Refuting Nullification, Part One
Frank Cocozzelli printable version print page     Bookmark and Share
Sun May 19, 2013 at 05:24:36 PM EST
The emerging influence of Thomas J. Woods and other neo-Confederate ideologues within the Catholic Right was the focus of the first post in this series. They are advocating the failed concepts of secession and the nullification of federal statutes and court rulings. The second post in the series explored why nullification matters and how it can lead to localized tyranny and theocracy.  To complete the quartet, we will discuss first how proponent's claims for historical justification are simply wrong, and then detail the Constitutional argument against nullification.
Traditionalist Catholics such as Thomas Woods and Opus Dei firebrand Fr. C. John McCloskey, who are openly discussing nullification and secession -- are finding common cause in a growing movement. The libertarian Catholic Acton Institute has looked upon Woods' gospel of nullification with approval, even (incorrectly) equating it with the Catholic principle of subsidiarity (human affairs are best handled at the lowest possible level). More and more the concept is being discussed as a viable political option by socially conservative and traditionalist Catholics.

As I previously reported, among the Catholic Rightists beating the drum for nullification are Pat Buchanan, Thomas DiLorenzo, Thomas Fleming and Thomas E. Woods, Jr.  All four advocate states' rights, a seething resentment of Abraham Lincoln, and as Rachel Tabachnick recently highlighted, Woods is a key member of the pro-secession League of the South, Traditional Catholicism (save possibly DiLorenzo) and Austrian-school, libertarian economics.

Known as "tenthers" they argue that individual states, citing the Tenth Amendment to the federal Constitution, have the right to nullify federal legislation or court rulings of which they disapprove -- on quite a range of subjects.  Some have recently argued that states should and have the right to block federal health care reform; refuse to enforce federal firearms regulation and some cases, as a justification for imposing Christianity as an official state religion. Gov. Sam Brownback of Kansas - an Opus Dei convert to Catholicism -- has already signed several nullification bills into law, inviting a federal court challenge. U.S. Attorney General Eric Holder has written to Brownback to inform him that his legislation is unconstitutional.  Indeed, nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.

As dubious as nullification may sound to liberals, let's note that even the conservative Heritage Foundation calls it "Unlawful and Unconstitutional." The libertarian Cato Institute is only slightly less absolute, citing a limited use for nullification, but cautions:  "Can a state impede federal authorities from enforcing their own law if the state deems the law to be unconstitutional.  The answer is "No," although more radical nullification proponents would disagree."

States Did Not Precede the Union

The claim by Woods and other latter-day John Calhouns that nullification is consistent with the original intent of the Constitution is rooted in bad history. They assert that the states constitute a higher authority than any of the branches of the federal government because the individual states existed before the national government was created.  However, a fair reading of American history debunks that myth - and by extension, the foundation of the entire nullification argument.

When the notion of secession was at its height, Abraham Lincoln argued for a sturdy form of federalism.  "Plainly," Lincoln declared, "the central idea of secession is the essence of anarchy."   Lincoln was soon proved to be correct. In the closing days of the Civil War, Alabama and Georgia were so protective of their notion of state sovereignty that they threatened to secede from the Confederacy.  Even Jefferson Davis, the president of the Confederacy admitted, his movement "died of a theory" -- and that theory was states rights.

The fallacy that "the states preceded the federal government" argument  is exposed by simply considering the history of the thirteen colonies.  At the time of the revolution each were Crown colonies, which is to say that the King of England appointed their governors.  Royal charter founded indeed most of them. New York (then including whole swaths of territory that would become New Jersey) was wrestled from the Dutch by the British, and added to her American holdings.  Little more than a century later, the British military might engaged in a war with France and her Native American allies to protect the colonies (in what we now call the French and Indian War.) The British victory enlarged the American colonies.  Massachusetts gained control of what is now Maine while Virginia expanded into what is now West Virginia.

The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government. The common thread that ran through the complaints of each American colony in April 1775 was that they were being taxed and bullied by that central entity without any true representation in its decision-making. And when they initially revolted they did not do so advocating for their rights as Rhode Islanders or New Yorkers or as Georgians but as their rights as British subjects. They were simply demanding a say in the Parliament that was legislating without them being able to debate or vote on any law that adversely affected their general welfare.

When the Continental Army drove the British from Boston in March 1776, units from Maryland, Pennsylvania and Virginia while being commanded by a Virginian, George Washington, joined the Massachusetts Militia. They answered to a Continental Congress, not individual state governments. More importantly, when independence was declared it was done with purpose of severing their common governing relationship with London and replacing it with our own central authority. This was the cause that transformed into the creation of a nation.

The argument that the states precede the federal government truly falls apart with the addition of the post-Revolution states. The states that were created out of the Louisiana Purchase were made possible with the common funds from the United States Treasury. Individual states were also carved out from United States' Territories. The same is true of Alaska.  In the case of what are now our Southwestern states, those descended from territories seized from Mexico by a nationally organized war (a conflict opposed by then-Congressman Lincoln). Many of the upper western states were created from territories similarly seized from Native tribes such as the Sioux and Cheyenne.

Finally, it is worth noting that whatever our political outlooks, few of us see the founding of the Jamestown and Plymouth colonies as the origin of individual sections or states. Rather, we see them as the beginning of our identity, warts and all, as an American People (the longer history of Native Americans, notwithstanding).  We celebrate Thanksgiving Day, for example, as a national tradition, not one unique to Massachusetts.  Likewise, we celebrate July 4th as the beginning of the American Revolution, not the secession of the individual original thirteen colonies from the British Empire.  Rather, we all revolted in unison and reliance upon each other to create a new nation.

Thomas Woods and his ilk are simply wrong about American history; the states did not precede either a central government or our common identity as a people.

For more on this see A Talk to Action Anthology on Nullification and Secession.

My concern is that with times getting harder for ordinary people, you will see people like Thomas Woods and his ideological counterparts exploiting regional and political differences to create the Civil War Part II. Nullification is one of those political concepts that should have gone into the dustbin of history, but it doesn't prevent retrograde thinkers like Woods and new NRA head James Porter from exploiting people's fears and prejudices.

by khughes1963 on Tue May 21, 2013 at 07:49:26 PM EST

When he wrote his book Nullification, I e-mailed him and he answered and we discussed the book in some detail.  He is a very decent guy, it seems.

While he is a brilliant historian and has vast knowledge of the Framing of the Constitution and the philosophical underpinnings of the document, he is neither a legal scholar nor a practicing attorney.  He didn't seem to see how ineffective Nullification is on a day-to-day legal basis.

Federal criminal statutes are not usually enforced by District or Commonwealth's Attorneys or state AGs.  They are enforced in federal Courts by US Attorneys.  Suits on Federal Civil statutes that have a private right of action (ERISA or Civil RICO, for example), while they could be brought in state court, usually aren't, they tend to be brought in Federal Court to avoid removal there.

While it isn't exactly Nullification, California essentially legalized Medical Marijuana.  However, the Feds during the Bush Administration and the first years of the Obama Administration continued to enforce Federal Law (which tends to require an interstate aspect).  In the words of Rocket J. Squirrel, "Again?  That trick never works!"

However, while the legal effect is limited, having the support required to nullify a Federal Law usually reflects vast political support for the change in law and perhaps a sea-change in politics.  

While the Alien & Sedition acts were still enforced in Virginia and Kentucky, the nullification of the Act in 1798 was a harbinger of Federalist setbacks in the election of 1800.  While fugitive slaves were still captured in Wisconsin, the nullification of the Fugitive Slave Law was a sign of resolve against the institution of slavery growing in the north before the Civil War.  While Jackson was able to force the Tariff on South Carolina during the Nullification crisis, the Tariff was soon repealed.

While not something that is very useful in and of it self, it is a useful barometer of political will.                

by John Minehan on Wed Jun 19, 2013 at 08:55:40 PM EST

"The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government."

Well, no, not really.  

There was loyalty to the King, up to (and even after) the Declaration of Independence.  However, for several reasons, there was much less loyalty to Parliament.

In the first place, the Colonies were not represented in Parliament.  Secondly, Parliament was less involved with the Colonies, royal governors were appointed by the King, for example.  Finally, some Colonies, notably Virginia, were colonized by Royalist refugees from the English Civil War of the 1640s that culminated in Parliamentary regicide.

England left the colonies alone, or at least more alone than France or Spain did with New France or New Spain.  The Colonies, operated largely independently of both England and each other through the time of the French and Indian/7 Years War, as demonstrated by the failure of the Albany Plan of 1755.

That ended about 1763, when the North Government tried to recoup some of Great Britain's expenditures on the war by direct taxation which was unprecedented.  That war had required unprecedented British military effort and spending and had been started by then-MAJ Washington and a Seneca named  Tanacharison near the Forks of the Ohio, .  Further, chastened by the bloody effort to put down Pontiac's Rebellion and concerned about assimilating a French (and Catholic) population in Canada, the North Government restricted Colonial expansion beyond the Appalachians, one of the main reasons that the Colonies had (to some degree) cooperated with each other and with Britain.

In short, we do not have a national heritage of cooperation or centralization.            

by John Minehan on Wed Jun 19, 2013 at 09:46:37 PM EST

WWW Talk To Action

Terror At Planned Parenthood: Facing The Consequences Of The Far Right's Lies
In the wake of Friday's horrific shootings at a Planned Parenthood clinic in Colorado Springs, we're hearing calls to deescalate the rhetoric around the......
By Rob Boston (0 comments)
Progressives Are Taking Up Religious Freedom Day
In the heat of our political moment, we sometimes don't see how our future connects deeply to our past. But the Christian Right does......
By Frederick Clarkson (2 comments)
Freedom vs. Fear: Restricting Religious Liberty Isn't The Answer To Terrorism
Last week, a community meeting was held in Spotsylvania County, Va., to discuss plans by a group of Muslims who want to relocate and......
By Rob Boston (2 comments)
Christian Right Electoral Hegemony, Rising in the States
This is a revised, updated and retitled post I did on the long term trend of significant political progress of the Christian Right and......
By Frederick Clarkson (5 comments)
Who's Been Naughty, Who's Been Nice?: The AFA Explains It All For You
If you're like me, you've been sitting around anxiously awaiting the release of the American Family Association's "Naughty or Nice" list of retailers for......
By Rob Boston (3 comments)
U.S. Department Of Judeo-Christian Values?: Kasich Proposes New Religious Propaganda Arm
According to some polls, the leading candidate for the Republican presidential nomination is Ben Carson, a retired neurosurgeon who believes that ancient Egyptians built......
By Rob Boston (5 comments)
Scripture Stories: Religious Right Claims About The `Aitken Bible' Don't Hold Up
Tomorrow several conservative members of the U.S. House of Representatives plan to hold a public reading of the Aitken Bible on the East Front......
By Rob Boston (2 comments)
The Tallest Statue in the Nation of an Individual
Many a day I drove on I 45 past the statue of Sam Houston.  The monument to the statesman is the largest in the......
By wilkyjr (1 comment)
Honoring Everyone Who Served: A Veterans Day Reflection
In 1952, a private group sought permission from government officials to erect a large cross atop Mt. Soledad near San Diego. They did it......
By Rob Boston (5 comments)
One Million Maniacs?: AFA Attacks Magazine For Highlighting Family Headed By Same-Sex Couple
I have a daughter named Claire who is 21 years old and working her first job in journalism since graduating from college. I'm awfully......
By Rob Boston (0 comments)
What Catholic Neo-Confederates Don't Want You To Know About Secession
During the summer of 2013 I wrote several posts about Catholic Neo-Confederates. My purpose was to explain the activities of libertarians such as Tom......
By Frank Cocozzelli (10 comments)
Sex And Common Sense: Texas Public School Reconsiders `Chastity' Speaker
A self-appointed expert on sex and relationships won't speak at an El Paso, Texas, high school - for now.Jason Evert runs an outfit called......
By Rob Boston (2 comments)
Two Trials that Impacted American Religion
Silent movie, Birth of a Nation, became the first blockbuster screen phenomena.  Civil Rights groups deplored the production and sought to ban it.  It......
By wilkyjr (3 comments)
The Francis Trajectory.
The recent dust-up over the meeting between Pope Francis and culture warrior Kim Davis has caused the Pontiff's stock to fall somewhat among liberals.......
By Frank Cocozzelli (11 comments)
Taking Care Of Business: Religious Right Group Plans `Religious Liberty' Ratings For Companies
My inbox this morning contained a press release from the American Family Association (AFA). The Tupelo, Miss.-based Religious Right group has exciting news: It......
By Rob Boston (2 comments)

Evidence violence is more common than believed
Think I've been making things up about experiencing Christian Terrorism or exaggerating, or that it was an isolated incident?  I suggest you read this article (linked below in body), which is about our great......
ArchaeoBob (2 comments)
Central Florida Sheriff Preached Sermon in Uniform
If anyone has been following the craziness in Polk County Florida, they know that some really strange and troubling things have happened here.  We've had multiple separation of church and state lawsuits going at......
ArchaeoBob (1 comment)
Demon Mammon?
An anthropologist from outer space might be forgiven for concluding that the god of this world is Mammon. (Or, rather, The Market, as depicted by John McMurtry in his book The Cancer Stage of......
daerie (0 comments)
Anti-Sharia Fever in Texas: This is How It Starts
The mayor of a mid-size Texan city has emerged in recent months as the newest face of Islamophobia. Aligning herself with extremists hostile to Islam, Mayor Beth Van Duyne of Irving, Texas has helped......
JSanford (2 comments)
Evangelicals Seduced By Ayn Rand Worship Crypto-Satanism, Suggest Scholars
[update: also see my closely related stories, "Crypto-Cultists" and "Cranks": The Video Paul Ryan Hoped Would Go Away, and The Paul Ryan/Ayn Rand/Satanism Connection Made Simple] "I give people Ayn Rand with trappings" -......
Bruce Wilson (10 comments)
Ted Cruz Anointed By Pastor Who Says Jesus Opposed Minimum Wage, and Constitution Based on the Bible
In the video below, from a July 19-20th, 2013 pastor's rally at a Marriott Hotel in Des Moines, Iowa, Tea Party potentate Ted Cruz is blessed by religious right leader David Barton, who claims......
Bruce Wilson (1 comment)
Galt and God: Ayn Randians and Christian Rightists Expand Ties
Ayn Rand's followers find themselves sharing a lot of common ground with the Christian Right these days. The Tea Party, with its stress on righteous liberty and a robust form of capitalism, has been......
JSanford (2 comments)
Witchhunts in Africa and the U.S.A.
Nigerian human rights activist Leo Igwe has recently written at least two blog posts about how some African Pentecostal churches are sending missionaries to Europe and the U.S.A. in an attempt to "re-evangelize the......
Diane Vera (2 comments)
Charles Taze Russell and John Hagee
No doubt exists that Texas mega-church Pastor John Hagee would be loathe to be associated with the theology of Pastor C.T. Russell (wrongly credited with founding the Jehovah's Witnesses) but their theological orbits, while......
COinMS (0 comments)
A death among the common people ... imagination.
Or maybe my title would better fit as “Laws, Books, where to find, and the people who trust them.”What a society we've become!The wise ones tell us over and over how the more things......
Arthur Ruger (0 comments)
Deconstructing the Dominionists, Part VI
This is part 6 of a series by guest front pager Mahanoy, originally dated November 15, 2007 which I had to delete and repost for technical reasons. It is referred to in this post,......
Frederick Clarkson (2 comments)
Republican infighting in Mississippi
After a bruising GOP runoff election for U.S. Senator, current MS Senator Thad Cochran has retained his position and will face Travis Childers (Democrat) in the next senate election. The MS GOP is fractured......
COinMS (3 comments)
America's Most Convenient Bank® refuses to serve Christians
Representatives of a well known faith-based charitable organization were refused a New Jersey bank’s notarization service by an atheist employee. After inquiring about the nature of the non-profit organization and the documents requiring......
Jody Lane (4 comments)
John Benefiel takes credit for GOP takeover of Oklahoma
Many of you know that Oklahoma has turned an unrecognizable shade of red in recent years.  Yesterday, one of the leading members of the New Apostolic Reformation all but declared that he was responsible......
Christian Dem in NC (2 comments)
John Benefiel thinks America is under curse because Egyptians dedicated North America to Baal
You may remember that Rick Perry put together his "Response" prayer rallies with the help of a slew of NAR figures.  One of them was John Benefiel, an Oklahoma City-based "apostle."  He heads up......
Christian Dem in NC (5 comments)

More Diaries...

All trademarks and copyrights on this page are owned by their respective companies. Comments, posts, stories, and all other content are owned by the authors. Everything else 2005 Talk to Action, LLC.