Over the past few years, but especially during the past several months, there has been an extraordinary revival of interest in Thomas Jefferson’s idea of state nullification of unconstitutional federal laws. According to Jefferson, if the federal government were to monopolize constitutional interpretation, it would of course interpret the Constitution in its own favor and consistently uncover previously unknown reservoirs of additional federal power. Only a fool would consent to such a system, thought Jefferson, and the peoples of the states were not fools.
Needless to say, nullification is nowhere to be found on the three-by-five card on which our betters have written out the range of allowable opinion, so it has been greeted with the usual hysteria from predictable quarters.
The latest, and to my mind most laughable, example comes from Sean Wilentz, a history professor at Princeton, writing in The New Republic. The subtitle of Professor Wilentz’s article “The Essence of Anarchy” is “America’s long, sordid affair with nullification.” What Professor Wilentz omits in his alleged history of that “long, sordid affair” could fill an entire book, and indeed just weeks ago I announced the impending release of my own book on precisely this subject. (Nullification will cover the origins and theory of nullification, its forgotten nineteenth-century history, modern applications of the idea, and much else.) For now I’ll note the New England states that appealed to nullification (or interposition) against President Jefferson’s embargo, against what they considered the unconstitutional calling up of the New England militia during the war of 1812, against the use of military conscription, and against a law providing for the enlistment of minors.
Pretty “sordid,” huh?
In addition to other examples, we might also refer to the legislature of Wisconsin, which as late as 1859 was quoting from Jefferson’s Kentucky Resolutions of 1798 in opposition to unconstitutional aspects of the Fugitive Slave Act of 1850. Sordid, I tell you. Here’s the text of a handbill that circulated in Milwaukee in the 1850s:
All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom – the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY – as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 1850, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS’ HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o’clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand.
What’s that? A “state league” to defend “state sovereignty” on behalf of human freedom against the “flagrant usurpations” of the federal government? How sordid!
Do you suppose Professor Wilentz teaches that at Princeton?