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 below 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.
[audio:] 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.’”

So what can individuals do, other than fight court cases and campaign for officials who adhere to the Constitution? Woods believes that more aggressive action is necessary, for states to simply not obey or enforce unconstitutional federal mandates, and he points to recent instances of successful nullification.

“Two dozen states nullified the REAL ID Act of 2005, legislation which aroused the opposition of both fiscal conservatives, who resented another unfunded federal mandate… and civil libertarians, who raised privacy concerns… Resistance was so widespread that although the law is still on the books, the federal government has, in effect, given up trying to enforce it.”

The other current example Woods raises is medical marijuana, which was first legalized in California in 1996.

“Even though the marijuana was grown in one state, was never transported out of that state, was never sold at all, and was immediately consumed in that state, the Justice Department wanted it to be treated as interstate commerce… [The Supreme Court] declared that medical marijuana suppliers and users could be prosecuted even when the states had legislated to the contrary.”

“And yet the use of medical marijuana goes on as if none of this ever occurred. There are as many as 1,000 functioning dispensaries in Los Angeles County alone… in direct defiance of federal will.” In fact, fourteen states have proceeded to join California in legalizing marijuana for medical use.

There is, of course, a long history to the use of nullification. Woods takes it right back to Thomas Jefferson and documents its many successes throughout the 18th and 19th centuries. However, not all constitutional scholars or liberty oriented lawyers share Woods’s positive interpretation or seek to revive the concept.

Clint Bolick, of the free enterprise-oriented Goldwater Institute in Arizona, is a leading figure in the legal battle for greater state sovereignty. He has achieved notable success litigating constitutional challenges, particularly regarding state-based school choice programs, and he questions whether nullification is an effective tool.

“Advocates of liberty need to combine pragmatism with principle. The question of overt nullification was settled by the Civil War. Increasingly, the United States Supreme Court is recognizing limits on federal power and expanded state authority to protect liberty. That is the framework in which we should operate.”

Woods does concede that nullification is not a perfect solution, and a violent conflict is not a “metaphysical impossibility… But politically it would be extremely unlikely,” although presumably it would become more likely as the issues rose in gravity. He also does not base his views on any great confidence in state-level politicians.

“The states, by and large, are run by sociopaths too half the time. But realistically speaking in 2010, where are the threats to Americans’ liberties coming from? Are they coming from Boise, Idaho? They’re coming from Washington, DC… Given that we have tried every other means of keeping the federal government limited, I don’t see why, just out of hand, we should dismiss this.”

Since the idea of nullification is enough to draw accusations of treason and nostalgia for a racist pre-Civil War era, Woods does devote time to these concerns, although he believes them to be deeply misguided.

“This is not un-American or treasonous. What’s treasonous is passing an unconstitutional law and imposing that on the public… That anyone could think that somebody today secretly favors slavery, or thinks that this is going to come – it’s unbelievable… I don’t think you’ll find any bigger opponent of slavery than me… Look at American history. When was nullification used to defend slavery? Never. When was nullification used to fight slavery? Lots of times – and in fact the northern states used it to fight against what they considered to be unconstitutional aspects of the fugitive slave laws.”

While Nullification has not sold as well as Woods’s next most recent work, Meltdown – a New York Times bestseller – he anticipates that tension between the federal government and the states will continue to mount. With that the pressure for nullification will follow, and the “only book in town” on the subject will draw greater attention.

Fergus Hodgson is the capitol bureau reporter with the Pelican Institute for Public Policy. He can be contacted at, and one can follow him on twitter.