Thomas Jefferson’s long-forgotten theory of state nullification may have found an ideal time for a resurgence, as the Tea Party and other groups advocate limited government as a solution to many of our current problems in health care, the economic crisis, our broken educational system, and the relentless expansion of government. The concept of nullification is simple, yet powerful: That individual states can and should refuse to enforce unconstitutional federal laws; and that the states, not the federal government, should have the final word on constitutional interpretation. The return of this “forbidden idea” (as its contemporary advocates sometimes describe it) represents not only an opportunity for small-government groups like the Tea Party to enact substantial change, but it also provides a unique opportunity those who are serious about a Christian social witness in public life to implement the principle of subsidiarity.
It is in this spirit that Dr. Thomas E. Woods, Jr. writes his newest book, Nullification: How to Resist Federal Tyranny in the 21st Century. Dr. Woods, who has authored two publications for the Acton Institute (the award-winning The Church and the Market and the monograph Beyond Distributism), as well as two New York Times bestsellers, now brings back the tradition of nullification into the public eye.
The seemingly radical idea of nullification flies in the face of nearly everything we have learned about the federal government and the Constitution: that federal authority always supersedes that of the states, that the Supreme Court has the final say on interpreting the Constitution, and that the only way to get rid of undesirable federal laws is to either have Congress repeal them or the Supreme Court overturn them.
However, Thomas Jefferson was convinced that if the federal government had a monopoly on interpreting the meaning of the Constitution, then there would be no certain way to constrain an unconstitutional expansion of its power. What if the constitutional system of checks and balances were to fail? What if, counter to the wishes of James Madison, ambition fails to counteract ambition, and the different branches of the federal government are able to cooperate in increasing the central government’s reach? Rather than wait two, four, or six years until the next election cycle, Jefferson thought, a more “rightful remedy” would be for states to simply declare that the laws in question violated the Constitution, and would not be enforced in said states.
He was not alone in this belief, as one can find the practice of nullification in the earliest years of the Republic. Kentucky and Virginia famously nullified the Alien and Sedition Acts of 1798. During Jefferson’s own presidency, northern states employed nullification against the total trade embargo imposed by the federal government. During the War of 1812, northern states once more passed resolutions nullifying any potential federal conscription acts. South Carolina passed resolutions nullifying the 1832 “tariff of abominations.” And in the 1850’s, free states frequently invoked nullification in an effort to combat unconstitutional aspects of the fugitive slave laws. Also interesting to note is that southern states did not invoke nullification to defend slavery.
To some extent, this practice continues today. As the Tenth Amendment Center thoroughly documents, dozens of states seek to propose legislation that would prohibit the federal government from enacting health insurance mandates, enforcing some federal gun laws, abusing the interstate commerce clause, and imposing cap-and-trade regulations, among other things. And though these efforts are still underway, supporters of nullification can already point to one success story: over two dozen states openly defied the Real ID Act of 2005, which imposed federal standards on state drivers’ licenses. Though the law is still “on the books,” so to speak, the federal government has given up on enforcement, due to the widespread and extremely overt opposition.
But what does all of this have to do with subsidiarity? At their core, the ideas of nullification and federalism that Dr. Woods invokes echo many of the same concerns that the Church raises in speaking of subsidiarity and the role of the state in society: that there needs to be a just division of responsibilities between different social orders. Social problems should be addressed at their lowest possible level. An unnecessary usurpation of power by, for example, the federal government, undermines the role that state governments should play in resolving some of their own domestic problems.
This principle is often invoked in religious discussion of public policy. The Catholic Church places such great emphasis on the principle of subsidiarity that the Compendium of the Social Doctrine of the Church lists subsidiarity as one of the four foundational principles of social teaching. The Church not only exhorts us to respect human dignity, respect the common good, and have solidarity with the poor, but also teaches that we should pursue these social goals in the proper context of subsidiarity:
It is impossible to promote the dignity of the person without showing concern for the family, groups, associations, local territorial realities; in short, for that aggregate of economic, social, cultural, sports-oriented, recreational, professional, and political expressions to which people spontaneously give life and which make it possible for them to achieve effective social growth [....]
On the basis of this principle, all societies of a superior order must adopt attitudes of help (“subsidium”) – therefore of support, promotion, development – with respect to lower-order societies. In this way, intermediate social entities can properly perform the functions that fall to them without being required to hand them over unjustly to other social entities of a higher level, by which they would end up being absorbed and substituted, in the end seeing themselves denied their dignity and essential place. (185-186)
One can certainly see a similar spirit in the intentions of the framers of the Constitution: the purpose of this founding document was not to provide a new kind of all-powerful entity lording over the states; rather, the states created the federal government in order to serve them as an instrument for promoting the common good – as the Compendium says, to provide “support, promotion, and development.” To discover this, one need look no further than the preamble of the Constitution:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
In the same way, subsidiarity dictates that higher orders (e.g. the federal government) exist to promote and assist lower orders (e.g. states) in developing and protecting the common good. But a political system in keeping with the principle of subsidiarity should have appropriate mechanisms to ensure that the abuse and usurpation of power does not take place. This makes the need for a revival of nullification all the more urgent.
Today’s Tea Party-ers eye with skepticism the intrusions of the federal government into all sorts of matters: guns, education, charity, health care, business regulation, etc. They clamor for change, and will certainly have a substantial impact on the coming electoral cycle. But advocates of limited government should also reflect on which strategies are most effective at introducing real and substantial change. Both Thomas Woods and Thomas Jefferson contend that waiting for a benevolent Supreme Court, President, or Congress is not the right way. States cannot trust the federal government to police itself. They must take a direct role in reeling back federal power. Nullification is the best way to concretely implement the principle of subsidiarity, restore true federalism, and strengthen a truly Constitutional rule of law.
Acton’s The Birth of Freedom comes to six PBS stations this Independence Day weekend, and AEI’s Enterprise blog has a good post about the Christian foundations of American freedom and The Birth of Freedom: “It’s a good place to start if you’re interested in recalling, learning, or helping others to learn about the deep roots of the freedom we celebrate every Fourth of July. Those roots define, in part, what it means to be an American citizen.”
PBS Airings This Weekend
Tampa Bay, WEDU–July 4th, 9:00 p.m.
Carbondale, Illinois, WSIU/WUSI–July 4th, 1:00 p.m.
San Diego, KPBS–July 5th, 12:00 am (also July 7th, 4:00 am and July 11th 3:00 a.m.)
Baton Rouge, Louisiana Public Broadcasting–July 4th, 8:00 a.m. on LPB2
Grand Rapids, Michigan, WGVU–July 5th, 12:30 a.m.
Syracuse, New York, WCNY–July 4, 3:00 p.m.
Here’s the PBS station finder if you want to thank your station for airing it or find out if your station plans to air it later.
Since reading Rousseau raises a questions on almost innumerable topics, you can imagine that the Q&A after a lecture I gave on Rousseau was broad and varied. Among other things, love, family, and problems with relationships and maturity within modern liberal culture were a recurring theme. Two pieces that came up in discussion were:
1. Karol Wojtyla’s (John Paul II) Love and Responsibility. This is a beautiful book on human love and an antidote to most of the nonsense that goes around on love these days. I highly recommend it, but if you haven’t studied philosophy formally it might be best to skip the introduction on objects and subjects, and instead begin with the chapter, “Metaphysical Analysis of Love”
2. An interesting article by Kay Hymowitz in the City Journal called Child-Man in the Promised Land
The second one provoked quite a bit of response when it came out—I would be interested in hearing your comments.
One more on adolescents that didn’t come up in the discussion, but is worth reading, is a piece from six years ago by Joseph Epstein called The Perpetual Adolescent. Epstein worries that modern life which perpetuates and glorifies youthfulness and adolescense is not only a problem for society, but for human flourishing. He writes:
The greatest sins, Santayana thought, are those that set out to strangle human nature. This is of course what is being done in cultivating perpetual adolescence, while putting off maturity for as long as possible. Maturity provides a more articulated sense of the ebb and flow, the ups and downs, of life, a more subtly reticulated graph of human possibility. Above all, it values a clear and fit conception of reality.
Perpetual Adolescence is a serious problem for a free society since as William Allen says so well–”self-government requires self-governors” and adolescents as we know, no matter their age, are not reputed for self-control.
Daniel Mahoney, professor of political science at Assumption College and lecturer at this year’s Acton University, (find his lectures here) wrote an excellent review in City Journalof Thomas Sowell’s new book, Intellectuals and Society. Sowell argues against the hyper-rationalist tradition of modern intellectuals whose theories tend to be divorced from reality and hostile to tradition and what Michael Polanyi called “tacit knowledge” of everyday people. As Mahoney notes, this has been a recurring theme of Sowell’s work throughout the years beginning with his fine book A Conflict of Visions. Mahoney writes:
Sowell, it’s true, denies being an intellectual, and we must take him at his word. He renews the critique of “literary politics” first limned by Edmund Burke in Reflections on the Revolution in France and Alexis de Tocqueville in The Old Regime and the Revolution. Burke and Tocqueville both observed a new intellectual type: thinkers inebriated by revolution and the dream of a radically new social order, and dismissive of the inherited wisdom of the past. Burke and Tocqueville didn’t hesitate to denounce injustice when they saw it, whether British oppression of Indians and the Irish or chattel slavery in America. But their critiques drew on the best traditions of Western civilization. They avoided the “rationalist” illusion that the world could be created anew. In this spirit, Sowell refuses to judge ideas by their supposed good intentions, but rather by their effects on human beings.
Read the entire review here.
In preparing for an Acton University lecture last week on Christianity and Government (you can listen to it here)
I was reflecting on some of the core differences between a Christian vision of government in comparison to modern, secular visions.
While there is no single Christian vision of government and good Christians can disagree on a host of topics, one of the things that sets apart the Christian vision is a robust vision of the good life and integrated human flourishing directed toward certain ends that are fitting to man as a rational and free creature with an everlasting destiny.
The Christian idea of the good life is one of the reasons why for Christians, politics and the state, while necessary and ordained by God, are just not that important in the way they are to many ancients and modern visions.
Many critics say this is because the Church is focused on otherworldly matters. But this is insufficient. While it is true that the main concern of Christianity is eternal salvation, the Church is very concerned with living in this world—but its vision of the good life is found first in relationship with God, and then in the Church, families, and other associations in the place or places in which a person finds himself. This contrasts with certain ancient visions, or those influenced by the thought of Rousseau, which tend to see a plurality of associations as a dividing force and see man becoming integrated in and through the larger “community” of the state, thus making the state and politics central to life.
For Christians the purpose of politics is to create peace and order under which men can live out their freedoms, their responsibilities, and pursue an integrated vision of the good life. Politics is necessary and important, but by no means sufficient, primary, or the end of life–even life here on earth.
This is the vision of medieval thinkers like Thomas Aquinas and the Reformed theologian, Johannes Althusius, who wrote that “politics is the art of associating men for the purpose of establishing, cultivating, and conserving social life among them.” He called this “symbiotics” and said that “the end of the political symbiotic man is holy, just, comfortable, and happy symbiosis…”
This is why Christians today need to be concerned with the revival of community, private charity, mutual aid societies, strong families, and vibrant churches. But it is also why we must beware of finding community in the state, but I’ll leave that for another post.
For those interested you can find Althusius’ Politica at Liberty Fund, and Acton colleague, Jordan Ballor discusses Althusius’ contribution in his new book Ecumenical Babel just out from Christians Library Press and available at the Acton Book Shop.
More audio from this year’s Acton Lecture Series. In “Virtue and Liberty in the American Founding,” Dr. John Pinheiro examines the American Founders’ understanding of liberty as rooted in a classical and Christian understanding of virtue. His talk touched on the reasons why George Washington argued that public happiness could be attained without private morality and why John Adams wrote that, “[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”
Dr. John Pinheiro is associate professor of history and director of Catholic Studies at Aquinas College in Michigan. He holds a Ph.D. in history from the University of Tennessee. Dr. Pinheiro co-edited volume 12 of the Presidential Series of the Papers of George Washington and is author of Manifest Ambition: James K. Polk and Civil-Military Relations during the Mexican War. His publications also include articles on Washington and the Jacksonian Era in academic journals. Consulting Editor for the Polk presidency at the University of Virginia’s Miller Center of Public Affairs, Dr. Pinheiro also hosts “Past is Prologue” on WPRR, 1680AM, Grand Rapids. His scholarly interests include American identity and evolving American views on republican citizenship.
Acton Media’s second documentary makes its public television debut Sunday, May 2, with a 3-4 p.m. airing on Detroit Public Television (HD channel 56.1). The film trailer is here.
The new issue of Religion & Liberty, featuring an interview with Nina Shea, is now available online. A February preview of Shea’s interview, which was an exclusive for PowerBlog readers, can be found here.
Shea pays tribute to the ten year collapse of communism in Eastern Europe, which began in the fall of 1989. The entire issue is dedicated to those who toiled for freedom. Shea is able to make the connection between important events and times in the Cold War with what is happening today in regards to religious persecution. Her passion on these issues is unmatched. Her experience and expertise on issues of religious persecution definitely shine through in this interview. I encourage readers to pay attention to her work.
Mark Tooley offers the feature piece for this issue, “Not Celebrating Communism’s Collapse.” It is an excellent look back at the religious left and their grave misjudgments about the true danger of Marxist dictatorships. Tooley declares, “Communism’s collapse did further discredit the Religious Left, and the political witness of mainline Protestantism and ecumenical groups like the WCC and NCC has arguably, and thankfully, never quite recovered from the events of 1989-1990.” Tooley is president of The Institute on Religion and Democracy in Washington, D.C. and author of Taking Back the United Methodist Church.
In this issue I offer a review of Steven P. Miller’s Billy Graham and the Rise of the Republican South, which appeared first on the PowerBlog.
“Repressions” is a series of voices that speak to the danger of an ideology that reduces man to merely a material creature, while violently squelching the spiritual. Because of the danger of an all controlling state, the Framers of the U.S. Constitution considered religious liberty the “first freedom,” the foundational freedom upon which others are built. They understood that religious freedom is the hallmark to a truly free and virtuous society, and is also meant to act as an important wall from encroachment by the state into our lives.
The issue also pays tribute to a well known figure, especially among evangelical Christians, Francis Schaeffer (1912-1984). Scaheffer, who spoke out against the godless totalitarian state also powerfully reminds us: “I believe that pluralistic secularism, in the long run, is a more deadly poison than straightforward persecution.”
This week, Acton’s research director Samuel Gregg appeared on EWTN’s The Abundant Life for an interview titled, “Socialism: Threat to Freedom.” In the course of an hour, he discusses the philosophical origins of socialism, its various manifestations, and the manner in which its modern expressions are slowly eroding our liberties in America and Western Europe. The interview, conducted by Johnnette Benkovic, may be found at The Abundant Life’s Web site.