The Nature of the Union: A Response to Mark Pulliam

This piece was originally published at the Independent Institute.

Mark Pulliam is a good fellow. He is retired from big law and regularly writes for publications such as Chronicles and the Law and Liberty Blog. Pulliam often sends me links to his publications and 99 percent of the time, I love his material. I enjoy my correspondence with him. However, I must take issue with his recent article entitled Nullification of the Constitution, in which Pulliam advocates for a supreme national government that dictates to the states. He argues that libertarian constitutionalists such as Tom Woods and the folks at the Tenth Amendment Center are off base for suggesting that the states may nullify/defy/reject federal dictates.

Pulliam sets forth his main principle as follows: “My objection is limited to the notion that state officials have the authority to declare federal actions (laws, regulations, policies, and court decisions) ‘null and void‘ if the state deems them unconstitutional.” He further complains that nullification is “secession-lite” and has no place in American constitutionalism. He plants his flag on the Supremacy Clause: “states [cannot] interfere with the enforcement of federal law or unilaterally override the federal courts’ interpretation of the Constitution and federal statutes.” The heresy of secession and nullification, he tells us, “undermines our union and misreads the Constitution.”

Pulliam’s fundamental problem is that he embraces Joseph Story’s view of the union, i.e., that it was formed by one people—the American people—and not by the people of the several states. Pulliam probably would agree with Lincoln’s claims that the union preceded the independence of the states and thus is paramount. This Story/Lincoln view of the union might make for chest-thumping Fourth of July speeches, but it has little grounding in American history.

Suppose the union existed prior to the Declaration of Independence or came into existence as a result of the Declaration. Why did the Continental Congress insist that the states confederate through the Articles of Confederation? If a union already existed, a formal confederation would be silly. Moreover, Article III of the Confederation describes it as “a firm league of friendship.” Such a relationship can exist only between sovereign and independent states—it is an ultra vires description if some binding, preexisting union existed. 

One should also examine Article IV, which endeavors “to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union.” These words recognize the existence of thirteen different peoples, not one amalgamated American people.

Further proof debunking the Story/Lincoln view of the Constitution is the Treaty of Paris (1783), in which George III recognized the 13 states to be “free
sovereign
and
independent states . . . [so that] he
treats
with
them
as
such.” As indicated by the peace treaty, the official outcome of the Revolutionary War was the independence of 13 states, not the autonomy of some preexisting union.

Moving to the Constitution of 1787, it had to be ratified in separate state conventions. The Framers understood that the ultimate sovereigns—those charged with making, altering, or abolishing fundamental law—were the people in their 13 separate preexisting communities. However, they also realized that some political communities might decide to remain outside the new union. Accordingly, once nine states ratified the Constitution, it then went into effect among those states. The other four could join the union or chart their courses. Rhode Island and North Carolina did not ratify until long after the other eleven. They thus remained outside the union for a time.

But what about the Preamble? Story often pointed to the Constitution’s Preamble, which declares, “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” The initial draft of the Preamble listed the 13 states separately, supporting the view that each state’s ultimate sovereigns had to approve the Constitution. This was changed to its current form when the Framers realized that all 13 might not ratify. However, there is nothing in the records of the Philadelphia Convention to indicate a change in theory. Hence, the Preamble does not help the nationalists.

Suppose the people of the several states—in their highest sovereign capacities—are the parties to the constitutional compact. In that case, nullification and secession are grounded in American history and the American constitutional tradition. They are not crackpot ideas, as Pulliam paints them, to be disregarded. Indeed, secession is at the heart of American independence. The 13 colonies removed themselves from the jurisdiction of the Mother Country (that is, they seceded). Secession is the bedrock of our political existence.

But what about the Supremacy Clause? In Federalist No. 28, Alexander Hamilton did not see it as a barrier to the states interposing to stop unconstitutional federal acts.

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

All the Supremacy Clause really declares is that statutes made pursuant to the Constitution are supreme law throughout the union. The real question is who has the final word on whether a statute is consistent with the Constitution. Pulliam believes that the Supreme Court is the final arbiter of the Constitution. This cannot be if the people of the several states are the principals and the federal government is merely their agent. An agent cannot have greater authority than his principal to determine the scope of the agent’s power. The agent would be rendered greater than the principal!

Pulliam next turns to the Principles of 1798, found in the Kentucky and Virginia Resolutions, and attempts to dismiss them as a minority report. The Resolutions were responses to the Alien and Sedition Acts. In passing the Alien and Sedition Acts, according to Jeffersonian Republicans, Congress greatly exceeded its delegated powers and thus infringed upon the powers remaining with the states. The Sedition Act, at its heart, made criticism of John Adams’ administration a crime punishable by a fine and imprisonment. This usurpation threatened the right to self-government because the people had delegated, for example, no power to Congress to legislate regarding speech. In fact, the First Amendment specifically prohibits Congress from legislating on that subject.

I love the opening words of Jefferson’s Kentucky Resolution:

Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general Government for special purposes,—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . .

As for the remedy, Jefferson and Madison pointed to nullification and interposition, declaring the Acts void and of no force. The Kentucky Resolution averred that:

Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.

This same thought process is found in Jefferson’s Summary View of the Rights of British North America, in which Jefferson declared multiple acts of the British Parliament “void” because “the British parliament has no right to exercise authority over us.” Although neither Kentucky nor Virginia actually nullified a federal law, the legacy of the Resolutions is much more than that.

Pulliam argues that the Kentucky and Virginia Resolutions are not really precedent because they were written before the Supreme Court established judicial review in Marbury v. Madison (1803). “The Supreme Court had not yet established the doctrine of judicial review, pursuant to which laws can be challenged on appeal on the grounds they violate the Constitution. This did not happen until 1803 in Marbury v. Madison.”

Judicial review was not some new doctrine created by John Marshall. Numerous state courts had exercised judicial review before 1803. In other articles, I have chronicled the rise of judicial review and have shown that it was not some shiny new toy made by Marshall. The doctrine of judicial review has nothing to do with the question of who has final authority to interpret the constitutional compact. Marbury, rightly understood, merely holds the judiciary is a co-equal branch of government and should take note of the Constitution when interpreting a congressional statute.

In the early national period, the principles of the Resolutions gained acceptance throughout the United States. During conflicts between state and national authorities, reports and resolutions adopted by state legislatures, messages from state executives, opinions of state courts, and speeches of leading citizens all ring with the words of the Kentucky and Virginia Resolutions. In my book Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (2004), Chapter 4 discusses in detail how states across the union appealed to the Resolutions and embraced them. I discuss specific examples in Pennsylvania, New England, South Carolina, and so forth.

Pulliam ignores all this and points to James Madison, who in the 1830s denied that he and Jefferson were serious about declaring a federal law void. Madison is a poor witness because he lied and got caught in a lie. Madison denied that Jefferson had ever used the word “nullification” in his draft of the Kentucky Resolution. However, when a copy of the original draft was located with “nullification” in the text, it showed that Madison was dishonest. At this time in his career, he was promoting himself as the Father of the Constitution and wanted to distance himself from his bold stances in the 1790s.

Pulliam moves on to pragmatics and states that “Nullification proponents refuse to face the fact that the doctrine of nullification has never worked in America. Not in 1798, not in 1832–33.” This is not correct.

When South Carolina nullified the two protective tariffs in 1832, it followed the Jeffersonian model. South Carolinians opposed protective tariffs, as Jefferson did the Alien and Sedition Acts, on constitutional grounds. They believed that the powers delegated to the general government were trust powers rather than plenary and were consequently limited to the object of the trust. Thus tariffs could only be levied to raise revenue for the legitimate expenses of government. The people of South Carolina called a special convention to exercise ultimate sovereignty. After somber deliberation, the convention issued an ordinance of nullification, voiding the tariffs.

A political compromise was reached in the Senate whereby tariff rates were lowered. South Carolina was satisfied with this good-faith effort and rescinded its nullification ordinance. South Carolina did not get the full loaf it wanted—no protective tariffs—but did get half of a loaf in the form of reduced duties. I’d call this a win. Yes, Andrew Jackson took a reckless and bellicose stand against South Carolina. He threatened an invasion of the state, but this never happened because of the Senate’s work.

What about 1798? The Resolutions led to the “Revolution of 1800,” during which the Democratic-Republicans won a 24-seat majority in the House of Representatives, and Jefferson was elected to the presidency. Upon taking office, Jefferson suspended all pending prosecutions under the Sedition Act and pardoned those convicted under the unconstitutional legislation. I’d call that a win for liberty, too.

Mark Pulliam’s bottom line is this: “In a republic, the solution is constructive civic engagement, not futile resistance—unless, of course, the goal is disunion.” It seems that constructive and civil engagement implies working within a system that is biased against many in middle America. With the complex and ongoing issues related to demographic changes and political power dynamics, meaningful engagement appears to be increasingly difficult. One political side, in particular, appears to have strengthened its influence in national affairs with the rise and popularity of socialist ideas, which reduces the motivation for broader dialogue.

Issues such as the evolving understanding of gender, the rights of minors, and the prioritization of various freedoms make it difficult to find common ground. I don’t mean to sound pessimistic, but without significant changes, it feels like the rest of the country may follow California’s lead in these areas.

The only hope “normies” have of living in a society that our parents/grandparents might recognize is the use of inventive measures that include nullification, secession, and other theories. The odds of taking America back or “making it great again” are about the same as hitting the mega million jackpot- in theory, it is possible. Still, in reality, it is not likely. (Yes, I’ll still buy my proverbial lottery ticket and dream, but I have no plans of giving up my day job either).

While saving the country is a long shot, we might be able to retain a life of “the good” in some states situated in flyover country. This is where real hope is found. Montesquieu was correct when he taught that republican government cannot exist on a large scale. This history of the United States proves his dictum. Mark Pulliam can engage in civic discourse with the victimhood coalition (and I wish him success). While he does that, I’ll take my stand with Mr. Jefferson and the Principles of 1798. Could this bring the disunion that Pulliam dreads? Yes. And that might be our best chance of salvaging something of the American experiment with self-government.