Category Archives: Point/Counterpoint

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “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,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

Point: Nullification Is The Civil Disobedience of Federalism

This post is a part of our continuing series Point/Counterpoint. I am taking the position that state Nullification of federal law is a legitimate action, and Doug Mataconis will respond tomorrow with a rebuttal. In memory of James Kilpatrick, we’ll dedicate this installment to him.

In federal politics, states are party to an uneasy compact with other states under the guise of a superior government.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As such, they cede many powers to that national government, but one must think that they do not cede all of their own powers. Something must be held in reserve. The question is what? After all, this “Supremacy Clause” Constitution only grants supremacy to those laws made in pursuance of the Constitution itself — anything not permitted by the Constitution must not be considered to be Supreme. The real question, then, is who decides what is Constitutional?

Since 1803 and John Marshall, half of that question has been decided. The US Supreme Court is the arbiter of what is, and what is not, Constitutional. Further, a critical tool of state protection against the overreaches of the national government, the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment. Thus, the only legal method of appeal to Constitutionality available to the States is appeal to the Supreme Court, a body that hasn’t found many overreaches of national government since the New Deal.

Nullification, the doctrine that states can disregard federal laws, declaring them unconstitutional, is a provocation somewhere between fighting a battle at the Supreme Court level and secession.

Appeal to the Supreme Court is basic and need not be addressed here. Secession is a far more drastic measure, far more controversial, and an area where I believe Doug and I disagree, so it does require some treatment. Secession is often equated with violence, and treated as “violent revolution”, but I would say that most instances of violence were continued by the government trying to retain their subjects, not by those trying to withdraw. In the American Revolution, nothing that I’ve seen suggests that had the British peacefully withdrawn their troops, the colonists would have had any cause for continuation of violence. Even in the US Civil War, it is unlikely that, had the North allowed the South to secede, that the South would have ridden on Washington to impose slavery back upon the North. Secession is not overthrow of the government, it is withdrawal therefrom. Of course, Doug and I agree that, whether they had the right or not, the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery. But the South’s secession was no different than the American Revolution in that they were NOT attempts to overthrow a government outside of the territories that wanted their freedom, they could have been peaceful separations. The breakup of the Soviet Union is a good example. While it was only peaceful because the Russians didn’t have the power to hold it together, it was a peaceful secession nonetheless.

So at this point we’ve sketched out two responses to potentially unconstitutional overreaches by a national government. The first is the relatively weak appeal to the Supreme Court — asking the government to self-regulate. This is a difficult option. A Senate prior to the Seventeenth Amendment might take seriously their “Advice and Consent” role in judicial nominations to only nominate those who would respect state sovereignty and Constitutional limits, but that ship has sailed. In its wake, it’s left a court with an expansive view of national government authority. Secession, on the other hand, is all-or-nothing. And while it may not be a violent act, history has shown that it often will be. As Doug pointed out in all three posts I read of his referencing secession, Jefferson in the Declaration of Independence said that taking to arms should not be done “for light and transient causes”.

Leaving only these two options is a fool’s game. Secession will only be legitimate in the face of absolutely unconscionably abuse, and appeal to the judiciary is impotent and unlikely to succeed [and further, the structure of the direct election of Senate and the Supreme Court nomination process makes it unlikely this will change]. If one wants to give the national government limitless power, asking only that it police itself, having only these two options is the roadmap…

…which is why we need nullification.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

I’ll give an example. Here in California, we have legalized marijuana for medical purposes. This is in DIRECT contradiction to the Controlled Substances Act, an act that empowered the regulation to be written that declares marijuana a Schedule I drug — with no medical use whatsoever. This is nullification in action. This is civil disobedience. California is not denying the Federal government’s power to enforce the drug laws — but it is denying its compliance with those laws and its assistance to the Feds in such power.

What will the result of this action be? Well, this (and potentially the follow-on Proposition 19) forces the people of California address the question of marijuana. Several states have followed on with their own medical marijuana laws. We now have a body of medical marijuana users which can be called upon to testify that marijuana does have medical use. We have families who have watched their loved ones, battling horrible diseases which sap their appetite, who have been able to eat enough to keep their strength. Hopefully the result of this action will be the government backing down and taking marijuana off Schedule I.

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Undoubtedly, Doug will respond that nullification can be used for nefarious purposes, much like secession. I cannot disagree. Arizona is willing to prove that, as if there haven’t been enough historical examples already. Nullification is a tool, and it is the one who wields the tool who is important.

The national government appropriates power to itself, and it has built structures to weaken or remove legal impediments to that power. In response, we need illegal, but peaceful, impediments. Non-violent resistance carries with it a moral weight that legal Supreme Court wrangling never will, and that is a tool that we in the fight for liberty do NOT want to cede.

Nullification may not be legal, but it is legitimate.

CounterPoint: Yes, Virginia, States Really Do Have Rights

This is a segment in The Liberty Papers’ continuing “Point/Counterpoint” series. This post is the rebuttal to my co-contributor Michael Powell’s post here, making the point that “states’ rights” are an antiquated and poisoned concept.

When I saw Michael’s post this morning, I was a little bit surprised. I was expecting him to make the argument that States’ Rights don’t exist. In fact, I was waiting for one specific statement that I’ve heard from those who attack the notion of states’ rights many times over. Thankfully, two comments in, commenter John222 made the point:

States don’t have rights, individuals do. Better would be to say, “The interest of the State in protecting the rights of it’s citizens”.

This is a common statement among libertarians, and although I’ve probably used it in the past, there have been points where I’ve become troubled by it.

Michael made some very important points in his post, and these are points that must be answered. However, to begin, we must have an understanding of the origin, the nature, and the limitations of states’ rights. Only by setting this groundwork may I refute Michael. But first, a caveat. In order to make the points I must make, I must work with two critical assumptions:

  1. Natural rights of individuals exist.
  2. Constitutional democratic government is legitimate.

For those that have read my previous work, it should be understood that I believe neither of these assumptions. I am a philosophical anarchist, and while I can construct a non-theistic basis for natural rights theory, I view them as artificial constructs, not incontrovertible truths. However, we must work within the framework we have, and thus I will concede these points for the purposes of this post. For the purposes of discussion and comments, please try to take these two premises at true, and if you have a problem with the argument flowing from those premises, attack the argument.

Let’s start at the beginning:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Here’s the base. Natural rights are the area where we say to government: “Over this line you may not tread.”

Individuals have certain natural rights, and they empower governments to help them protect these rights. The statement that “States don’t have rights, only individuals do” does not account for what we consider the social contract. Individuals enter into an implicit contract with their government, offering to entrust some of the rights they hold in the “state of nature” to their government in order for cooperation and protection of those rights. Those governments do not gain *new* rights as governments, but they inherit the rights of those they are designed to protect.

Natural rights theory does not hold that individuals give up their rights to the government, the rights are retained. It is best to be understood as a legal contract — individuals freely, by exercise of their rights, create their government. They voluntarily empower their society — their government — to protect their rights. A government that reaches beyond the legitimate power of protection of those rights, as Jefferson himself states, deserves no longer our assent or our support. If said government treads beyond the lines defined above, that government has violated the social contract.

“Government”, of course, is not a singular entity. Governments are hierarchical, competitive, and numerous. In many cases, we are under the jurisdiction of several governments — entities within entities. In many cases, the governments we live under must make compacts with other governments outside our territory — treaties — in order to help complete the tasks which we have empowered them. Each of these agreements are contracts or compacts. Rights of the citizens of the government are not abridged, they are retained — at least if the government empowered to act on behalf of its inhabitants are legitimate.

How, then, do we describe the relationships between these levels of government or between competing governments? How do we define the lines over which they may not tread? Let’s take one example: borders. What are borders, other than the territorial lines defining the government which protects the rights of its inhabitants? What do we call a government’s relation to its borders? Territorial rights! Now, of course, these rights are not that of “the government”, but they are the territorial rights of which the individuals supporting that government have ceded to their government to protect.

Likewise, how do we define our US Government’s relationship to the United Nations and the nations of the world? We use the term sovereignty: the inviolability of our government to the others of the world — the statement that our government has “rights”, i.e. lines over which those other governments may not tread.

The nature of the United States Government and its relationship to its constituent States is a tricky one, historically. The United States Constitution — our governing document — is a compact between states, not a contract directly between the federal government and the people. Historically, the people of the several States entrusted their governments — the entities to which they had entrusted their rights for protection — to form a federal republic. One may support the claim — at least until 1865 — that the States retained sovereignty, and that they had contractual RIGHTS as constituent members of that federation.

These rights are not inherent to them, as States. These rights are the rights entrusted to them by their inhabitants, and the rights they are protecting are not the rights of the State as State, but a collective bargaining arrangement to protect the rights of their inhabitants. Regardless of how you define this, though, the rights exercised are contractual rights exercised by the States on behalf of their inhabitants. The States drew a line, and told the United States Government “over this line you may not cross.” For the United States Government to cross that line would allow the State, if it so chose, to exercise its sovereignty and break the contract — secede.

These rights are not without limit, though. We previously stated that government is created by individuals in order to secure their natural rights. But those rights are retained. A government which does not secure those rights — a government in fact which violates them, is not a legitimate government at all and may be disbanded. Likewise, federal governments or supra-national bodies do not have super-natural powers — they are still only as legitimate as the rights of their constituent states (and thus the rights of their constituent inhabitants). If the United States Government attempts to violate the sovereignty of the states in order to violate the natural rights of its constituent inhabitants, it is just as illegitimate as if the individual state takes that action…

…which finally brings me back to Michael’s post!

Specifically, this country is, and always has been, a work in progress. I said it was illegitimate for a federal government to violate the sovereignty of its constituent States and if a federal government were to do so, it would justify secession. However, while Michael says he wouldn’t cry crocodile tears if the South had been allowed to secede, the South’s secession would not have been justified under States’ Rights theory. Why? Because slavery — a State deliberately violating the natural rights of its inhabitants — is not a legitimate government, and thus the Southern States did not have true sovereignty. A government which violates the natural rights of its inhabitants as a matter of design cannot be granted the authority to act on behalf of its citizens.

The Fourteenth Amendment, in the wake of the Civil War, finally codified this statement. Prior to this, the United States Constitution did not have a method for the Federal government to impede the States from abridging the natural rights of its citizens. (Of course, one can infer from this that the Civil War was illegal, but the destruction of slavery in the South can hardly be described as immoral). It should be stated that Michael’s quote from George Wallace was not truly a defense of States Rights. Those rights of States to discriminate by law against their citizens had long been removed via the Fourteenth Amendment. If he truly believed that the right of the State was inviolable (I doubt this to be the case — I personally think it likely that “States’ Rights”, like patriotism, just happened to be the last refuge of a scoundrel), he was simply wrong.

Michael is correct, of course, that in the intervening century, the term “States’ Rights” was used by all manner of racists, supporters of Jim Crow, and people who are “defiant of settled law”. In American politics, terminology tends to have this problem — terms become appropriated by unsavory characters, and the terms themselves pick up unsavory connotations. We “libertarians” constantly bemoan the fact that our previous label, “liberal”, as appropriated by big-government Democrats. We had to abandon the term completely and build a new one. States’ Rights has some of that connotation, but by definition that doesn’t not negate the concept of those rights.

The term “States’ Rights” may, in fact, be coming into a renaissance. As Michael points out, individual states are fighting the Feds on medical marijuana, and California — the state where we both live — has a ballot measure in November to legalize marijuana entirely. This is in direct contravention of the Controlled Substances Act, but more importantly, this is a state protecting its citizens from the overreaches of Washington!

But again, look at the nature of government. A State government that violates the natural rights of its inhabitants is acting illegitimately. At the same time, a Federal government that violates the natural rights of its inhabitants is acting legitimately. In this case, it is right for the inhabitants of a State to pool to their rights collectively — using their States’ rights — to protect themselves from the Federal government on their behalf. Individuals often have little recourse against the Federal leviathan. They need all the help they can get.

Either way, I think that Michael did not prove, as I thought he would attempt, that states don’t have rights. He did make some valid points that the terminology of states rights had been hijacked for the last century by those State governments who wished to protect their racist fiefdoms. But he belied his own point by bringing up the fact that the very same terms are also being used by States to protect the liberty of their inhabitants from Federal overreach.

Point: “State’s Rights” A Misnomer

This is a post in our continuing “Point/Counterpoint” series, where TLP contributors and/or guest posters debate a topic. In this installment, Michael Powell argues against the existence of “states’ rights”. Tomorrow, Brad Warbiany will defend states’ rights, and his post can now be found here.

During the twentieth century, there were several confrontations between federal authorities and those proclaiming “state’s rights.” The most notable were those of Arkansas Governor Orval Faubus, in 1967, who called on his state’s National Guard to block several African American youths from attending high school and Alabama Governor George Wallace, who literally stood in the way of troops sent by the Kennedy Administration to escort students Vivian Malone and James Hood (both instances being unforgivable offenses in the Deep South) in 1963. The state was blatantly violating not only individual rights of its citizens but also the legal authority of the U.S. Supreme Court and the executive branch.

The “right” for the state to discriminate against the individual in defiance of federal law (and human decency, which is another matter and not a concept that is very popular in Alabama or other deep southern states) was precisely what George Wallace cited explicitly in his speech at the University of Alabama on June 11, 1963:

The unwelcomed, unwanted, unwarranted and force-induced intrusion upon the campus of the University of Alabama today of the might of the Central Government offers frightful example of the oppression of the rights, privileges and sovereignty of this State by officers of the Federal Government. This intrusion results solely from force, or threat of force, undignified by any reasonable application of the principle of law, reason and justice. It is important that the people of this State and nation understand that this action is in violation of rights reserved to the State by the Constitution of the United States and the Constitution of the State of Alabama. While some few may applaud these acts, millions of Americans will gaze in sorrow upon the situation existing at this great institution of learning.

Personally, I would not cry crocodile tears if the South had been let go during the Civil War. My ancestors fought in the Confederate Army but my personal life has been filled with people of color. The South has not simply been racist; it has been the closest region in the Western World to pre-industrial feudalism. Its ugly history of public executions, terrorism, exclusion from employment and education of massive portions of the population (including not just people of color but poor whites, women and those who stood against the Southern Christian traditionalist grain), intellectual rejection, ethno-nationalism, proud ignorance and aggressive religiosity is more reflective of the worst regimes in the Middle East than the enlightened industrial democracies of Western Europe, North America and Asia. Just as is the case with the Middle East, the rich natural resources of the South have been the primary reason for keeping the impoverished backwater area in the sphere of the United States.

If it hadn’t been for slavery, racism and the South, the “state’s rights” argument may have more standing validity. Unfortunately, for those who bring back its spectre it brings to mind Jim Crow laws, lynchings, segregation and war. Just as the swastika, which actually has a relevance to Buddhist philosophy, has been defiled by the actions of German National Socialism, “state’s rights” has been defiled by the actions of Southern political actors.

For issues in which “state’s rights” would be a logical defense, especially regarding marijuana, where states like California seek to protect the individual rights of drug users in defiance of prohibitionist federal intervention, I have to beg the question: Why is it an issue of state governance and not simply the right of the individual to do as he wishes?

This isn’t simply a historical, theoretical argument either. States are still today violating individual rights, with the federal government acting as an intervening force of justice. Arizona’s immigration law, SB 1070, which effectively legislated racial profiling and declared war on undocumented workers who are critical to the American economy, is being set upon by the Obama administration’s Justice Department.

I have worked in Latin American foreign policy, so I would like to add that, while I stand in firm opposition to SB 1070, I understand completely why it was implemented. We are in really bad economic shape, as I surely don’t have to inform anyone here. That is exacerbated by the perception by people that don’t understand economics that Hispanic immigrants are “stealing” their jobs and the horrendous mob violence that has been implemented on the border by drug cartels. I reject Kantian ethics that proclaim motivations to paramount to results, however, and a mob of fearful people hardly ever makes the right decision. In American history, “state’s rights” has been a flag that has often been waved by populist demagogues while “individual rights” has been waved by judges and executives with a better grasp of the law. “State’s rights” is a misnomer which is usually used to defend defiance of settled law. It doesn’t deserve or necessitate revival in our political discourse.

Counterpoint: The Tea Parties Portend A Liberty Movement Ceasing Its Silence

This post is the second portion of a feature we offer here at The Liberty Papers called “Point-Counterpoint”. In this feature, Kevin argued the Point yesterday that Tea Parties are ultimately damaging to the libertarian movement. Today, Brad responds with the below.

My boss is a mainstream Republican in his mid-40’s. He’s got a small crush on Sarah Palin. He recently took the Political Compass and ended up with a score of (+7.00, -0.67). He’s an accountant by training and salesman by profession. He’s not a protester by nature. In short, he’s a part of Nixon’s “silent majority”, the group described by wikipedia as not having “the ability or the time to take an active part in politics other than to vote.” His wife falls under the same general heading. My boss couldn’t make it to the April 15th Tea Parties — work was more important at the time — but strongly wanted to attend. His wife was able to make it to a Tea Party. These are people who are NOT the type to protest the actions of the government publicly. They are, IMHO, much more representative of the types of people who attended these current protests than those who are protesters by nature.

This is not the protester you're looking for.

This is not the protester you're looking for.


Oh, you’ve heard of those groups, I’m sure. These are the types that Kevin alludes to when he says the anti-war protests became anti-Bush protests. These are professional protesters (by professional, I mean that they don’t have day jobs that get in the way). They get their protest groove on before they even know what they’re protesting. Anti-war? Go away, fascists! Anti-WTO? Fine, you dastardly multinational capitalists! Anti-GMO? Leave my food alone! Anti-Bush? Selected, not elected! Described in the movie PCU as “causeheads” by character Droz (Jeremy Piven), they’re the career protesters that you find more often on the left:

“These, Tom, are the Causeheads. They find a world-threatening issue and stick with it for about a week.”

The Tea Parties, at least traditionally, haven’t been dominated by Causeheads. They’ve been attended by regular people — like my boss’ wife — who see that in modern America, the train has derailed and they’re afraid of the carnage to come. It’s people who understand that something is very, very wrong — but they aren’t yet sure why or how to fix it. It is a protest movement in its infancy, and it’s largely populated by people who are more likely to eventually follow the side of someone like Ron Paul* than the “birthers”.

Yes, there are a lot of elements trying to grab hold of the Tea Party movement for their own purposes. But I believe that the modern Tea Party movement can largely ignore those elements, because the Tea Party movement is an effect, not a cause. It is not Joe the Plumber dragging people to Tea Parties; it is their own sense of morality and outrage at what is going on. It is a group of people who is sick and tired of government meddling, but endured in silence for several years while “their party” was in power. When Bush at the end of his term and Obama ever since have hit the throttle on government spending and control, they simply couldn’t take it in silence any more.

The Silent Majority is speaking up.

Stephen Gordon wrote a pretty expansive round-up of Tea Parties that he attended and that he had knowledge of for the Independence Day protests. Throughout that post, it’s clear that this is a grassroots movement, although that in some places it’s more dominated by the local GOP political establishment than in others. In many of these protests, elected officials were barred from speaking, allowing individual non-political Americans to speak.

That is a recipe for a true grass-roots movement. Of course, letting anyone with an opinion speak is also a recipe for a few of them to say things that you may not entirely support. Giving everyone who wants a microphone access to one makes for a bit of a messy message — just look at the blogosphere! When you get that many people together, you may not be 100% comfortable with everyone. Imagine if I’d attended a Tea Party protest. Would your typical mainstream Republican be happy being associated with a radical atheist anarchist who wants to legalize all drugs, let gays get married, and thinks Sarah Palin is the worst thing to happen to the Republican Party since the atrocious George W. Bush? I’d like to think of myself as a consistent advocate for liberty in the face of our government, but I would think that many mainstream republicans would be put off by the views I espouse.

But all that doesn’t change the fact that what is animating these protests is not birthers, or truthers, or Joe the Plumber. The animating force behind these protests is a latent hostility to big activist government that has been piqued by bailouts, stimulus, and the understanding that you must have confiscatory taxes or widespread inflation down the road to pay for it.

We are at a tipping point when it comes to these protests. April 15th was the first shot in a fight against obscene spending and painful taxes. The July 4 protests are a difficult case, however, because they were more of a protest to keep the fires stoked than anything else. On July 4, I think it was more about having a protest than it was about protesting a concrete action. That will soon change. There are strong rumors of a second stimulus**. We have seen the House pass Cap and Tax. We are watching Congress move forward on government health care. These are specific proposals that any advocate of limited government must fight vigorously.

Americans are seeing the Democrats move forward with the same big-government agenda and top-down central planning that we know does not work. We watch as the Republicans either compromise by only enacting the big-government agenda 80% as fast as the Democrats want, or by cutting pork-laden deals to get something in exchange for going with the flow. Nobody in this debate is standing up for the taxpayers, and that means that you can expect more of these Tea Parties in the future.

Will these Tea Parties be good for liberty? These Tea Parties are the effect of liberty-minded individuals expressing their ideals in concrete action, not a cause of those ideals. Thus, for all the efforts of Joe the Plumber, the birthers, or avaricious politicos to manipulate the Tea Parties for their own ends, the fact still stands: the Tea Parties aren’t about these sideshows. Their presence doesn’t change the ideals of those who attended, and in the grand scheme of things, will not materially affect the fight for liberty.

The Tea Parties have one benefit that hasn’t been discussed. If my account is accurate — that these protesters are the “silent majority” speaking up — the Tea Parties are working to mobilize and connect a group of people that largely exist below the political radar. The biggest difficulty I had as a libertarian prior to widespread internet activity was the feeling that maybe I was the outsider and that nobody else agreed. But through blogging (in general, and The Liberty Papers in particular) I am now connected to like-minded people and am building the networks and connections to make real change. The Tea Parties have the same affect on those who believe in small government. In these protests, friendships are made. Connections are forged. The on-the-ground networks that will one day help us to rein in the excesses of our leaders begin to take shape. This, above anything else, is what I hope we will see as the legacy of the Tea Party movement.

As for whether the Tea Parties will ultimately be successful, I cannot be sure. There is a large contingent of this country that wants the government to be their nanny and has no problem forcing the rest of us to pay for it, and I’m not entirely sure that they can be stopped at this late stage. If that contingent is successful, we may someday point at the Tea Parties in hindsight and say “if only they did X, or Y, we might have won.” But as it stands today, they’re one of the only concrete ways for us to get Congress’ attention, they’re one of the ways that the movers and shakers of the future will forge their networks, and they’re serving their purpose despite Joe the Plumber and the “birthers”.
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