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Numerous blog sites have been smoking recently with sharp debates over the right of states to nullify federal law.  These debates have generated intense heat but very little light. This failure can be partly attributed to the fact that the advocates draw on secondary and tertiary sources, if they draw on any sources at all. In other words, most debates fail to draw directly from the original documents that bear on the question.

With frustration in all this, I decided to “go to the tape.”  In this diary I draw from three sets of pre-Civil War documents that are the cornerstones of nullification theory and, further, on The Federalist Papers, to augment the discussion. The three documents are the Virginia and Kentucky Resolutions, written anonymously by James Madison and Thomas Jefferson, respectively, in 1798 and 1799, and South Carolina’s Ordinance of Nullification, which brought to a head the 1832 nullification crisis with the federal government.

Historical Context

The Virginia and Kentucky Resolutions were responses to the notorious Alien and Sedition Acts of 1798 enacted by President John Adams and the Federalists who dominated Congress at the time. The Sedition Act criminalized certain forms of speech, including “untrue” criticism of the President and Congress, and provided for fines and prison terms of up to two years. The Alien Act authorized the deportation, during times of war or the threat of war, of resident aliens who were found by federal courts to be enemies of the United States, whether they had engaged in hostilities or not.

The Sedition Act was clearly an egregious violation of the 1st Amendment. The Alien Act was an engraved invitation to the Federalists to find their political opponents who were not yet citizens, charge them as enemies of the state, try them in front of Federalist judges, and deport them. This, the Federalists proceeded to do.

The Alien and Sedition Acts of 1798 were enacted during one of the most politically contentious times in American history, with the disputes even more bitter than they are today. The new nation and its Constitution were barely a decade old and the unifying leadership of George Washington was now gone. The nation saw itself as surrounded by monarchies conspiring to see it fail. The presidential election of 1796 had revealed a major flaw in the Constitution, with a razor-close election giving John Adams the presidency and his long-time political adversary, Thomas Jefferson, the vice presidency, creating a deeply divided government. Many of the Federalists who had crafted the Constitution at the Convention and won its ratification in all 13 states (a feat we have little appreciation for today) were fading from the scene and being replaced by a new generation who were more partisans seeking power than philosophers steeped in the realities of political power.

Concerns were expressed across the spectrum of opinion that the nation’s experiment with democratic republicanism was in danger.

Jefferson, Madison and their allies in the proto-Democratic-Republican party sought a way to counter the Federalists’ extreme overreach. Their options were few. Seeking redress through the courts was foreclosed because the courts were dominated by Federalist judges. Moreover, the power of judicial review had not yet been established, and the last thing Jefferson and Madison wanted was to endorse the power of Federalist judges with lifetime appointments to determine the constitutionality of federal and state laws.  (The power of judicial review was established six years later in the Supreme Court’s decision in Marbury v. Madison, written by the Federalist John Marshall, in which Jefferson and Madison won a bitter Pyrrhic victory.)

So, with those options closed, Jefferson and Madison turned to a theory that the states, in concert, had the right under the Constitution to take unspecified measures in the face of unconstitutional acts by the federal government.  

That Jefferson would propose such a theory is not especially surprising. He was in Paris during the Constitutional Convention and the state ratification debates so he was not informed by them. Moreover, Jefferson held a great aversion to a strong federal government, and as he knew, just as all the anti-Federalists who opposed ratification at the Constitutional Convention and in the states knew, the Constitution created a strong federal government.  They saw the Alien and Sedition Acts as the fulfillment of their fears.

There’s a lesson here we’ll get to later when we discuss Jefferson and Madison as political philosophers, students of Locke and Montesquieu writing the nation’s founding documents, now transformed into partisan street-fighters looking first to survive and then to dominate the street.

The Virginia Resolution (1798)

Madison’s support for the theory of state sovereignty is more surprising since he was present at the creation of the Constitution, had a major role it its composition, and along with Alexander Hamilton, was its strongest proponent through The Federalist Papers. The language Madison wrote in the Virginia Resolution directly contradicted what he wrote in The Federalist Papers, statements that go to the very principles of the Constitution. These stark contradictions require an examination and, if possible, an explanation.

So, we’ll start with Madison’s Virginia Resolution, which can be found here: http://avalon.law.yale.edu/...

The Resolution is brief, though it seems long thanks to the turgid prose of the period. I’ll focus on two sections:

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers…  so as to destroy the meaning and effect [of the Constitution]… and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
Two phrases deserve attention in this passage. First, Virginia expresses its “deep regret”. This is not language indicating intent to nullify any federal law. It is moderate language intended to persuade Congress to repeal the acts or, failing that, to persuade other states to express their opposition to the acts. It does not propose any step toward nullification, much less a unilateral one by a single state. Later in this diary, we will see how different this is from the nullification doctrine of the South Carolinians 34 years later.

The second phrase worth attention is “so as to consolidate the states by degrees, into one sovereignty”.  This is shocking language to come from the pen of James Madison who propounded in The Federalist Papers the theory that the new nation and its Constitution were creations of Popular Sovereignty, deriving their legitimacy directly from the people, not from the states. He expressly stated this in numerous places in The Federalist Papers. One example is found in The Federalist No. 39, where Madison describes the federal government established by the Constitution as “a government which derives all its power directly and indirectly from the great body of the people.”

The Virginia Resolution’s theory of state sovereignty also contradicts the first 15 words of the Preamble to the Constitution in which the Founders state their intent “to form a more perfect union”. Madison knew the Constitutional Convention was convened because the compact formed by the Articles of Confederation was failing, threatening the survival of the new nation.  The Founders did not intend to form a more perfect compact or a more perfect confederation of sovereign states. In fact, their first act was to throw out the old Articles of Confederation and start over. Of course, Madison signed onto the Constitution knowing and sharing this intent.

Now, the second section of the Resolution:

… the General Assembly doth solemnly appeal to the … the other states, in confidence that they will concur with this commonwealth in declaring… that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
Here, again, the Resolution calls for the states, in concert, to merely “declare” their opposition to the unconstitutional acts, but it goes one step further by expressing a hope or expectation that the states, together, would pursue some unspecified but “proper” measure to, not nullify the Alien and Sedition Acts, but to maintain their rights, and those of the people, guaranteed by the Bill of Rights. There is no claim that any group of states, even all states combined, has standing to nullify federal law, much less a single state acting unilaterally.

These two sections of the Resolution are embedded in language comprising nearly half the document and bordering on obsequiousness in its deference to the Constitution. Moreover, the word “nullification” never appears in the document. If Madison is calling other states to the barricades, it’s a gentleman’s invitation to other gentlemen who will use reason to turn the tide. It is not a call to arms or anything close to it.

So, how did the other states respond to this polite call from the gentlemen of Virginia?  Other than Kentucky, no state supported the Virginians while ten opposed them.  Six states sent responses taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures, directly opposing the Virginians. It was a resounding rejection of the modest theory proposed by Madison.

The Kentucky Resolution (1799)

Jefferson’s Kentucky Resolution, written a year after the Virginia Resolution, was a response to both the Alien and Sedition Acts and the resounding rejection of the Virginia Resolution by the other states. The Kentucky Resolution can be found here: http://avalon.law.yale.edu/...

Jefferson’s writing is even more turgid than Madison’s in the Virginia Resolution. Considering the contrast between their prose in these documents and the power of their rhetoric when writing under the own names, one wonders if they were attempting to hide their hands. As we’ll see later, Jefferson, in particular, had good reason to do so.

In the first paragraph, Jefferson acknowledges that the other states have rejected Kentucky’s plea to endorse the theory of state sovereignty and concedes that it would be beating a dead horse to continue trying to persuade them. Jefferson’s second paragraph is telling:

We cannot however but lament, that… our sister states, [have cast] unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument....
He has been stung by the breadth and intensity of opposition his theory of state sovereignty has generated. From the fourth paragraph:
[Kentucky] does now unequivocally declare its attachment to the Union, and to that compact [i.e., constitution]… and will be among the last to seek its dissolution…
This passage speaks for itself, but immediately, Jefferson does what in the first paragraph he says there’s no point in doing—beating the dead horse. He channels the Jefferson of the Declaration with its indignant recitation of the long train of abuses the colonists suffered at the hands of the Crown, with all its charged rhetoric.

Then he throws down the gauntlet of nullification based on the theory of state sovereignty:

That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy
Following all this sound and fury, Jefferson backs off:
… however cheerfully it [Kentucky] may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, … it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union... [emphasis mine]
But he can’t resist one last rhetorical flourish of righteous indignation:
… yet it [Kentucky] does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact…
And Jefferson exits stage right having confirmed, implicitly, Madison’s position that states must act in concert against unconstitutional acts of the federal government through measures unspecified and that they have no standing to act unilaterally. But Jefferson, in his charged rhetoric, has planted the seed of nullification in the fertile soil of the South, which three decades later bears poisonous fruit in the near-insurrection in South Carolina.

The South Carolina Nullification Ordinances

The Nullification Crisis of 1832 developed out of a conflict over tariff policy between South Carolina and the federal government. Tensions were mounting when Andrew Jackson, a southerner, slaveholder and supporter of states' rights, was elected president in 1828. Since Jackson was from the South, South Carolina and the other southern states expected him to reduce tariffs significantly and, in fact, he moved quickly to defuse the conflict through negotiations. The compromise Jackson struck, embodied in the Tariff of 1832, won the support of most northerners and half of the southerners in Congress.

But the South Carolinians were not satisfied. The most radical faction in the state immediately called for nullification of the tariff and soon enacted the 1832 Ordinance of Nullification, which declared the federal tariffs of 1832 to be unconstitutional and therefore null and void in the sovereign state of South Carolina. Then the state began military preparations to resist the federal enforcement action they thought might follow.

Many expected the pro-States Rights Jackson to side with the South Carolinians on the tariff, but once they threatened nullification and began talking of secession, Jackson took a hard line and never wavered. On the occasion of a visitor from South Carolina asking if Jackson had any message he wanted relayed to his friends back in the state, Jackson said,

Yes I have; please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.
Later, upon hearing rumors of efforts to subvert military forces in Charleston, Jackson directed the army and navy to rotate troops based on their loyalty, and he ordered the national army to prepare for military operations and a naval squadron in Norfolk to prepare to sail to Charleston.

As 1832 closed, Jackson issued a Proclamation to the People of South Carolina
in which he described his views on the doctrine of nullification:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.
Seeking to resolve the crisis, Congress offered South Carolina a carrot in the form of a tariff reduction while handing Jackson a stick: authority to use military force against the nullifiers. South Carolina soon repealed its Nullification Ordinance although more than a decade later radicals were still calling for nullification unless the tariff was removed entirely.

The South Carolinians claimed victory despite having made concessions. But the United States had prevailed on the question of nullification. And as in 1799, the doctrine of nullification drew strong criticism, even in southern states. The Alabama legislature denounced nullification as “unsound in theory and dangerous in practice.” Georgia called it “mischievous,” “rash and revolutionary”, while Mississippi criticized the nullifiers for acting with “reckless precipitancy.”

After the crisis passed, Jackson presciently wrote,

...the tariff was only a pretext, and disunion and southern confederacy the real object. The next pretext will be the negro, or slavery question.
In South Carolina, there were grave misgivings about backing down on nullification. Many believed it boded ill for the South and the preservation of slavery. Robert Rhett, one of the state's most vehement opponents of the tariff and soon to be one of its most radical proponents of succession, expressed these reservations, warning that,
A people, owning slaves, are mad, or worse than mad, who do not hold their destinies in their own hands... Every stride of this [federal] Government, over your rights, brings it nearer and nearer to your peculiar policy [slavery].
For all appearances, South Carolina took Rhett’s warning to heart. Over the next 30 years, the state's leadership undertook a concerted campaign to indoctrinate its citizens on state sovereignty, nullification, and the threat posed by the federal government, laying the groundwork for secession. And in 1860, when South Carolina became the first state to secede, it was more united and better prepared than any other southern state.

Jefferson's rhetoric in the Kentucky Resolution was a call for the states, in concert, to nullify unconstitutional acts, without suggesting any measures to effectuate nullification. Moreover, it was anchored in a pledge of loyal to the nation and the Constitution. Thirty years later, the doctrine of nullification had morphed into something far more dangerous.

Nevertheless, the seed Jefferson planted in 1799 had grown into the vines of nullification, secession, and states' rights, wrapping around the tree of liberty, first in South Carolina then spreading across the South on fears the federal government would abolish slavery. By the 1850s, the states' rights doctrine and the practice of slavery were making its way into the western territories and even the North through the Kansas-Nebraska Act, the Fugitive Slave Act, and the Supreme Court's Dred Scott decision.

As slavery was dying out in most of the world, in the world's great experiment of republican democracy, slavery was rapidly spreading.

Understanding Madison’s Turnabout

As I said earlier, Jefferson’s attachment to the theory of state sovereignty is not surprising considering his skepticism toward the Constitution and his opposition to the strong federal government it created. In fact, Madison, his closest political ally through much of his career, did yeoman’s duty in restraining Jefferson’s most anti-Constitution rhetoric. But as Jefferson aged, and especially near the end of his life, his position hardened on nullification, writing privately that the time might come when the southern states would have no choice but to use nullification against the growing power of the federal government or even dissolve the Union.

Understanding Madison’s position on the theory of state sovereignty is more complex. First and foremost, Madison never endorsed the doctrine of nullification, and during the nullification crisis of the 1830s, he denounced the concept of as unconstitutional:

But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
How might we explain Madison’s transformation from writing in The Federalist Papers that the Constitution and the strong federal government it created were products of Popular Sovereignty to, only ten years later, writing in the Virginia Resolution that the Constitution was based on state sovereignty and the federal government was subservient to the states?

Certainly, one possibility is that he changed his mind. But another is that by 1798 Madison and Jefferson were embroiled in a fight with the Federalists that both sides saw as a struggle over the future for the nation they had risked everything to bring into being.

Jefferson was a brilliant political strategist and he knew how to play to an audience. When he wrote the Kentucky Resolution in late 1799 he was vice president and was set on winning the next year the presidency he came so close to claiming in 1796. He knew the 1800 election would be a very close, and indeed it was. Jefferson finally prevailed after 36 ballots by the Electoral College.

The Virginia and Kentucky Resolutions were an attempt to rally the states to oppose, and in the case of Kentucky, to nullify the Alien and Sedition Acts. In that, they failed. But the Resolutions served a second purpose: to mobilize the anti-Federalists for the upcoming election. However, Jefferson and Madison could not write the Resolutions under their own names. Why? Because as Jefferson's biographer Dumas Malone said, had his actions become known at the time, Jefferson might have been impeached for treason.  That would be no way to enter an election season.

So Madison wrote the moderate Virginia Resolution, then a year later Jefferson proposed nullification when he could maximize its political effect while minimizing the risk to himself and his ambitions. And, further, he wrote it anonymously to maintain deniability. Jefferson did not invent the concept of nullification; it was in the air by 1798, feeding the fire of resistance by anti-Federalists. Jefferson was a master of the inside game as well, as he demonstrated in Paris and as Secretary of State.

With the options for resistance through any of the three branches of government apparently foreclosed, Madison’s resort to the theory of state sovereignty and Jefferson’s to nullification represented a profound lack of faith in the very system they revered: a democratic republic in the hands of the people. Less than a year after Jefferson planted the seemingly eradicable seed of nullification in American soil, he and his party captured the presidency and swept the Federalists from power in one of the most decisive and consequential elections in American history. Thereafter, the Alien and Sedition Acts went unenforced and soon expired, and Jefferson, Madison and their protégé James Madison would hold the presidency for the next 24 years.

Conclusion

There were several ironies, some would say marked inconsistencies, in Jefferson’s career. One, of course, is his high language in the Declaration regarding the equality of all men while holding men in bondage throughout his life and, after death, leaving them to be sold as part of his estate or passed as property to his family. For many years before his death, Jefferson expressed a hope, even an expectation that slavery would die out in the South as it had in the North and much of the rest of the world. But he proposed no means by which this would occur, and he took no action to encourage it on its way to oblivion.

Instead, Jefferson left the country with the doctrines of nullification and states’ rights that over the next 60 years became the South’s justification for repeated threats to dissolve the Union and ultimately led to the Civil War--all to preserve the institution of slavery on which their personal wealth, their economy and their culture depended.

Another irony is found in the fact that the anti-Federalists, whom Jefferson would later join, opposed ratification on the grounds that the Constitution created a strong federal government whose laws were the supreme law of the land, and that the federal government would come to threaten the liberties of the people and the powers of the states. The anti-Federalists ultimately lost their ratification fights in all thirteen states but won a Bill of Rights addressing their concerns. Only one of those first ten Amendments addresses the power of the states, and it has been rewritten by states’ rights proponents to say that all powers not expressly delegated by the Constitution to the federal government are reserved to the states.

In fact, the word “expressly” does not appear in the 10th Amendment:

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.
Indeed, the “expressly delegated” construction is contradicted in the Constitution by the Necessary and Proper Clause of Article One, which grants the federal government broad but not unlimited authority to carry out the powers delegated to it by the people through the Constitution. Furthermore, in one of the earliest and most significant cases decided by the Supreme Court, McCulloch v. Maryland, the Court held that federal laws need not be "absolutely necessary" to be necessary and proper and that, most importantly, the Necessary and Proper Clause was “among the powers of Congress, not among the limitations on those powers."

So, the irony is found in the fact that states’ rights proponents of the 1800s, like those of today, claimed then and claim now that the Constitution created a federal government subservient to the sovereign states. They now claim that the federal government derives its authority and legitimacy from the states when their **STATES'** rights forebears of the 1780s, in opposing ratification, took the opposite position, that the Constitution created too strong of a federal government, and lost that fight in all thirteen states.

But the greatest affront to the principles of the Constitution is the states’ rights proponents’ claim that the states are sovereigns when, instead, the foundation of the Constitution rests on the sovereignty of the people who created and sustain both the states and the federal government and who conferred on them their powers through the Constitution. This was the clear intent of the Founders, including Madison. And it was subsequently confirmed by Abraham Lincoln in his vision of the relationship between the people and the Union and by the force of arms he brought to bear on the states’ rights insurrectionists who tested the doctrine of nullification by bringing the nation to war.

So, in the nation’s first 70 years, we see three great battles over the question of the power of states versus those of the federal government. In the first, the advocates of a strong federal government prevailed at the Constitutional Convention and at the ratification conventions in all thirteen states. In the second, the South Carolinians’ attempt to nullify federal law was crushed by Jackson’s offer to bring federal troops into the state and hang the nullifiers. And in the third, after four years of slaughter, Lincoln defeated the states’ rights insurrectionists, abolishing the institution of slavery and ending the South’s ability to hold the nation hostage with its threats of nullification and disunion.

Despite this history of futility for the cause of states’ rights and the weakness of its claims to the 10th Amendment, present day nullifiers, secessionists, and states’ rights proponents continue to press their theory of state sovereignty and seek legitimacy in the words of the Founders. Most have given up on Madison, dismissing him as superficial and irresolute. Instead, they fix their claim on Jefferson and his tepid (and anonymous) endorsement of nullification in the Kentucky Resolution.

In doing so, they are unaware, or willfully ignore, that Jefferson did not advocate any act of nullification and suggested nullification only in the context of joint efforts by the states, not action by a single state. And they are blind to Jefferson’s pledge of loyalty to the Constitution in his assurance that Kentucky

unequivocally declare[s] its attachment to the Union, and to that compact [the Constitution]… and will be among the last to seek its dissolution… [T]his commonwealth as a party to the federal compact; will bow to the laws of the Union.
So the roots of today’s states’ rights and nullification doctrines lie not with the Founders but with the South Carolinians who brought about the nullification crisis of the early 1830s and 30 years later launched the Civil War by bombing Fort Sumter. Their forebears are the Southern fire-eaters and irreconcilables who over 30 years relentlessly drove the nation to war with itself.

What have they learned?

More importantly, what have WE learned, about them, their rewriting of our Constitution and our history, and the cost our nation has borne for their theory?

Originally posted to publiustx on Fri Feb 01, 2013 at 01:55 AM PST.

Also republished by History for Kossacks and Community Spotlight.

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Comment Preferences

  •  If Jackson didn't end it, the civil war did (4+ / 0-)
    Recommended by:
    a2nite, HugoDog, sfbob, kaminpdx

    History has mooted the significance of whatever Jefferson and Madison may have, or may have not, thought on the subject.

    www.buonoforgovernor.com

    by Paleo on Fri Feb 01, 2013 at 03:01:43 AM PST

    •  States' righters and nullifiers are alive and well (13+ / 0-)

      Unfortunately, the states' rights and nullification doctrines are alive and well today. I live in the South and it has been a sub-current here my entire life. It has become more mainstream with the election of a black president and the rise of the tea party.

      If you listen to the today's adherents to these doctrines you'll soon hear them harken back to Jefferson to legitimate their theories. My point is that there is no basis for their claim--that their roots are in the radical, slaveholding South Carolina aristocracy.

      •  SC was the epicenter but radical states rights (3+ / 0-)
        Recommended by:
        US Blues, a gilas girl, kovie

        attitudes seemed to spring up and take hold where ever plantation slave culture became established.  TPers like to cite Jefferson, but his actions show him to be more concerned with maintaining the plantation culture he was a part of than in promoting the welfare of the yeoman farmers.  States rights was a vehicle for maintaining slave holder rights.    

        •  This, of course, is exactly right. The crisis (5+ / 0-)
          Recommended by:
          US Blues, a gilas girl, kyril, kovie, Helpless

          of nullification over the tariff was fundamentally about slavery. Here's what the ultimate villain of the piece had to say:

          "I consider the Tariff, but as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the peculiar domestick [sic] institutions of the Southern States, and the consequent direction which that and her soil and climate have given to her industry, has placed them in regard to taxation and appropriation in opposite relation to the majority of the Union; against the danger of which, if there be no protective power in the reserved rights of the states, they must in the end be forced to rebel, or submit to have . . . their domestick [sic] institutions exhausted by Colonization and other schemes, and themselves & children reduced to wretchedness." [John C. Calhoun to Virgil Maxcy, 11 Sep 1830]

          The reference to the South's peculiar domestic institutions is, of course, a reference to slavery.  Calhoun and the other nullifiers supported states' rights, but the right they were concerned about was the right to enslave other human beings.

          •  Something that most people are unaware of is the (5+ / 0-)

            extent to which southern slave holders' demands that the Constitution protect slavery, both implicitly and explicitly, shaped the Constitution.  Whenever I hear people defend constitutional originalism I have to wonder how many of them are aware of the extent to which southern intransigence to anything that threatened their 'peculiar domestik institutions' drove the compromises that produced the Constitution.

            •  Right again. (2+ / 0-)
              Recommended by:
              kyril, kovie

              The conflict between large and small states over proportional representation, which ultimately led to the Senate, was also about the power of slave states.  But the three/fifths rule is maybe the most blatant example.  It ensured that Virginia, with almost the same free population as Pennsylvania, could by itself deliver 25% of Presidential electors. And the consequences of the rule played out until 1860--more than half of our first 15 Presidents were Southern slaveholders, as were the majority of Supreme Court Justices, and two-thirds or more of the Speakers of the House and Presidents Pro Tem of the Senate were Southerners.

      •  Alive, yes, well, meh (0+ / 0-)

        I think that some of these people are off their rocker, or simply very stupid, like Perry or Palin. And it doesn't really matter what Jefferson meant, as they're going to read into him whatever they want. These are people who believe that the constitution was divinely ordained, ferchrisakes.

        That's one of the problems with Jefferson (among, sigh, many). You can read so much into his words, and both sides can and do use him to further their positions. Myself, I try to avoid him as it's just too messy and tricky.

        Plus, Notes on Virginia. Ech, just ech.

        "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

        by kovie on Fri Feb 01, 2013 at 03:23:13 PM PST

        [ Parent ]

  •  The Civil War ended the question of nullification (2+ / 0-)
    Recommended by:
    kyril, kovie

    However with the current make up of the evil SCOTUS who knows what they would decide.

    Jefferson is burning in he** if there is one. He owned people, don't care about his words. He & his family benefited from unpaid labor. Hate him with the rest of the "Founders". Their failures lead to the conditions we have today.

    •  Unfortunately, it only ended it for people (1+ / 0-)
      Recommended by:
      Dave in Northridge

      like us, not the firebreathers (and mouthbreathers), for whom it's still alive and well. As for Jefferson, I basically agree. What a creep. I'm sure you've read about his thoughts on race and blacks in the Notes on Virginia. But I think you may be a bit harsh on the founders as a whole. Franklin, Adams were Hamilton among the first abolitionists, and Washington came to share their views late in life. Madison is a bit of a cold fish, but I think he genuinely meant well, and tried to push for a more democratic union in which small states didn't have as much power as big ones. The real obstacles to a more democratic republic were racists like Henry and opportunists like Clinton.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Feb 01, 2013 at 03:35:58 PM PST

      [ Parent ]

    •  While the question of nullification was settled (2+ / 0-)
      Recommended by:
      lostinamerica, NM Ray

      for most Americans with the South's defeat in the Civil War, it is rearing its ugly head again; and this time the rabidness is being fed by mainstream media and elected officials.  It needs to be stomped down hard and soon.

      It is long past time to go "Andrew Jackson" over this nonsense!  I would like to see a bill introduced, debated, and voted on that eliminates all Federal government spending, except for social programs, in states that pass laws which make it illegal to enforce ANY federal law. I want ReTHUGs who would defend the Nullification Theory with a "No" vote counted and exposed.  I also want to see what Red "Taker" states would be willing to give up FEDERAL tax dollars since they "take" more than they "pay."  

      ReTHUGs need to be pushed to the wall on this issue; Congressmen need to be forced to take some vote that exposes those who support this dangerous political ideology so the American public can see more of the true GOP underneath the slipping mask.  They need to be exposed for the rabid reactionaries that they are.  

      Robber Baron "ReTHUGisms": John D. Rockefeller -"The way to make money is to buy when blood is running in the streets"; Jay Gould -"I can hire one half of the working class to kill the other half."

      by ranton on Fri Feb 01, 2013 at 08:36:38 PM PST

      [ Parent ]

  •  Thanks (6+ / 0-)

    This is the most enjoyable read I have had in quite some time. It even made me forget it is -13 outside and I have to go to work! I thank you. I want to read more about this. Suggestions?

  •  Very enlightening (4+ / 0-)

    Because of TPers insistence on interpreting the constitution in what they consider to be an originalist manner, I've been becoming better acquainted with the issues and attitudes that shaped the U.S. in the late 18th and early 19th centuries.  This diary is a welcome addition to that effort.  Thank you publiustx.  

  •  What have they learned? (4+ / 0-)
    Recommended by:
    US Blues, a gilas girl, sfbob, ranton

    Doodley Squat.

    Thanks for an excellent historical treatment on this subject.

  •  Nice read, thx (5+ / 0-)

    as a direct descendant of one of the hooligans that started this whole mess (my great-great-great-grandfather was a delegate at the 1832 SC convention), I always feel a bit guilty.

    I've never known if the Ordinance was signed by him. I assume it was, or was passed by unanimous consent, or something. Do you know if there is an image of the original document on-line?

    Javelin, Jockey details, all posts, discontinue

    by jam on Fri Feb 01, 2013 at 01:31:00 PM PST

    •  Image of Ordinance of Nullification (1+ / 0-)
      Recommended by:
      lurker123

      Here's a link to an image of the Ordinance. However, I have found no record of the vote and the image shows no signatories. The vote of the convention was 136 to 26 in favor of adoption.

      Perhaps the convention chose not to publish the record of the vote, or even record the names, for fear that supporters might be hanged for treason.

      http://arcweb.archives.gov/...

    •  for jam (1+ / 0-)
      Recommended by:
      lurker123

      for jam

      Regrets about your great-great-great-grandfather. :-)

      I also am not aware of any document showing the signatories of South Carolina’s Nullification Act.  But I very much doubt that information is not available in South Carolina.  I can’t imagine any irascible South Carolinian in 1832 bartering pride for the shame of hiding from treason. Surely they were as bold in 1832 as they were in 1861.  Chances are there’s a record of the 136 signatories somewhere in the state.  I recommend you start by contacting the South Carolina Department of Archives & History. Their archival staff is professional and friendly.
      http://scdah.sc.gov/...

      The National Archives does have a digital copy of the official protest from the South Carolina legislature (12/19/1828).  In the body of the text are the names of the bill’s sponsors, William Smith and Robert Y. Hayne, the same Hayne of the momentous Webster-Hayne senate debate of 1830.  The document is signed by the President of the South Carolina Senate and the Speaker of the South Carolina House of Representatives.  One other signature (semi-legible) appears under the bottom left-corner of the text: Stephen ?????????.  You can examine the Protest document on-line at the National Archives.  Just type “South Carolina nullification” in the search box at
      http://arcweb.archives.gov/

      You night also be interested the South Carolina nullification of the United States Force Act (1833).  In that act, Congress authorized President Jackson to do a number of unpleasant things to the state.

      Perhaps your great-great-great-grandfather signed them all!

      Please let me know by Kos IM if you find anything

      Happy hunting!

  •  The existence of the States (4+ / 0-)
    Recommended by:
    a gilas girl, sfbob, ranton, mkor7

    Is a historical accident left over from the founding of separate colonies. While some try to use the State as a shield against the Federal government, most often, as we saw in South Carolina, it is only to further their own self-interest, not out of a deep sense of alignment with genuine freedom and justice.

    "Political ends as sad remains will die." - YES 'And You and I' ; -8.88, -9.54

    by US Blues on Fri Feb 01, 2013 at 01:32:38 PM PST

    •  ...and their tendency to lean toward (1+ / 0-)
      Recommended by:
      US Blues

      authoritarian, liberty-denying government...as long as THEY have control of said government.

      Robber Baron "ReTHUGisms": John D. Rockefeller -"The way to make money is to buy when blood is running in the streets"; Jay Gould -"I can hire one half of the working class to kill the other half."

      by ranton on Fri Feb 01, 2013 at 08:39:41 PM PST

      [ Parent ]

  •  I'm torn, in theory (0+ / 0-)

    On the one hand, nullification is a step towards more local self-determination and would therefore be an apparently good thing for democracy.

    On the other hand, shrinking & weakening (nation-)state sovereignty makes governments more vulnerable to trans-state actors and provides more opportunity for negative externalities.

    Those who support banning cocaine are no better than those who support banning cheeseburgers

    by EthrDemon on Fri Feb 01, 2013 at 01:52:33 PM PST

    •  On a purely theoretical level, true (2+ / 0-)
      Recommended by:
      Dave in Northridge, ranton

      Both views have their merits and drawbacks. But on a legal level, the matter was settled over 200 years ago. Well, actually, just under 200, if you view McCulloch v. Maryland as the landmark ruling establishing federal supremacy over the states. And on a practical level, I think that the decade under the Articles of Confederation revealed the weakness of too-powerful states.

      "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

      by kovie on Fri Feb 01, 2013 at 03:29:06 PM PST

      [ Parent ]

    •  To EthrDemon (5+ / 0-)

      The issue you raise about local self-determination vs the value of nation-states was top of mind of the founders. After they won independence from Great Britain, the states wanted to enjoy the same level of self-government they had before the Brits began meddling in their affairs. So they came together under the Articles of Confederation which gave the states maximum discretion over their own affairs while still binding them loosely together.

      The experiment failed miserably and quickly to the point that there were widespread fears for the survival of the country. Examples of some of the problems that arose include states imposing tariffs on each other's products to raise revenue or protect their home markets, vulnerability to foreign governments playing states off against each other, incoherent to nonexistent foreign policy, inability to raise military forces in the face of internal or external threats, different currencies with different, non-decimal denominations, and difficulty in resolving legal disputes between the states.

      In seeking a solution to the problem, the Founders looked back at other examples of democracies dating to ancient Greece. They concluded that a contributing factor in the short lifespans of the democracies was that they were too small and too slow to react to foreign threats and were unstable because it was too easy for one internal faction to take power, refuse to relinquish it, and end democratic self-government.

      Their solution was to band the states together to create a single, integrated democracy, a union, that could defend itself and whose factions would counter balance each other such that no one of them could dominate the others.

      This is discussed in considerable detail in The Federalist Papers.

      The story of how the Constitution grew out of the failure of the Articles of Confederation is one of the great lost chapters of American history. That's very unfortunate because it's crucial to understanding why the Founders created a strong federal government that drew its legitimacy directly from the people.

  •  What have they learned? (0+ / 0-)

    It would seem that they have learned to always have faith in that greatest of political forces, the "do-over".

    If at first the people don't get it right, keep telling them just exactly what it is that they want...or just re-argue established law time and again.

    Really helpful piece that explains much.  I learned a lot.  Thanks.

    Words can sometimes, in moments of grace, attain the quality of deeds. --Elie Wiesel

    by a gilas girl on Fri Feb 01, 2013 at 02:03:28 PM PST

  •  Great essay although I disagree somewhat (0+ / 0-)

    I don't see Madison flip flopping as you do, and I do see a strong philosophical argument for the concept of "States' rights" although I would frame it differently.  Lest we forget, the Senate is technically there to represent State interests.  

    Most importantly, however, is the effect of Marbury v. Madison on the subject.  Once judicial review was established, nullification ceased to have any meaning outside of Constitutional Amendment.

    It is my view that the States do have rights, but in the context of challenging a federal law, the States are limited to the right to seek judicial review from SCOTUS, and to seek Constitutional Amendment if and when SCOTUS upholds the federal action.  

    Ultimately, however, all sovereignty remains with the People.  Any legitimate exercise of governmental power, whether at the federal or state level, must stem from a proper delegation by the people.  If the delegation of power is abused and the sovereignty of the people is ignored, it is ultimately the responsibility of the People to correct course.  While difficult, our Constitution does provide the means for peaceful revolution, whether by amendment or convention.

    "None are more hopelessly enslaved than those who falsely believe they are free." - Goethe

    by jlynne on Fri Feb 01, 2013 at 03:01:39 PM PST

    •  Reply to jlynne (0+ / 0-)

      A direct comparison of what Madison wrote in The Federalist Papers and what he wrote in the Virginia Resolution shows pretty clearly that he changed his stripes on the matter of state sovereignty and the powers of the national government versus those of the states.

      But I'm now doing research for another diary on why we tossed the Articles of Confederation and adopted a Constitution in its place.  The definitive source for this task is Madison's detailed, daily record of the deliberations of the Constitutional Convention. These notes, of course, include summaries of Madison's own statements. These make it quite clear that Madison expressed one set of views in the late 1780s and very different ones 10 years later. But as I said in my diary, I think this was driven by great concern for the direction the Federalists were taking the nation.

      The Founders agreed with you that there were good theoretical and practical reasons for reserving certain powers to the states. and this is reflected in several Articles of the Constitution as well as in the 10th Amendment.  However, Madison's notes from the Convention are clear that the intent of a majority of the delegates was to create a strong national government with the states subservient to it and that they did so in the Constitution that was ultimately ratified by the states.

  •  Your diary was an absolute joy to read (1+ / 0-)
    Recommended by:
    NM Ray

    I probably learned about at least some of this when I was a kid. In particular I recall being taught about the 1832 Nullification Crisis. But I grew up and attended public school in the 1950's and 1960's, and did so in New York City. Not only did that impart a particular perspective (not a poor one necessarily) the era during which I was educated was one during which it was considered unacceptable to even suggest that any of the Founding Fathers (other than perhaps Aaron Burr) could have said or done anything even remotely reprehensible. In particular, while it was acknowledged that Jefferson had been a slave-owner, we were taught that this was a quirk of which he was very ashamed. While, overall, it was still taught back then (at least where I came from) that nullification was simply crazy talk, the nuance was left out.

  •  Superb diary (2+ / 0-)
    Recommended by:
    NM Ray, river0

    I'm going to hotlist it for later review as it really deserves a thorough reading. I don't know if Jefferson realized how much he was playing with fire but clearly his words had a disastrous effect down the line, even though the proximate motivation for them, the odious Alien & Sedition Acts, which even Hamilton deplored, made them understandable (as did his purchase of Louisiana, which made inevitable the problems that led to secession and civil war).

    Also, kudos for explaining the importance of the expressly missing word in the 10th amendment that wingnuts keep pretending is in it (and was, in an early draft, till it was taken out given that would have turned the constitution into a dead letter). Myself, I find the 10th to be pointless, a sop to the teahadists of the day looking for symbolic affirmation, and the 9th vastly more important.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Feb 01, 2013 at 03:19:32 PM PST

  •  Wonderful diary. Thank you! (0+ / 0-)

    Real American history is utterly fascinating and not much like what I was taught in school.

  •  This is good (0+ / 0-)

    Given Calhoun's hostility to Jackson (I mean, he let his wife engineer the whole Peggy Eaton scandal to embarrass Jackson's protection of a friend) I've always seen the "tariff of abominations" and the subsequent nullification "crisis" as something Calhoun manufactured to show his displeasure with the Election of 1832.

    I republished this to History for Kossacks.

    -7.75, -8.10; . . . Seneca Falls, Selma and Stonewall (h/t cooper888)

    by Dave in Northridge on Fri Feb 01, 2013 at 04:58:29 PM PST

  •  Terrific historical write-up. Thanks for the ammo. (0+ / 0-)

    eom

    Find out about my next big thing by reading my blog. Link is here: http://bettysrants.wordpress.com/2013/01/05/my-next-big-thing/

    by Kimball Cross on Fri Feb 01, 2013 at 05:43:53 PM PST

  •  Jackson was less concerned with nullification (0+ / 0-)

    when Georgia was defying Federal laws and Federal Court decisions over their treatment of Native American rights leading to his support of the genocidal Trail of Tears. The Democrats could rightly drop Jefferson-Jackson dinners as annual fund raisers. FDR-JFK dinners would be more popular.

    I'd tip you but they cut off my tip box. The TSA would put Moses, Jesus, and Muhammad on the no-fly list.

    by OHdog on Fri Feb 01, 2013 at 05:44:45 PM PST

  •  Thanks. Tipped, rec'd, and hotlisted (2+ / 0-)
    Recommended by:
    NM Ray, quarkstomper

    I'm gonna have to give this a closer read a little later.

    Excellent historical explication. Love it.

    I have a couple of comments -- no disagreements with what you said, just comments --

    1. A good friend of mine, a very smart guy, once pointed out that prior to the Civil War, people treated "The United States" as a plural noun. (So, for example, "The United States are going to enact a new law" instead of "The United States is..."). But after the Civil War, "United States" became a singular noun (like, say, France or England) because it was a country, not a confederation of sovereign states. This was the same friend who pointed out that one of the most important things in our early history was when George Washington decided not to run for re-election after his second term as President. He could have been tempted (as Napoleon was) to declare himself emperor and make it a hereditary post. This friend was also a fan of Marbury v. Madison (which made the Supreme Court co-equal branch of government).

    2. So prior to the Civil War, a lot of people thought of the individual states as if they were actual States/Countries (similar to the way the European Union is now). I remember a story about Robert E. Lee, the Confederate General, being torn between his loyalty to the U.S. and his loyalty to Virginia. He decided he was a Virginian first. Some educated people (and he was a very smart and honorable man) thought that way back then. You could argue that it's treason to take up arms against your own country, but you could also argue that he considered his home country to be Virginia, so from his point of view it was not treason. But the Civil War settled that question. I'm not saying Lee was right, but I can understand his thought process.

    Just two thoughts. I didn't say anything about nullification (which was decided in the 1860s). But both comments have an indirect bearing on the question.

    Again, thanks for writing this diary.

    “If you misspell some words, it’s not plagiarism.” – Some Writer

    by Dbug on Fri Feb 01, 2013 at 09:43:31 PM PST

    •  How people thought of the states pre-Civil War (0+ / 0-)

      Certainly, after the Constitution was ratified, some people continued to think of the states as being sovereign, but probably fewer than you might think. After they lost the ratification battles in all 13 states, most anti-Federalists conceded that their arguments on behalf of a weak federal government had been rejected and, through the Constitution, the people had conferred supremacy over the states to the federal government.

      But as the Virginia and Kentucky Resolutions show, within a decade there was already backsliding on this issue, particularly in the slaveholding states.

      Beyond any interest in protecting their human property, in the early days of the Republic, people were more familiar and involved with and had greater affection for the states than for the national government. The states were real to most people and the nation was more an abstraction, so their loyalties were more bound to the states.

      But there was a notable exception to this. Those who fought in the long war for independence were more likely to view the nation as a unity and attach their loyalty to it. I think this can be partly attributed to the knowledge that their success or failure, and the likelihood they would be hung as traitors to the King, depended not only on their own local efforts, but also by the efforts of others elsewhere in the colonies/states. To paraphrase Benjamin Franklin, they would succeed together or hang separately.

      Another significant factor, I think, was probably the effect their commanding officers' loyalties had on their troops. Washington and most officers under his command were, or over the course of the war became, nationalists, and their loyalties are likely to have filtered down through the ranks.

      Also, after his victory over the British, Washington was elevated as a symbol of the nation, and public affection and respect for him was deep and widespread across the country. Washington served as president of the Constitutional Convention, and his endorsement of the Constitution, and its proposal of a strong central government, was crucial to its ratification. When he became President, the near-reverence for Washington began to bind people to the nation.

      Andrew Jackson is an interesting example of this dynamic. As a boy of 13, he fought in the militia of South Carolina, ironically enough. He and his young brother were captured and imprisoned together by the British. Jackson was wounded and became grievously ill during that period, as did his brother. Their mother negotiated their release, and Jackson survived after a long convalescence. His brother did not.

      Of course, Jackson also fought in the War of 1812, most famously in New Orleans, and held the rank of major general.

      Jackson's military experience on behalf of the nation's independence is, I think, why he responded so forcefully against the nullifiers. Yes, like them, he was a southerner and supported states' rights. But he had fought, suffered, and watched his brother die for the nation's independence, and above all else, he was a nationalist.

      And as a nationalist, Jackson saw the nullifiers and the secessionists as traitors to the Constitution and the nation the people of the United States had sacrificed so much to create.

  •  Geography, Railroads, & the Telegraph (2+ / 0-)
    Recommended by:
    river0, cocinero

    Prior to the Civil War the States were functionally separate because of the slowness of travel and communication.  By the fastest post in good weather, it took two days to get a letter from Philadelphia to New York.  

    Most governmental functions were handled locally, with the federal government's primary concerns being the maintenance of the Navy, the Post Office, foreign embassies, and the collection of the primary source of Federal revenue: tariffs on sea-borne trade. The Army barely existed.  The costs of foreign embassies were paid personally by the usually wealthy ambassadors.

    While there was trade between the states, it tended to be in bulk agricultural goods like grain and cotton, and primary manufactured products like pig iron, and cloth.  Most secondary manufacture was performed within the states themselves at the level of the blacksmith and millwright,  most food was grown and produced within a few miles of its consumption.

    All this changed in the fast developing revolutions in transportation and communication during the middle of the 19th century.  Canals, steam power, river boats, railroads, the telegraph, the cotton gin, the reaper and other inventions demanded a functionally united United States.  What had been a political abstraction, became a practical fact.

    In many ways the Civil War was a reaction to a new world that was already in existence.  Old times may not be forgotten, but they were then and are now gone for good.

    Labor was the first price paid for all things. It was not by money, but by labour, that all wealth of the world was originally purchased. - Adam Smith

    by boatwright on Sat Feb 02, 2013 at 07:09:08 AM PST

    •  Trade between the states (0+ / 0-)

      Your point is illustrated by an interesting aspect of the mindset of late-18th century Americans that I think is related to the internal transportation infrastructure of the period.  North-south roads between the states were primitive. The better roads connected the large cities of the mid-Atlantic and Boston, or they were east-west roads constructed to bring farm production to market or to seaports for export.

      Likewise, rivers, to the extent they were navigable, mostly ran east-west or northeast-southwest and were not a means of binding the states together economically or culturally.

      As a result, Americans of the day viewed the landmass of the American continent very differently from how we do today. They saw the great expanse of American soil as a barrier while we see it as an invitation. On the other hand, we see the oceans as a barrier, often a protective one, while 18th century Americans saw it as a highway that connected them to each other and the cultural centers and vast markets of Europe.

  •  Another idea (2+ / 0-)
    Recommended by:
    river0, cocinero

    The Boston banks were concerned about the abolitionists and raised the interest on loans needed to plant crops in the south to the point where it made no sense to plant anything.  The south thought they could buy time and once again get support from France.  They believed in the power of states' rights.  Ending slavery would end agriculture in the south.  Lincoln fought for the federal government.  The same stress exists today only instead of slavery it is the threat to control by the "white men owning property" that is at risk.  Romney was the perfect candidate willing to strip down US companies, sell for profit overseas, and ship jobs overseas.  Obama will have to use federal power because the threat of "state's rights" from organized billionaires and ALEC control many states.  Their gerrymander keeps them in control of the House for 10 years unless the popular vote is respected and the districts vote democrat.  We are at a similar tipping point today as we were in the 1800's.

  •  NE Banks (0+ / 0-)

    Just like today, didn't give a rat's ass about the morality of slavery.

    Large southern plantations were mortgaged up their eyebrows.   Slavery was fundamentally uneconomic -- the problem being slaves had to spend a large amount of their productive labor feeding, clothing, and housing themselves.  With  insolvent creditors the normal response of banks is to raise interest rates.

    The Civil War's economic background was largely about the repudiation of that debt by southern landowners -- political bankruptcy without the usual  liquidation and loss of valuable human chattels.

    Labor was the first price paid for all things. It was not by money, but by labour, that all wealth of the world was originally purchased. - Adam Smith

    by boatwright on Sat Feb 02, 2013 at 09:18:19 AM PST

  •  A fascinating and thorough analysis. Thank you!! (1+ / 0-)
    Recommended by:
    cocinero
  •  Thanks for this excellent diary. (0+ / 0-)

    The truth of our faith becomes a matter of ridicule among the infidels if any Catholic, not gifted with the necessary scientific learning, presents as dogma what scientific scrutiny shows to be false. - Thomas Aquinas

    by oxley on Sat Feb 02, 2013 at 06:53:05 PM PST

  •  From the Iowa Republican Party Platform (2+ / 0-)
    Recommended by:
    river0, publiustx
    We support constitutional state sovereignty including nullification of federal oversteps.
    and
    [W]e call for nullification and interposition by state and county officials and law enforcement in regards to the Affordable Care Act (Obamacare). link
  •  Feds attacking Mendocino county (0+ / 0-)

    county not rich, Feds making it costly to resist.

    Feds want list of state legal medical MJ growers who signed up to be compliant with the county zip tie program.

        This pisses me off that the Feds are doing this...it seems to be the rubber meets the road subject of this diary :>, apologies if not.

    This machine kills Fascists.

    by KenBee on Sat Feb 02, 2013 at 11:04:28 PM PST

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