Lost in the Woods: Nullifying Nullification
Posted by Amphictyon | September 03, 2010 at 7:58AM CST
History professor and scholar Tom Woods has done it again; come up with an excellent apologia for the Libertarians. Unfortunately, as is always the case with Libertarianism -- while the theory is encouraging, the practice always falls short. Men are not angels.
Having just read his latest book, Nullification: How to Resist Federal Tyranny in the 21st Century, I've posted the following book review on Tom's page at Amazon. Certainly not to disparage the author -- Tom Woods is a workhorse for liberty, and obviously an excellent scholar -- but to show that now as then, Madison was right and Jefferson was wrong.
A Great Defense...of the Indefensible, | By |
David M. Zuniga (Texas) - See all my reviews |
Full disclosure: My book, This Bloodless Liberty came out just before Tom's, and offers Madison's solution, whereas Tom's book offers Jefferson's.
Tom Woods is a brilliant Roman Catholic PhD scholar, whereas I am a plain Christian, engineer and for four decades, student of history and of constitutional and tax law. We are told never to discuss religion or politics in polite company; but of course Christians and scholars do nothing else. At this fork in America's road to possible ruin, it is incumbent on every Christian and scholar to dig as deep as required; to lay aside every prejudice and predisposition to get at truth.
Tom Woods' book is the most comprehensive defense of nullification (the indefensible) that I have read, thus I think every student and opponent of nullification should read it. In Part II, Chapter IX, Judge Abel Upshur's 1833 exposition is the typical petitio principii that characterizes the book. At least in 1833, men were willing to have their premises corrected, if fallacious. On page 222, having laid down many pages of premises begging the question of federal abuse of power, Judge Upshur says, "Perhaps you can show me that these principles do not lead to nullification? I shall be happy to be undeceived." Oh, that such teachable men existed today in academe! Judge Upshur is guilty of two logical fallacies: begging the question, and the Fallacy of the Excluded Middle. Nullification is NOT the best answer to tyranny, as I prove in This Bloodless Liberty.
It is gracious and constructive of Amazon to allow me, another author with a competing thesis, to post a review of Tom's wonderful book. Tom Woods is a valuable voice in the public square just now, but ideas have consequences. Amazon indicate that some people who bought my book also bought 'Nullification'; excellent, for the two books illustrate how one problem can invite almost antithetical solutions. James Madison's answer to federal tyranny -- interposition, as tactically exercised in the AmericaAgain! Indictment Engine(TM) -- can ARREST federal tyranny for the rest of history. Thomas Jefferson's proposed answer, nullification, cannot. Viz:
Mr. Woods characterizes nullification as a state "defying the federal will". True, but that's the reaction of an inferior, not proaction by a sovereign. The AmericaAgain! Indictment Engine(TM) is a mechanism for the regular legal interposition of the State Courts over individual members of Congress for torts and crimes.
Interposition -- in this case, law-enforcement action to stop further crimes -- is the action preferred by Madison, the author of the Constitution. Because it stops further crimes rather than always simply reacting to them after they are committed, interposition -- law enforcement -- is far superior to nullification, the action preferred by Jefferson.
Tom Woods asks the wrong question throughout his book because he chose the wrong horse in Thomas Jefferson, who is more famous than James Madison. Yet Madison designed most of the Constitution; he knew whereof he spoke, in opposing nullification and preferring interposition.
In simplest terms: nullification is running away from a bully. Interposition is stopping the bully from doing further damage. Nullification is defiance of a superior, where interposition is law-enforcement by a superior, against an inferior. It's more beneficial to society for law-enforcement to end the career of a criminal, than for one family to lock its doors to the criminal's predations. While that family may 'resist' the criminal, this does not benefit the neighbors who will be the next victims.
Nullification presents an atomized array of sovereign States, scurrying for cover. Wasting millions of man-hours on every crime pulled by Congress is senseless. But more importantly, nullification does little to reinforce rule of law. As I said in a recent blog article entitled "America's Illegals", the most ubiquitous, powerful, and fearsome Illegals in America are those in Congress. Against such, law enforcement is far preferable to the states scurrying away, one at a time.
The law is clear, but because the federal judiciary has willfully misrepresented the Supremacy Clause for 200 years, brilliant jurists like Judge Andrew Napolitano and scholars like Tom Woods Jr. beg the question of FEDERAL interpretation and judicial review, ignoring the innate supremacy of STATE judiciaries, as a matter of their standing as parties to the Supreme Law. All that is lacking is proper legal tactics and procedure to stop Leviathan by cutting him up into his accountable components: the individual actors in Congress who, en masse, violate our Supreme Law with impunity.
For even a grammar-school child should know that in all matters of the federal government, the Constitution is the Supreme Law. As I explain in Chapter 3 of This Bloodless Liberty, the states are the sovereign parties to this Supreme Law. But there is a higher legal authority still. Stanford Law School Dean Larry Kramer reminds us of this fact in his superb book, The People Themselves: Popular Constitutionalism and Judicial Review.
But what even Dean Kramer does not mention (being of the 'federal law guild', as he admitted to me) is that since We The People are the creators of federal government via that Supreme Law, the Supremacy Clause's stipulation that "the Judges in every State shall be bound thereby" means that when We The People bring a criminal complaint to a State Judge against a member of Congress who is our fellow state citizen, who is operating illegally in Congress with our money, this is an intrastate crime; venue jurisdiction is the STATE Court, not federal. The criminal may happen to be violating the Constitution as a member of Congress, but by the nature of the case and standing of the parties, these cases CANNOT be a federal court matter.
With the AmericaAgain! Indictment Engine(TM), the Gordian knot is cut. Complicit federal courts must remain on the sidelines; true, primordial federalism finally has its day in the sun.
The AmericaAgain! Indictment Engine(TM), as described in This Bloodless Liberty, and to be further detailed in my upcoming book, Liberty's Engine -- is the answer that Americans have been seeking, to end the crime spree in Washington D.C. and bring federal power back within its legal bounds set in the Supreme Law. It brings 150 years of federal arrogation under the sure hand of law enforcement in the logical venue: between the servant (corrupt member of Congress, violating what he swore to obey and defend) and his sovereign (We The People, at home). N.B.: Nullification can accomplish no such thing.
America -- our system of law, public ethics, societal hierarchy and government -- is the specific product of New Testament Christianity. Not Roman Catholic canon law (witness any Catholic country and see the difference), not of Jewish belief or folkways (America was demonstrably NOT founded a 'Judeo-Christian' civilization, but a Christian one, pace the Neocon horde). As against Muslim, Buddhist, or Hindu belief (witness the abject poverty and hopelessness of cultures living under those systems of religion) there is no comparison with this society rooted on the New Testament gospel of Christ.
This is not a 'religious' pronouncement, but an historical, ethical, and economic one. Ideas have consequences. Our system of government was designed for self-governing, sovereign citizens to do their duty; to exercise their sovereign POWER over their governments, with all attendant diligence. If only a tiny minority (3-5%) will do so in the criminal courts of our 50 States from now on, the game will change from night to day. The first two American centuries from the settlements at Jamestown and Plymouth were illustrations of the efficacy of this popular sovereignty. Nullification is an illustration of its antithesis.
As a defense of the nullification theory, Tom Woods' book stands above any other I've read, thus my 4-star rating for a prolific, erudite author's work. But state legislatures and politically-motivated governors and attorneys general can no more restore popular sovereignty than the existing mafia in Congress has done so. That job has always fallen to the People themselves. I will make this case further in my upcoming book Liberty's Engine, but the thesis has been laid out in my last book, which summarily nullifies nullification -- as James Madison did.
© 2010 AmericaAgain! Trust. David M. Zuniga, P.E. is founder and CEO of the operating trust within AmericaAgain! Trust, a perpetual charitable trust ushering in the end of politics and the beginning of informed self-government in the age of the Internet. The trust's recruiting website is found at www.JoinAmericaAgain.com and its main website with blogs, forums, podcasts and more is found at www.MyAmericaAgain.org.
