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Originally posted at Talk to Action.

The emerging influence of Thomas J. Woods and other neo-Confederate ideologues within the Catholic Right was the focus of the first post in this series. They are advocating the failed concepts of secession and the nullification of federal statutes and court rulings.   The second post in the series explored why nullification matters and how it can lead to localized tyranny and theocracy.  To complete the quartet, we will discuss first how proponent's claims for historical justification are simply wrong, and then detail the Constitutional argument against nullification.

As I previously reported, among the Catholic Rightists beating the drum for nullification are Pat Buchanan, Thomas DiLorenzo, Thomas Fleming and Thomas E. Woods, Jr.  All four advocate states' rights, a seething resentment of Abraham Lincoln, and as Rachel Tabachnick recently highlighted, Woods is a key member of the pro-secession League of the South, Traditional Catholicism (save possibly DiLorenzo) and Austrian-school, libertarian economics.

Known as "tenthers" they argue that individual states, citing the Tenth Amendment to the federal Constitution, have the right to nullify federal legislation or court rulings of which they disapprove -- on quite a range of subjects.  Some have recently argued that states should and have the right to block federal health care reform; refuse to enforce federal firearms regulation and some cases, as a justification for imposing Christianity as an official state religion. Gov. Sam Brownback of Kansas - an Opus Dei convert to Catholicism -- has already signed several nullification bills into law, inviting a federal court challenge. U.S. Attorney General Eric Holder has written to Brownback to inform him that his legislation is unconstitutional.  Indeed, nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.

As dubious as nullification may sound to liberals, let's note that even the conservative Heritage Foundation calls it “Unlawful and Unconstitutional.” The libertarian Cato Institute is only slightly less absolute, citing a limited use for nullification, but cautions:  “Can a state impede federal authorities from enforcing their own law if the state deems the law to be unconstitutional.  The answer is “No,” although more radical nullification proponents would disagree.”

States Did Not Precede the Union

The claim by Woods and other latter-day John Calhouns that nullification is consistent with the original intent of the Constitution is rooted in bad history. They assert that the states constitute a higher authority than any of the branches of the federal government because the individual states existed before the national government was created.  However, a fair reading of American history debunks that myth - and by extension, the foundation of the entire nullification argument.

When the notion of secession was at its height, Abraham Lincoln argued for a sturdy form of federalism.  “Plainly," Lincoln declared, "the central idea of secession is the essence of anarchy.”   Lincoln was soon proved to be correct. In the closing days of the Civil War, Alabama and Georgia were so protective of their notion of state sovereignty that they threatened to secede from the Confederacy.  Even Jefferson Davis, the president of the Confederacy admitted, his movement “died of a theory” -- and that theory was states rights.

The fallacy that “the states preceded the federal government” argument is exposed by simply considering the history of the thirteen colonies.  At the time of the revolution each were Crown colonies, which is to say that the King of England appointed their governors.  Royal charter founded indeed most of them. New York (then including whole swaths of territory that would become New Jersey) was wrestled from the Dutch by the British, and added to her American holdings.  Little more than a century later, the British military might engaged in a war with France and her Native American allies to protect the colonies (in what we now call the French and Indian War.) The British victory enlarged the American colonies.  Massachusetts gained control of what is now Maine while Virginia expanded into what is now West Virginia.

The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government. The common thread that ran through the complaints of each American colony in April 1775 was that they were being taxed and bullied by that central entity without any true representation in its decision-making. And when they initially revolted they did not do so advocating for their rights as Rhode Islanders or New Yorkers or as Georgians but as their rights as British subjects. They were simply demanding a say in the Parliament that was legislating without them being able to debate or vote on any law that adversely affected their general welfare.

When the Continental Army drove the British from Boston in March 1776, units from Maryland, Pennsylvania and Virginia while being commanded by a Virginian, George Washington, joined the Massachusetts Militia. They answered to a Continental Congress, not individual state governments. More importantly, when independence was declared it was done with purpose of severing their common governing relationship with London and replacing it with our own central authority. This was the cause that transformed into the creation of a nation.

The argument that the states precede the federal government truly falls apart with the addition of the post-Revolution states. The states that were created out of the Louisiana Purchase were made possible with the common funds from the United States Treasury. Individual states were also carved out from United States' Territories. The same is true of Alaska.  In the case of what are now our Southwestern states, those descended from territories seized from Mexico by a nationally organized war (a conflict opposed by then-Congressman Lincoln). Many of the upper western states were created from territories similarly seized from Native tribes such as the Sioux and Cheyenne.

Finally, it is worth noting that whatever our political outlooks, few of us see the founding of the Jamestown and Plymouth colonies as the origin of individual sections or states. Rather, we see them as the beginning of our identity, warts and all, as an American People (the longer history of Native Americans, notwithstanding).  We celebrate Thanksgiving Day, for example, as a national tradition, not one unique to Massachusetts.  Likewise, we celebrate July 4th as the beginning of the American Revolution, not the secession of the individual original thirteen colonies from the British Empire.  Rather, we all revolted in unison and reliance upon each other to create a new nation.

Thomas Woods and his ilk are simply wrong about American history; the states did not precede either a central government or our common identity as a people.

Originally posted to Frank Cocozzelli on Mon May 20, 2013 at 04:46 AM PDT.

Also republished by Community Spotlight.

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Comment Preferences

  •  Excellent refutation (10+ / 0-)

    of the 'states preceded Union' argument.  Thanks!

    •  Wrong question anyway. (0+ / 0-)

      BTW they were independent from Britain when they ratified the Constitution.

      The question is how far we go with subsidiarity, the idea of making decisions at the most local level and closest to the people as possible.

      If we hadn't had the original sin of slavery, we could have had more state independence and they might be able to, for example, set their own drug laws.

      Would it really have been wrong for states to overrule the Alien and Sedition Acts? The Federalist Papers argued that state power would protect people from federal tyranny. The South proceeded to ruin that idea for everyone forever, of course.

      Freedom isn't free. Patriots pay taxes.

      by Dogs are fuzzy on Mon May 20, 2013 at 11:06:11 AM PDT

      [ Parent ]

  •  Excellent post (3+ / 0-)
    Recommended by:
    Frank Cocozzelli, The grouch, gfv6800

    I have been mulling over the issue of the existence of states altogether, for a while now.  Have started a daft of a diary, but I get to a wall, probably due to my own prejudices.

    I really don't feel that much is helped in this country with us having 50 "states" now.  The world is a far different place than it was at the beginning of the 19th century, and aside from the economic impact of 50 states employing a bunch of people I really can't think of any benefits the country gets (as a whole) from this arrangement.

    I understand the history, and that our country is named "The United States of America", but in the last few decades the "United" part has seemed strained, and the "States" part has been making things more complex.  Healthcare reform is a prime example, as is the consistent chipping away at Roe vs. Wade.

    But in a country that has almost 100 times the population, in a world far more inter-connected and complex, is our society served or hindered by having 50 separate sovereign states in a supposed "Union", or is it past time to reconsider what is meant by "States Rights"?

    •  More mobile, too. (1+ / 0-)
      Recommended by:

      I've lived in three states other than my birth state and that's not even considered a lot now. It would have been unusual in 1789.

      Thought experiment: should Utah and Louisiana have the same liquor laws?

      Freedom isn't free. Patriots pay taxes.

      by Dogs are fuzzy on Mon May 20, 2013 at 11:08:57 AM PDT

      [ Parent ]

  •  Exactly (1+ / 0-)
    Recommended by:
    Frank Cocozzelli

    With a wrinkle. The governmental units in British North America after the end of the French and Indian wars were distinct and separate parts of the British Empire - separate countries, if you will. People like Ben Franklin spent a lot of time convincing Parliament that there was NO WAY these separate entities which were SO different would ever find common cause. Here's Thomas Pownall, a former royal  governor of Massachusetts (1757-1760), speaking about the colonies in 1764:

    “The different manner in which they are settled, the different modes under which they live, the different forms of charters, grants and frames of government,  . . . will keep the several provinces and colonies perpetually independent of, and unconnected with each other, and dependent on the mother country
    No formal organization until 1774, to figure out what to do about what Parliament and the King were doing to Massachusetts on behalf of the British East India Company.

    -7.75, -8.10; . . . Columbine, Tucson, Aurora, Sandy Hook, Boston (h/t Charles Pierce)

    by Dave in Northridge on Mon May 20, 2013 at 06:36:57 AM PDT

  •  Hi Frank, thanks for this excellent history lesson (3+ / 0-)
    Recommended by:
    Ahianne, The grouch, Frank Cocozzelli

    It makes the 'pre-existence of national government to individual states' crystal clear.  Thanks for that.

    It is a little like asserting that "I" existed before my parents came into being............  The states got their 'physical birth' from the national unity, with the drawing of their boundaries as well as, in the several instances you have cited, the actual 'claiming/seizing' of that land under nation might/purse.

    I am still puzzling what the end game for Opus Dei is to destabilize this country (because all of this talk of secession/nullification is destabilizing, if anything,) with their highly placed 'operators' in the Supreme Court and Congress?  I repeat, what gain does Opus Dei have in throwing this country into another civil war, if that is where this heads?

    BTW, FYI, the two links in the first paragraph (to Talk to Action website) go to a page on TTA, which says:

    Sorry. I can't seem to find that story.
     Seems that the link to your stories on the TTA website is down?

    Take care of yourself.  We depend on your excellent work!

    We Must DISARM THE NRA The next life you save may be ONE OF YOUR OWN!

    by SeaTurtle on Mon May 20, 2013 at 07:01:36 AM PDT

  •  Articles of Confederation (1+ / 0-)
    Recommended by:

    I would think that a nullification discussion would consider the Articles of Confederation which was the national government established after the end of the Revolutionary War and the enactment of the Constitution.

    •  The states did precede the federal government (0+ / 0-)

      The Declaration of Independence (1776) states: "...these United Colonies are, and of Right ought to be Free and Independent States..and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

      Article IV of the Constitution of the Commonwealth of Massachusetts (1780) reads: "The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America in Congress assembled."

      The "United States of America in Congress assembled" was the name of the confederation established by the Articles of Confederation and Perpeutal Union(1777); it was not a national government as we understand the term today, but "a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare". The confederation had no chief executive, no courts, and no power to levy taxes.  It left control of interstate commerce and trade policy to the states.

      The state of Vermont was not a party to the Articles and maintained its independence until 1791, when it was admitted to the new federal Union as its fourteenth state. Other states that were once independent nations include the former Republic of Texas and the former Kindom of Hawaii.

      The Constitution of 1789 was certainly the creation of the states, taking effect only when two thirds of them had ratified it, and not the other way around.

      History teaches us that no human institution is perpeutal or  indissoluble. Insofar as their protests reflect the feelings of the peoples they represent, the nullifiers deserve to be heard and their grievances taken seriously. Otherwise, our "one nation indivisible" may go the same way as King George's empire.

  •  Um, really??? (1+ / 0-)
    Recommended by:

    The origins of each "colony" is rooted in the British Monarch appointing governors, yes.

    When the American Revolution started each colony had it's own parliament or colonial government.  When the Revolution ended, each colony was independent.

    They agreed to the Articles of Confederation out of safety against other world powers, not to "create a central governing authority".  That was never the intent from the very beginning.  The created one out of necessity.

    I seriously can't believe you haven't actually read any history here.

    Please don't take my word for it, will the Library Of Congress do?

    The Continental Congress adopted the Articles of Confederation, the first constitution of the United States, on November 15, 1777. However, ratification of the Articles of Confederation by all thirteen states did not occur until March 1, 1781. The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments.
    What occurred 10 yrs later, AFTER THE STATES were recognized AND established as independent sovereign entities, was the Constitutional Convention.  That CC was called to renegotiate the nature of their arrangement.

    You really must review our actual history.  This isn't a debatable argument.  The States existed prior to the Articles of Confederation and the current Constitution.

    The reasons you ascribe for our Revolution are fallacious and incomplete.

    Now, this very site sent out an email blast a week or so ago on how we were winning against federal laws being negated in State after State.  

    I can't remember the actual subject at this moment and I must have read the email and deleted it.  

    Nullification IS legitimate in our Constitutional Republic.  We have two separate governments, State AND Federal.

    If anyone has that email, could you post it here for us?

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Mon May 20, 2013 at 07:47:13 AM PDT

    •  This Says It All, Gerrilea. (1+ / 0-)
      Recommended by:

      "Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

      Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

      But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."

      •  Frank, our nation did not come into existence (0+ / 0-)

        after the Civil War.

        Lincoln's elegant words aside, history cannot be rewritten even by him.

        -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

        by gerrilea on Tue May 21, 2013 at 03:14:29 AM PDT

        [ Parent ]

    •  See also . . . (1+ / 0-)
      Recommended by:

      the nullification crisis of 1832.  I think we have been done with this nullification nonsense for a long time in this country - especially since 1M + died to settle it from 1861-65.  Or are you one of those that wants to revisit those settled questions?  

      You go ahead and read history - all of it - including those parts and accounts you don't agree with, and then come back to discuss.  

      "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

      by ByTor on Mon May 20, 2013 at 11:25:42 AM PDT

      [ Parent ]

      •  Insulting. (0+ / 0-)

        This very site sent out an email blast this past week on how States were moving against Federal Abortion laws.  DEFACTO NULLIFICATION.

        I guess it's okay if its an issue we all agree with then?

        And hon, I have read history, I've forgotten more than you'd ever know.

        The "nullification crisis of 1832" ended with The Compromise Tariff of 1833

        -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

        by gerrilea on Tue May 21, 2013 at 02:39:44 AM PDT

        [ Parent ]

        •  You didn't answer my question (0+ / 0-)

          So, I'll ask it again - "[A]re you one of those that wants to revisit those settled questions?"


          "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

          by ByTor on Wed May 22, 2013 at 11:43:37 AM PDT

          [ Parent ]

  •  Nullification only wanted w/Dem president (8+ / 0-)

    I find it absolutely hilarious that there's a right-wing movement that wants to secede from or otherwise delegitimize the Federal government.  I think it has something to do with a Democrat being at the head of the thing.

    Because when Dubya was in power, anyone who didn't treat him like a God-Ordained Ultimate Sovereign was "un-American".

    Now, I won't go as far as to say that the Bush-worshippers and current Fed-haters are the same individuals.  But it's flatly obvious that the only reason nullification is getting any traction at all is because of the Democratic control of the executive branch.

    If a Republican gets into the White House, watch as those same state governments wheel 180 degrees, prostrate themselves before Washington and praise His Almighty GOP Greatness.  And anyone who doesn't will be an un-American traitor who should be investigated.


    •  Maybe more complex than that (1+ / 0-)
      Recommended by:

      Or maybe it's just really simple: people want whatever they want, and will make up bullshit to justify things.

      Here in the state of Washington, we have recently legalized recreational marijuana. Pot stores are springing up all over - there are some roads that have them every hundred yards - they're going to outnumber the Starbucks soon.

      Of course these are all "medical supply" stores, wink wink - since the state is still figuring out exactly how to manage recreational sales.  But all the "medical supply store" owners are lobbying the state government and getting ready to open up non-medical storefronts (who could have ever imagined such a thing?).

      A fly in the ointment (ointment? must be hash oil...) is that current regs prohibit pot stores within short distances of schools and parks.  This has pissed off the sellers, who complain that the best retail locations will be off limits.

      Their latest outrage: "medical supply store" owners recently received a letter from the Feds warning them they can't have their stores too close to schools and parks.  Oh, the humanity!  Not having the kids right next door cold take a bite out of their profits - Oh, the humanity! Their response?

      "The state wants legal pot.  The feds can't tell us what to do.  We have state's rights.  It's unfair for the federal government to shut down our marijuana store just because it's a block from an elementary school. Who are the feds to tell us what's legal and what's not?"

      So be careful - it's not only the right wing idiots who cry "states rights!" - left wing idiots do it too, if it suits their agenda.

      •  True enough. (0+ / 0-)

        All those who would advocate unlimited states rights should really take it upon themselves to understand what that means (and the full history of the question) before advocating for nullification.  Too many died in previous considerations of that question to do otherwise.  

        As for legalized marijuana, the writing is on the wall - it is only a matter of time, and that will be accomplished within the current federal framework of laws.  No need to step on the graves of those who died opposing the pernicious doctrine of unlimited states rights to accomplish that.  

        "[L]et us judge not that we be not judged." Abraham Lincoln, March 4, 1865

        by ByTor on Mon May 20, 2013 at 11:43:40 AM PDT

        [ Parent ]

    •  Is "Democrat" the issue? (0+ / 0-)

      I don't remember this talk under Clinton, perhaps I wasn't paying enough attention. Was it there, or are we looking at a case of "The President is a CLANG!"?

      Freedom isn't free. Patriots pay taxes.

      by Dogs are fuzzy on Mon May 20, 2013 at 11:11:54 AM PDT

      [ Parent ]

  •  They.... (0+ / 0-)

    Don't get to have it both ways.  You don't get the benefits of the club while refusing to obey the ground rules.  

  •  3 words: The Civil War. NT (0+ / 0-)

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Mon May 20, 2013 at 02:43:04 PM PDT

  •  Kind of an interesting historical (0+ / 0-)

    flip flop going on here.  It was the Federalists (Washington, Hamilton, Adams etc. ) who started off the new national government by trying to dampen down "states rights". These are the founders most admired by today's GOP/Tea Partiers, which actually doesn't make sense.  One big example of their historical heroes' consolidation of federal power was the Whiskey Rebellion, when Washington was having none of state or regional rights to refuse to pay federal taxes that were needed to pay off the war debt.  Old George sent in the troops and that was the end of it.  The message being that revolutions are good for some, but once you are in power, they are not.  It was actually the Republicans, Jefferson and Madison who hung more on the side of state sovereignty because they didn't trust the New England merchant class to have any understand of the issues of the agricultural south.  

    However, when the Bill of Rights was written, the Second Amendment was actually a bone thrown to the states to give them the right to form their own militias mainly for the purpose of putting down slave rebellions. However, the message was mixed by the fact of Article 1, Section 8, 15 and 16 which essentially threw the militia issue back under the federal government's wing.

    So in my view and from what I've read, our founding fathers did not have a unified view of federal vs. state's rights, and one could pull out arguments for either side.

    That being said, the "tenther" movement people must have visual problems. They can't seem to read beyond that Amendment.  They are just plain wrong and pretty silly.

    I'm not clear on what the religious connection is to all of this since state's rights people come from all kinds of backgrounds.


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