Controversial New Book Seeks to Revive Nullification

Thomas Woods argues that “Constitution has become non-issue to federal government”

According to Rasmussen Reports, constituent hostility to the federal government is at an unprecedented high, and twenty state attorneys general, including Louisiana’s, are challenging the constitutionality of the 2010 federal health care reform. However, in his latest book, Nullification: How to Resist Federal Tyranny in the 21st Century, Thomas Woods argues for more than voter scrutiny and pleas to the United States Supreme Court. He advocates the rediscovery and use of state nullification against unconstitutional federal laws.

An American historian and senior fellow with the Ludwig von Mises Institute, Woods was recently interviewed by the Pelican Institute. (Click here to listen to the interview – 31 minutes.) This gave him the opportunity to explain precisely what nullification is in the American context, why the federal government appears to be without limit in its powers, and how nullification has been and still is used effectively to maintain constitutional limits. He also responded to what he sees as the leading red herrings against states legally disobeying or interposing themselves against the federal government.

In Woods’ view, the federal government is so far from its constitutional restraints that the Constitution has become a non-issue. He believes the contempt is bipartisan and so open that congressmen do not even address the matter. One example he gives is from a reporter who questioned House Speaker Nancy Pelosi on where she found constitutional authority to impose a universal health insurance mandate. Her response: “Are you serious. Are you serious?” Yes he was, but she shook her head and took the next question.

The problem, he believes, boils down to the lack of an independent arbiter between the states and the federal government. When there is a disagreement over the constitutionality of state or federal laws, there appears to be a widespread, and in his view faulty, assumption that the federal government is the sole adjudicator. So the federal government has no problem nullifying state laws as unconstitutional, but in recent times few states have been bold enough to strike down unconstitutional federal laws.

Since the Supreme Court is a branch of the federal government, Woods would consider pleas to the court as analogous to asking a criminal to police himself. Its members are nominated by the President and approved by the Senate, which have little incentive to confirm anyone who would wish to rein them in. That is why many members of the Supreme Court have adopted the “living constitution” idea, working off the general welfare, interstate commerce, and necessary and proper clauses.

Woods details his rebuttals to arguments for expansive interpretations in his book, and he gives a brief synopsis in the interview. His conclusion, though, leaves little wiggle room. As far as he is concerned, the deliberate reinterpretation of these clauses gives leeway for the federal government to do just about anything – “precisely what the American colonists fought against in the American Revolution… If we’d like to spit in the faces of our ancestors who fought for American independence from the British, we should by all means advocate a ‘living Constitution.’”

For The Hayride’s review of Nullification, click here.

Click here to read the full article.

Fergus Hodgson is the Capitol Bureau Reporter with the Pelican Institute for Public Policy. He can be contacted at [email protected], and one can follow him on twitter.

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