Federal supremacists will protect centralized power at all costs.
Take Anthony M. Wilhoit, for example. He was a Kentucky appeals court judge and currently serves as executive director of the Kentucky Legislative Ethics Commission. Wilhoit responded to an op-ed I wrote for the Kentucky Gazette, and made it clear he considers nullification a no-no,
No matter what!
He starts out perpetuating the myth that James Madison opposed nullification, citing his writings during the “nullification crisis” of the late 1820s and early 1830s. Wilhoit pulls some quotes from that period to give the impression that Madison thought nullification was “absurd.” I always wonder whether people who advance this particular argument ever actually read Madison’s 1835 Notes on Nullification, or if they are simply parroting the talking points they picked up from other misinformed lawyers. It’s almost always lawyers that shovel this tripe, probably because they have a vested interest in maintaining the fiction of unlimited judicial supremacy.
In fact, Madison was vehemently opposed to a specific doctrine of nullification invented by John Calhoun and advanced by many in the South Carolina legislature. It essentially held that nullification was a “constitutional process” that actually annulled the federal law in a legally binding sense until 3/4 of the states overturned the act of the nullifying state. But even while railing against this bastardized doctrine, Madison continued to support the Jeffersonian natural right to nullification as a defense against federal usurpation. In the very same document Wilhoit pulls some his quotes from, Madison wrote, “The right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.”
Bottom line: Madison did not oppose nullification as laid out by Thomas Jefferson in the Kentucky Resolutions of 1798. If you want to learn more about Madison’s Notes on Nullification and what he really said, check out my new book, Smashing the Myths: Understanding Madison’s Notes on Nullification.
After he finishes Madisonian myth-making, Wilhoit goes on to point out the grave danger of nullification. He writes about “turmoil” caused by South Carolina’s attempt to nullify the “Tariff of Abominations,” as if rampant unchecked federal overreach and the accompanying spending creates peaceful serenity in America. He then moves on to the one moment in history we can all agree nullification was applied in a disgusting and unforgivable way during the Civil Rights era of the 1950s and 1960s. But Wilhoit immediately gives up what moral high ground he might have claimed with the following statement.
The piece [my editorial] notes that “several Southern states cited Northern nullification…in their declaration of causes for secession.” If, as is certainly true, Northern efforts to nullify fugitive slave laws were a cause of secession, then nullification was the cause of the greatest catastrophe in our nation’s history. Mr. Madison foresaw this, and we must remember our past, or, as Santayana warned, we will be condemned to repeat it.
I can only draw one conclusion from Wilhoit’s comment. He adores centralized power so much that he thinks northern states should not have nullified the Fugitive Slave Act of 1850. Period. He believes they should have submitted to federal authority and simply sent every black person accused of escaping slavery back south – even free citizens falsely accused. After all, the Court said the states could not interfere. He believes northern states should have bowed down at the feet of the federal employees on the Supreme Court, rejected personal liberty laws and refused to allow accused fugitive slaves a jury trial. Wilhoit apparently has no problem with a federal “law” that denied due process to black people, that forced all Americans to serve as slave catchers and actually incentivized federal officials to send blacks off into slavery.
Congress passed it! The Courts approved it! End of discussion!
Had Wilhoit been alive during the fugitive slave era, he would have undoubtedly prosecuted vigorously those who participated in the Underground Railroad. After all, federal law made even giving a scrap of bread and a glass of water to a cold, hungry escaped slave a federal offense. We must enforce every federal laws without question, citizen! Nullification poses such a threat to the fabric of America, we must reject it – even if it means forcing the yoke of slavery onto the scarred backs of those who dared seek freedom, or worse, around the necks of free black Americans falsely accused.
As Thomas Jefferson asserted, “the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government.” The states were always expected to serve as a final check on overreaching federal power.
Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Many ratifiers expressed deep concern that nothing would stop the federal government from seizing and exercising undelegated powers. They asked the question: what will stop it? Madison gave us the Blueprint in Federalist 46, before the Constitution was even ratified. He said the “means of opposition to it are powerful and at hand.” Not only did “the Father of the Constitution” say states should protest, but he insisted they can refuse to cooperate with officers of the union, and they can add “legislative devices.” Madison believed these actions “would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
But Wilhoit and his ilk will have none of these impediments and obstructions. They want unquestioning obedience – to them.
No thanks. I reject the yoke of slavery.