A young libertarian friend of mine Thomas Woods is, no doubt, making a fortune on his latest book, Nullification: How to Resist Tyranny in the 21st Century, recently published by the Republican-affiliated Regnery Press. Those who are promoting this work are for the most part GOP publicists and FOX-news celebrities. The relevant historical part can be summed up as follows. At the time of the founding, such statesmen as Thomas Jefferson and James Madison believed that states retained residual powers beyond those specified in the Constitution. Among these non-enunciated powers was the right of state legislatures to interpose themselves between the people and a federal law they believed to be improper. The interposing legislature could then nullify what it considered to be an arbitrary assertion of federal power.
Not all of our early leaders believed in such a right; and advocates of a strong federal union such as Washington, Hamilton, and Adams clearly opposed the nullification doctrine. Still it persisted -- and not only in the slave-holding South but even more conspicuously in New England. There the pro-English Federalists, once having lost power to the Jeffersonian Democrats in 1800, warmed to the idea of greater state power, and particularly after the Democrats propelled Americans into the (at least in New England) unpopular War of 1812. Those who appeal to the nullification doctrine have generally been regions or groups that have lost in their bid for control over the federal government, and that generalization is as true now as it was in the past.
Although I personally wish there were more power-sharing among levels of government, I consider the current appeal to nullification to be a childish ploy. Unlike the early Democrats, the GOP has never been a states-rights party. It became a national force for decades as the party that crushed Southern secession in the Civil War, and then it pushed the federal government toward overseas expansion, high tariffs, and Prohibition. I can’t think of any Republican president in my lifetime who worked to increase state power at the expense of the federal government, due allowance being made for toothless tax-sharing gimmicks put forth by some Republican presidents. Now we have a Supreme Court Justice, Clarence Thomas, who invokes the Tenth Amendment and who speaks about state power that should never have been ceded to the federal union. But Thomas’s presence on the court is not the result of his predilection for the Tenth Amendment. He is there because George Bush Sr. wished to appoint a Black who would not be on the judicial left.
Thomas is therefore not in his position because Republicans have consistently embraced a states right position. Until Obama became president, they probably didn’t even know they were going to move in this direction. But once the healthcare plan passed, the GOP suddenly rediscovered Jefferson and other anti-Federalists of the 1790s. If the GOP is out of power long enough, it may even rediscover the virtues of the Holy Roman Empire. But if the GOP succeeds in taking back federal power, then Tom’s book may land up as a strictly libertarian reading choice.
What makes the current appeal to nullification sound particularly ridiculous is the condition of the state governments that are being encouraged to demand independence. Most states have become wards of the federal government, which deal with their cost overruns by taking federal largess. Not only have these states happily yielded their power to the federal government. They solicit federal grants for their unwieldy public sectors and deeply indebted counties, while also milking state taxpayers. Among the GOP dignitaries I hear preaching states rights is the governor of Texas Rick Perry. While his friend George W. Bush was the chief executive, Perry showed no particular concern about the power that the feds were grabbing. His administration has fallen into the hole (with an 18 billion dollar shortfall). Like Arnold Schwarzenegger in California, the Texas governor has not effectively controlled the public sector. But with Obama and the Democrats ruling the roost, Perry has become a second Thomas Jefferson, demanding that we shackle federal politicians and restore rule to the states.
Now let’s turn to New Jersey governor Chris Christie, who is taking on public sector unions with a vengeance. My grandson, who attends school in West Orange, tells me that unionized teachers hate the new governor, who ran as a Republican in Name Only. Teachers rail against him for insisting on slashing the pensions of public employees. This controversial figure, who looks like an extra from the Sopranos, is exactly the kind of chief executive New Jersey needs. And he persists in his course although his popularity is plummeting in a very leftist state, in which he may be a one-term governor. In sum, Christie is a principled opponent of a bloated, arrogant public sector. And I doubt that he’s heard of that eighteenth-century doctrine his fellow-Republicans are rediscovering while out of power.