By: Thomas Woods
Evidently the acting Attorney General believes, correctly, that the states have the power to nullify unconstitutional federal laws.
So the usual suspects went berserk, and trotted out the usual nonsense arguments.
I’m especially entertained when law professors speak against state nullification. Why, they didn’t learn this in law school! Which is why, as Kevin Gutzman says, one should never confuse legal training with an education.
What law school students learn are a series of cases, and implicitly the nationalist theory of the Union. The compact theory, developed in detail by the Jeffersonians and which makes far more sense of the historical record, is simply ignored.
Also ignored are the ratifying conventions, which is where James Madison told us the meaning of the Constitution was to be found. John Marshall, in nearly 35 years as Chief Justice, did not cite the ratifying conventions even once.
But there we find assurances that the federal government will have only the powers “expressly delegated” to it, and at the all-important Richmond ratification convention we read that Virginia will be “exonerated” if the federal government should reach beyond the delegated powers.
No wonder the so-called progressives prefer to ignore them.
The fact-free, comic-book version of history we get from the anti-nullification mainstream media and legal profession includes claims like:
— This idea was “discredited by the Civil War.” (As Bob Murphy says, this is like saying the claims of the Plains Indians were “discredited” by the U.S. Army.)
— The “Supremacy Clause” invalidates nullification — as if Jefferson hadn’t heard of the Supremacy Clause. (I’ll smash this one on the podcast.)
— Nullification was used by the southern states to defend slavery — even though (1) there were no antislavery laws for the southern states to nullify, (2) it was primarily northern states like Massachusetts and Connecticut that urged nullification — over unconstitutional searches and seizures, the prospect of military conscription, and the Fugitive Slave Act of 1850, and (3) Jefferson Davis, in his farewell address to the U.S. Senate, made clear he was a foe of nullification: “I hope none who hear me will confound this expression of mine with the advocacy of the right of a State to remain in the Union, and to disregard its constitutional obligations by the nullification of the law. Such is not my theory.”
One commentator breathlessly announced that our acting Attorney General was a “literal Calhounist.”
You know who else were “Calhounists”? Northern abolitionists who defied the Fugitive Slave Act of 1850 and who cited John C. Calhoun by name in so doing.
I’ll be doing a solo episode of the Tom Woods Show on all this in the coming days.
I’d be embarrassed for these people, but not enough Americans realize they’re full of it.
That’s where you come in.
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