Archive for July 7, 2010

Make No Mistake: Nullification Effects Disunion

First as tragedy, now as farce.

RedState is advertising and otherwise boosting a new book by Thomas Woods: “Nullification: How to Resist Federal Tyranny in the 21st Century.”

In the wake of the Fourth of July, it’s only proper to ask: what pale spectre of patriotism is this, that (here and otherwise) dishonors the legacy of our Founders by perpetuating a hopelessly flawed equivalence between those who rail against the actions of a duly constituted government, and those who shed blood against true tyranny? And what cruel mockery is it to, in the same breath, invoke their sacrifices in defense of a concept whose very nature rebuts union?

I’d be tempted to pick up this book, if only for a good laugh, but as noted, the author’s gracious enough to provide a free chapter. Let’s have a look (download here so you don’t have to get on his listserv to read it).

Blissfully, our free chapter provides a fair preview of the author’s argument: nullification, as he imagines it, is a form of judicial review, but without the judicial review. The states decide what laws are unconstitutional, and then ignore them (p. 3). Woods imagines collusion between the three branches of government, and so interposes into the federal separation of powers scheme a fourth actor: states, with an unwritten and absolute veto over the other branches. In support of this power, Woods drafts the entire originalist argument for judicial review (Federalist #78, etc.), but omits the careful balance within which that power is permitted to exist, and which figures prominently in Hamilton’s defense of it. To defend this selective reading, he points us to unattested, unsourced historical counterfactuals (If only Adams hadn’t appointed Marshall! [p. 6.] But he did. Move on.). This isn’t constitutional theory; it’s historical fiction.

Armed with this knowledge, the rest of Woods’ book can be safely ignored, because there are vital questions it cannot (and doesn’t attempt to) answer. Imagine a situation where nullification produces a live, justiciable controversy: Congress constructs a statutory regime creating otherwise valid, constitutional duties, perhaps flowing from state citizens qua their states, or from the state itself, but in either case to the federal government. “SOCIALISM!!!!”, you say. Just so! A state legislature “nullifies” the law, citing constitutional objections, and the state, or its citizens, refuse payment accordingly. The Attorney General sues to collect on the “nullified” obligation. How does a federal court rule? What’s the legal “test” for nullification? When can a state nullify a “bad” law? What makes a law “bad”?

There’s no answer. Nullification is the rare case of a true slippery slope: one cannot draw a principled line, based on objective factors, historical or otherwise, between isolated nullification, and nullification run amok, the import of which is disunion, or at least a shadow of union, at odds with everything we’ve built over the last 234 years. Woods doesn’t even try to solve this lurking problem; in fact, the absence of meaningful review of state decisions seems to be the point. In exchange for the loss of judicial review — which conservatives regularly tell us is its own form of tyranny, due to the awesome, uncheckable power of unelected judges (?) — Woods would give us 50 truly uncheckable supreme courts, lacking any connection to the constitutional text or its history, and bereft of those limits the Founders put on the federal bench, in plain black and white. All because healthcare reform is scary.

I’ll never understand a patriotism that rushes to the flag anytime the state directs her guns outwards, to prosecute enemies real or imagined, but abjures all notions of national fidelity when she turns her attention inwards, to improve the lives of her citizens, just because it might cost a buck or two. At the end of the day, isn’t nationalism at least as much about what we build together, as whom we tear apart?

Well, it should be.