A reply to secessionists and nullifiers
I recently wrote an article in Human Events called “Secessionists and nullifiers won’t succeed,” in which I made both a historical and practical argument against secession and nullification. I also called the two ideas “unconstitutional.”
Dr. Thomas Woods, author of “Nullification: How to Resist Federal Tyranny in the 21st Century,” wrote an article attacking my call against secession and nullification. In it, he rejects my argument against nullification and secession and for why our Federal Union, despite its current problems, must be preserved.
Dr. Woods devotes a large part of his article to condescendingly dismissing my ideas as the product of a “New York Times” way of thinking and my alma mater, UC Davis – a curious choice, given the fact that Woods attended Columbia and Harvard, the schools that produced Barack Obama. Like many with Ivy League diplomas, Woods knows much that isn’t so.
In his article, Woods says that Thomas Jefferson once said, “Should you wish to know the meaning of the Constitution, consult the words of its friends.” So let’s consult the words of the Constitution’s friends, and remember those of its enemies.
In the course of making his case for nullification in both his book and article, Woods adopts the ideas and arguments of the most extreme anti-federalists who tried to prevent the Constitution’s adoption. He misunderstands and misstates the nature of the union, attempts to distort and dismiss the arguments of the “Father of the Constitution” James Madison, and carelessly makes false and unsubstantiated claims about the historical record.
Woods wrote in his article, “The states preceded the Union.” Neither James Madison nor Thomas Jefferson would agree with Woods’ statement.
Woods tries to prove that the states were sovereign before the ratification of the Constitution, pointing to Article II of the Articles of Confederation that says that the states “retain their sovereignty, freedom, and independence.” Woods then says, “they [the states] must have enjoyed that sovereignty in the past in order for them to ‘retain’ it in 1781 when the Articles were officially adopted.”
This is a rehashed argument made by secessionists throughout American history, but it is false, and the very fact that it is false puts a stake in the heart of the “constitutionality” of secession.
In 1825 the Board of Visitors at the University of Virginia adopted a set of resolutions crafted by both Madison and Jefferson. On the required reading list was the Declaration of Independence, which Madison and Jefferson called the “fundamental act of union between these states.” Our country was born as a union on July 4, 1776, before both the Articles of Confederation and the Constitution.
Madison saying that the Union under the Articles of Confederation would be seen as a mere “compact between independent sovereigns” if one does not look “beyond the principles of the compact itself.”
When the Constitution was ratified it created a nation that was, in the words of Madison “Partly federal, and partly national.” The United States is a sovereign nation of sovereign states compounded together. The Constitution created the “more perfect Union” stated in its preamble and bound them to a “single political community” as the historian Harry Jaffa said in his book, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War.
Madison said in Federalist no. 43, that “The express authority of the people alone could give validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.”
Like a man living in the state of nature who surrenders a part of his individual sovereignty to the state in exchange for the guaranteed protection of his natural rights—life, liberty and property—the states gave up a part of their sovereignty to enter the union. A state can no more secede from the union than an individual can secede from a state because of a law he doesn’t like or find “constitutional.”
George Washington, who served as president of the Constitutional Convention, blasted the idea of state sovereignty in a letter announcing the new Constitution to Congress: “It is obviously impracticable in the federal government of these states to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.”
It appears that the author of the Declaration of Independence, the Father of the Constitution and the “Father of the Country” all disagree with Dr. Woods.
Although interpretation of what is constitutional is up to every citizen of the United States, the ultimate decision maker in terms of America’s political system is the Supreme Court. Madison frequently pointed to the Supreme Court as the ultimate tribunal of constitutional interpretation throughout his career, according to Kevin Gutzman, his biographer and a historian that Dr. Woods frequently relies upon. And he clearly saw the value in fighting unconstitutional plans by voting for and supporting those who do wish to maintain the Constitution and liberty.
This was part of my argument that I perhaps didn’t fully articulate in my original article about nullification. I support efforts like the Health Care Freedom Act, which was in part pushed by the pro-nullification Tenth Amendment Center, but only because it creates a challenge to ObamaCare that is settled within the court system. Even the Tenth Amendment Center admits this many of these bills are not actually nullification, and I don’t support the ones that are.
Obamacare is currently under assault by more Supreme Court challenges on the basis of religious liberty and major loopholes in the law itself. Conservatives can fight the unconstitutional Obamacare law without resorting to unconstitutional machinations.
The only condition under which the Founders would have supported secession is the same in which they would have supported revolution. The right to revolt is only activated if fundamental rights, as stated in the Declaration of Independence, have been repeatedly violated and the ability to nonviolently redress those violations does not exist. This was the standard used by American patriots in 1776, but not by, for instance, the Southern secessionists in 1860, who claimed to simply “de-ratify” the Constitution after losing the presidential election in 1860 to Abraham Lincoln. This is unfortunately the same path that today’s secessionists are following.
Secession is a revolutionary, but not a constitutional right, and nullification is no right at all.
Woods then tries to say that secession is constitutional under the Tenth Amendment, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”
Woods claims that “since no power to prevent secession was ever delegated to Congress, and since secession is not prohibited to the states, it remains a reserved right of the states under the Tenth Amendment.”
This is a misreading of the Tenth Amendment; Woods and secessionists misinterpret it as if it read “expressly delegated” rather than just “delegated.” But this reading was explicitly rejected by those who wrote the document itself.
Although Woods glosses over this problem in his article, he tries to address it in his book. He claims that “expressly” was not included because it was incorrectly portrayed by its supporters as in fact meaning “expressly delegated” to the state ratifying conventions. However, according to Forrest McDonald, one of America’s foremost authorities on early American history, the word “expressly” was proposed twice at the Constitutional Convention, and was rejected both times, the second time by an overwhelming 32 to 17 vote.
Woods is basically arguing that the American people were bamboozled by the Framers of the Constitution. This view is consistent with Woods’ ideological alignment with those who opposed the Constitution in 1787, which is certainly his right, but he cannot at the same time claim to understand the “friends” of the document, and his rejection of our Union should not be clothed in the very Constitution which brought it to life.
Woods is similar to the anti-federalists who opposed the ratification of the Constitution and attacked the authors of The Federalist—James Madison, Alexander Hamilton, and John Jay. Woods shows his hand when he cites leading anti-federalist Patrick Henry, who made a dramatic speech at the Virginia ratifying convention in 1788 denouncing America’s governing document. At the First Continental Congress during the American Revolution, Henry said, “all government was dissolved” and that he thought of himself “not as a Virginian, but as an American.” By 1788 Henry had changed his tune.
In a speech at the Virginia ratifying convention on June 5, 1788, Henry damned the Constitution, in part due to the fact that it did not leave the states the ability to nullify laws or secede!
Suppose the people of Virginia should wish to alter their government; can a majority of them do it? No; because they are connected with other men, or, in other words, consolidated with other states. When the people of Virginia, at a future day, shall wish to alter their government, though they should be unanimous in this desire, yet they may be prevented therefrom by a minority at the extremity of the United States.
The founders of your Constitution made your government changeable: but the power of changing it is gone from you. Whither is it gone? It is placed in the same hands that hold the rights of twelve other states; and those who hold those rights have right and power to keep them.
It is not the particular government of Virginia: one of the leading features of that government is that a majority can alter it, when necessary for the public good. This government is not a Virginian, but an American government. Is it not, therefore, a consolidated government?
Similarly to Dr. Woods, Henry later pivoted and claimed to be a great champion of the Constitution and federal union—which he at one point called a “crazy machine.”
The men listening to Henry’s speech at the Virginia ratifying convention heard every attack against the Constitution imaginable, including the fact that the preamble of the Constitution cites “We the People” as the ultimate authority and not “We the states,” another aspect of the Constitution that Dr. Woods seems to be pretty miffed about.
The Virginia convention ultimately sided against Henry, the most powerful man in Virginia besides George Washington, and ratified the Constitution by a vote of 89 to 79. The rest of the states, in the end, unanimously accepted its terms. America would be a government of the people, by the people, and for the people just like Abraham Lincoln later said in the Gettysburg Address when he channeled Senator Daniel Webster’s famous “Second Reply” to Senator Hayne in the nullification crisis of the early 1830’s.
Woods incorrectly wrote, “Webster was considered the clear loser in the Webster-Hayne debate, whether we consider the reaction of the rest of the Senate, the press, or the public at large.”
Webster crushed Hayne in the debate, a fact that was grudgingly conceded by Hayne’s supporters during his own time and verified through the lens of history. Woods’ claim that Webster lost is the product of willful ignorance, sour grapes or lazy historical research.
Webster’s “Second Reply to Hayne”
In his book Woods “proves” that Webster lost to Hayne by citing a Q&A session on the Lew Rockwell website with the historian who worked on the papers of John C. Calhoun, the leading nullifier of his era. No evidence is given, just a declaration that Hayne won. This statement would makes sense from an admirer of Calhoun, who was the president of the Senate at the time and a witness to the debate in which his main acolyte, Hayne, got torn to shreds, even as Calhoun passed him notes.
Don’t just take my word for what transpired. Acknowledgement of Hayne’s loss came directly from James Madison, as well as from most Americans and Hayne himself.
When Webster finished his debate with the enduring line, “Liberty and Union, now and forever, one and inseperable,” which Dr. Woods calls mere “rhetorical flourish”, a southern senator turned and said to him, “Mr. Webster, I think you had better die now, and rest your fame on that speech.” Hayne then said to Webster, “You ought not to die: a man who can make such speeches as that ought never to die.”
Webster’s speech damaged the cause of nullification cause as it garnered universal praise in the North, drew in the support of the West, and even managed to pull in many Southern supporters who were not militant nullifiers.
Both Hayne and Webster sent a transcript of the debate to Madison in hopes of validation from the “Father of the Constitution.” Only one received that validation; Madison said to Webster, “It crushes ‘nullification’ and must hasten an abandonment of secession.”
Many nullifiers and future Confederate secessionists turned on Madison of course, including John Tyler of Virginia, who holds distinction of being the only former president of the United States to serve in the government of the Confederacy. Tyler said of Madison’s Constitution in a February 6, 1833 speech on the Senate floor, “The design of this plan, it is obvious, was to render the states nothing more than the provinces of a great government, to rear upon the ruins of the old confederacy a consolidated government, one and indivisible.”
Woods, like the old Confederate Tyler, lambasts the “one-and-indivisible union” and claims that it, not secession, lead to the Civil War.
Perhaps in the same way that hard-core atheists refrain from saying “One nation, under God…” in the pledge of allegiance, Woods refrains from saying “…indivisible, with liberty and justice for all,” on principle.
Finally, the Virginia and Kentucky Resolutions, written by James Madison and Thomas Jefferson respectively, were used to explain the unconstitutionality of the Alien and Sedition Acts passed by the Federalists in Congress and President John Adams. Like nullifiers of earlier eras, Woods essentially justifies his entire doctrine on these two documents.
In his book, Woods claims that Jefferson’s passing touch upon the principle of nullification, which was actually only in his private notes and not even discovered until six years after his death, was central to his political thought. He also says that Madison, who in 1835 called nullification a “deadly poison,” was for it before he was against it. In his book, Woods argues that Madison, who also claimed that Jefferson would not have supported the nullifiers, turned against his principles during the nullification crisis of the 1830’s.
These resolutions were written in a time before political parties, and were a statement of political values, rather than as actual resistance to the federal government. Though Jefferson mentions making the federal laws “null and void,” he uses this language in preparation for a possible revolution based on a violation of natural rights.
What must be understood is that until Jefferson’s victory in the 1800 presidential election against Federalist John Adams, there had never, in the history of mankind, been a peaceful transition of power from one political party to another. Jefferson and his party were swept into power, and the odious Alien and Sedition Acts were quickly retired.
Forrest McDonald said in his book, The Presidency of Thomas Jefferson, that the Kentucky Resolution was not a part of his “public identity” and that “they were arguments that had been coined in the first instance as matters of political expediency—as heading off what Jefferson regarded as dangerous activity by Federalists—and he never thought of them as sacred principles of government.”
If Jefferson’s passing and private ruminations about nullification are considered sacred by Dr. Woods and the nullifiers, then why not his idea about retiring the Constitution every 21 years, as Jefferson suggested to Madison privately in 1789? Madison, the more level-headed of the two men, walked him off this cliff.
The transformation in Jefferson’s views can be clearly seen in his famous first inaugural address, when he accepts, as Abraham Lincoln once said, “ballots over bullets.”
“We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
Jefferson then said that that his “sacred principle” of government is that “though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”
Much like how American statesmen adapted their views to fit with reality in the years between the Declaration of Independence and the Constitutional Convention, so too did Jefferson in the early years of the republic. It was a triumph of common sense over pure ideology.
America’s internal peace and incredible prosperity relative to the rest of the world have been the product of the brilliant, “partly federal, partly national” system of limited government designed by Madison and the Framers. Dr. Woods spins a clever-sounding tale about how nullification and the constitutional right of secession are exactly what the Founding Fathers intended in 1787. In fact, he sides with those who lost at the Constitutional Convention and has a view of America’s founding documents that those who crafted and ratified it would not share.
Like American Progressives that originally trashed the Constitution before they found it expedient to invoke its name when perusing policies that ran counter to its principles, Dr. Woods is claiming to be the Constitution’s true voice in opposition to those who played the biggest part in making it. Real Constitutional conservatives should reject both the Progressive philosophy of unlimited government and the destructive nullifying/secession doctrines that would tear the Union asunder.