriage is what creates their status as Bride and Groom, and only through the completion of the ceremony, do they become Husband and Wife - that's not something they can achieve on their own, nor can they claim those titles while remaining only A man and A woman. But it's not as though they cease being individuals when they marry, but that they cease being only individuals, and begin being something more, 'of one flesh', and that something more, marital union, affects aspects of their individuality and discretionary powers, just as the constitutionally created union of states, in addition to increasing the scope of each individual state, increases its interrelation and obligations to its fellow states in a way that treaties, alliances and compacts simply do not. While the structure of the states remained, their purposes, powers and the source of their Just Powers, was altered from being several distinct peoples, to being One People, who inhabit many states.

That 'neither fish nor fowl' was part and parcel of how the Constitution was promoted, sold to, and ratified by We The People. Maybe the one point most worth making here, is that today we have a Constitution, and we either work within it or we don't, but we don't get to claim we're doing both.

Locke made an important point on this issue in CHAPTER XIX. - Of the dissolution of government:

"§ 212.
Besides this overturning from without, governments are dissolved from within.

First, When the legislative is altered. Civil society being a state of peace, amongst those who are of it, from whom the state of war is excluded by the umpirage, which they have provided in their legislative, for the ending all differences that may arise amongst any of them; it is in their legislative, that the members of a commonwealth are united, and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth: from hence the several members have their mutual influence, sympathy, and connexion; and therefore, when the legislative is broken, or dissolved, dissolution and death follows: for, the essence and union of the society consisting in having one will, the legislative, when once established by the majority, has the declaring, and as it were keeping of that will. The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people; without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest...."

A society under law, is a society that recognizes one set of laws common to all, else they would not be "A" society, but numerous associated states. Union is a word that changes the nature of those entering into it, we individually enter into marital unions, not marital compacts, and once entered into, we do not, and rightfully should not, either declare our intention to ignore the other or stroll on out of that union with a casual "Oh, hey, burnt toast again?! See ya!"

There is of course such a thing as divorce, but that again is something very different from breaking up or abandonment. As with divorce, it is something to be entered into carefully and methodically, and ultimately with the agreement of all of the parties involved, and never to be rushed into - failing that, a bitter and contracted dispute will ensue. Locke, again, had something to say on the issue, and he too saw it as inseparable from legislative union, continuing from where the previous quotation left off, as Locke put it in CHAPTER XIX. - Of the dissolution of government:

"§ 212. "... When any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those, who without authority would impose any thing upon them. Every one is at the disposure of his own will, when those who had, by the delegation of the society, the declaring of the public will, are excluded from it, and others usurp the place, who have no such authority or delegation.""[emphasis mine]

When legislation is written by those "...whom the people have not appointed so to do...", you have 'legislation without representation!', and they may be acted against.

But when you are represented, you are not free to behave as if your are not!

To do so is to rebel against the Union you are a part of. When one or more states take it upon themselves to act outside of the sphere of laws rightfully belonging to the union of them, and apart from any explicit agreements which constituted their union, they act to negate and nullify the whole... and only disaster can follow.

As Lincoln might say: "Been there, done that." (Note: I'd be willing to listen to such an argument concerning regulatory law, I think it could be made that there we truly do have 'legislation without representation!', and constitutionally, with Congress's ability to delegate its powers being the issue there, but that is not the position that nullifiers are promoting).

And with that first strike, I'd better pause here for the moment, and return with strikes two & three against Woods' summary argument for nullification, tomorrow.