Nullification: Jefferson's Remedy for Tyranny, Yesterday and Today

0:00Our final speaker, senior fellow of history at the Ludwig von Mises Institute, he holds a bachelor's degree in history from Harvard, PhD from Columbia, author of a number of books, New York Times best seller, the politically incorrect guide to American history, 33 questions about American history you're not supposed to ask, the church and the market, he had Thank you, ladies and gentlemen. It's my second time here at FreedomFest. It's always

0:55I've just been so down and depressed lately about the direction of things that it just keeps popping out even in the midst of the optimism. So for instance, this just happened. Someone gave me a copy of one of my books and asked, could I sign it for a friend of his who had just the other day become a U.S. citizen? What should I say to this person? My first instinct was, how about, welcome to the Titanic. But, you know, I decided to be nice and have some manners. I said something nicer. All right, well, what I'm going to talk about today is this subject of nullification. Now, this is something that's true that the New York Times is not going to recommend to you.

1:44MSNBC is not going to recommend it to you. John McCain is not going to recommend it to you, so you have to wonder, are you even allowed to think it? Right? I mean, none of these sources are recommending it. But to me, that sort of is precisely what does recommend it. Precisely the fact that the establishment is not interested in or feels threatened by it makes me think, well, it might be something to this. So that's why I decided to write this here book. And you'll notice on the cover we've got the Obama White House here. The book is premised on the idea that just continuing to try the same old things to restrain Washington D.C. seems unlikely to work.

2:45Now, the guardians of approved opinion will say nullification is crazy, because again, Chris Matthews doesn't talk about it, Newsweek doesn't mention it, so how could it not be crazy? But by crazy, they mean that it doesn't fall within the three-inch spectrum from Mitch McConnell to Hillary Clinton, and that is true. It doesn't fall anywhere there, but nor should any normal American want to fall anywhere within there. So it's true, yes, The Pro-Government Party has spent the better part of a century taking ideas no one had, foisting them on the public until they become sort of popular or the public sort of gets the message that I guess we're supposed to believe in X, Y, or Z, and then rams them through to the general public.

3:33I don't see why we can't do the same thing. Incidentally, my favorite example of that is the Elizabeth Dole presidential campaign. Do you all remember Elizabeth Dole, Bob Dole's wife? I'm sure a lovely woman, right? I mean, nothing offensively wrong with her. But it's not like in the 1990s, people were saying, man, if I can't vote, if I don't have the opportunity to vote for Elizabeth Dole for president, I don't think I should go on living. I mean, there just weren't people like that in the country. And if there was no groundswell of support, no citizen groups calling for Elizabeth Dole to be a presidential candidate, how did she become one? She became one because people who form what our opinions are supposed to be went on television and said in somber tones, well, I happen to think Elizabeth Dole would make a fine candidate.

4:21And they just do this over and over and over until people start saying, you know, I've heard that Elizabeth Dole would make a fine candidate. And this just seems to, and by the way, one of those people, of course, was Bob Dole. But I mean, I don't see why that can't work for us. Like we don't have a lot of people in the media, but we know a lot of people. We have a lot of friends, we have the internet, and the idea of nullification has been sort of brewing and circulating here and there, but thanks to the internet, people can learn about it, people can hear about it, that it exists and could actually be an option. Now it's true that in my opinion all governments are in some way sort of beyond saving, that ultimately they just grow and grow and grow, they have every incentive to grow, it's very difficult to stop them. But that doesn't mean, though, that institutional factors can't slow or even from time to time reverse the growth of a government.

5:16And so, you know, it's worth at least trying. So my argument is that we ought to try something different. I mean, don't just keep voting for plastic men and hoping that that'll change things, that it's not enough to issue policy reports. Not that there's anything wrong with policy reports. People can learn from policy reports. The purpose of a policy report is to educate the general public so that they understand why this policy or that law is a bad idea. It's not going to influence the politicians. They're not standing around saying, oh my gosh, I just read this policy report. Can you believe it turns out that if you tax the private sector so that you can hand money to your politically favored friends, this hurts the economy? I mean, who knew? I can't believe it. I've been doing this all this time. So we need to do something different from this. It's wonderful to have conferences and give speeches. It's wonderful to support people who give wonderful speeches and they're going to get in office and fix things. That's just super. That's sure gotten us places. But I'm suggesting we have to supplement this with something else. And what I'm suggesting is that we consider the long dormant and up to now despised

6:30but suddenly making a comeback, Jeffersonian tradition of political decentralization, that's step one is decentralization, that maybe the best strategy is not to try to conquer Washington D.C., maybe it's better to focus on more local units, states and local governments, and get a bunch of people in there with a backbone, and some of these people, by the way, they're different from, and of course I accept Ron Paul, but most people in the U.S. Congress are ego cases who are secretly hoping to be president someday, so they're The guy who's in the local state house, he might even be your neighbor. There's a remote chance he might be a decent guy, who if you say to him, hey man, you could be a part of history standing up to this thing, maybe he might do it. Who knows? But there's at least a remote chance you can beat your state legislature. We've heard stories of people who have done it. Very rare to hear a story of how I defeated the U.S. Senate single-handedly. You're not

7:27The Jeffersonian Decentralist story includes the right of state nullification. The argument behind state nullification is simply that the states ought to refuse to cooperate in the enforcement of unconstitutional laws. Given that, the vast bulk of what the federal government does is clearly unconstitutional by the standards of the people who ratified of the Constitution, and this is demonstrable and I do demonstrate that I think in nullification. Given that, there's certainly a lot of work we can be doing, a lot of things to be nullified. But Jefferson's argument was that if the federal government can have a monopoly, is allowed to have a monopoly on determining the scope of its own powers, we have no right to be surprised when it keeps discovering new ones.

8:24So the states have to function as the check on the federal government, otherwise it ain't going to work. Now that doesn't mean that we're saying that the states are all wonderful. The states, the state governments are full of sociopaths too, but they are marginally easier to control sociopaths, and they are marginally more responsive to public opinion. Now when you talk about this sort of idea, you are going to elicit some opposition. As I've said, the establishment isn't going to like it. But also the political left isn't going to like it because for some reason they think it's progressive to have a strong centralized state unfettered by checks from the states. I don't see why that would be necessarily progressive.

9:11That would make Hitler's Germany the most progressive society on earth. So I don't see why this is naturally considered to be progressive. There are some leftists, some progressives, who do believe in local self-government. I do believe there are some people in Vermont who basically favor just running their own affairs and having farmers markets and telling the feds to go take a hike. But they are a rare breed, unfortunately. And likewise, on the political right, it's not like they're a huge number favoring this either. I mean, yeah, right now everybody's for political decentralization because we don't like Obama. But try advocating this in a couple of years and maybe they'll want to put you in jail. So what we're trying to do here is talk to people and say, regardless of what your political views are, we can agree that we ought to be at least discussing them face to face in our own neighborhoods and not letting these totally unresponsive boobs and jerks and thieves and

10:06liars come up with solutions that are unsatisfying to us both. Maybe in Vermont they want to shut down big box stores or they want to do things that I wouldn't like, and I might want to do things that they wouldn't like, but usually what the US government does is something that neither one of us likes. Neither one of us liked the bank bailouts, for example. We were all against it. They did it anyway. These people cannot be controlled. But the left, by and large, is going to be opposed to this because they, rightly or wrongly, associate it with disreputable causes, and I'll have more to say about that a little later. I want to run into opposition from, I'm sorry to say, some libertarians, because there are some libertarians, and I'm not here talking about Randy Barnett if you've been following that. I like Randy Barnett. I think he's an okay guy. I think he's wrong about this, and I answered him on lewrockwell.com today. I'm not thinking about him. I'm thinking

11:00about a lot of D.C. sort of libertarians for whom the idea of the states is just kind of embarrassing to them. Like, their strategy is the Hamiltonian strategy. Their strategy is, let's conquer DC and make sure we impose liberty from above. Yeah, how's that been working out? And I'm not saying, by the way, you shouldn't try, might as well, you know, couldn't hurt. But don't denigrate other people's strategies. That's my point. Don't suggest that anybody who supports the states is probably some secret oppressor of people. I mean, come on. Come on now, for heaven's sake. So there's that. But you will find a lot of people who are sympathetic. And that is a lot of disgruntled conservatives. I would say also the majority of libertarians, the regular libertarians who live in the normal parts of the country, you will find them in support. And you will find a lot of the Tea Party people in support, except they don't know they're in support yet. And what do I mean by that? Well, I have a friend named

11:53Michael Bolden, not Michael Bolton the singer, Michael Bolden, who gave a wonderful Tea Party speech back on tax day, April 15th. He runs something called the 10th Amendment Center. Bolden gives this rip-roaring speech about nullification to this Tea Party group. Now what is this Tea Party group expecting him to talk about? Well, they're expecting him to say, hey, you know, in 2010, let's vote for a different stooge from the one who's representing us now. Yeah, yeah, yeah. He refuses to give them that speech. Instead, he gives a beautiful exposition of nullification and the Virginia and Kentucky resolutions of 1798, which I'll be talking about here, and at first, they don't understand what he's saying at all. He's saying to them, when our liberties are taken from us, and our rights are violated, he said, should we sue them in their own courts? And they cheer for this, but he's sort of saying, well, actually, no, that's a waste of time. So he's saying, should we vote them out? And they're going, yeah, we should vote them

12:57Let me talk to you about the Virginia and Kentucky resolutions of 1798. Now in a group like this, you mention those and people say, woohoo, Virginia and Kentucky resolutions. He talks about this and you can hear crickets. People say, what? What's this guy talking about? But by the end of this speech, these people are cheering like crazy. They're ready to go out and nullify the next thing that comes down. Where do we start? Where do we sign up for this thing? So there is a potentially huge market for this idea. Now if you were to read this book, and frankly I'm happy with how this came out, because I think the argument in it is, it's sober, it's reasonable, it's based on history, it's based on morality, the second half of it is full of primary documents that nobody reads, but that need to be read, and again just to show that I didn't make this up, this isn't This is real stuff from real American history. I'm kind of sticking it in their faces by putting these documents in there. Pretend these don't exist. If you were to read this book, I think you will not walk away from it saying, that's just crazy. That's the one thing I think you will not say. You might say, I disagree with this. You might say, I'm an anarchist, I don't care about government anyway, so this whole thing is a waste of time. You might say that, but you will not say, this is just crazy. The argument is much stronger than

14:22Now, but, but, but, but, before we get started in the full exposition, let me anticipate one of the many objections, and I answer a lot of the objections in this book. John C. Calhoun, wasn't he one of the key architects of nullification, and wasn't he really just looking to protect slavery? Well, Calhoun did favor nullification, that's true, but the idea really originates with with Jefferson, which is why Andrew Jackson, when he was castigating South Carolina, kept referring to the Virginia Doctrine, the Virginia Doctrine, because he knows it comes from Thomas Jefferson. It does not come from Calhoun. But secondly, the abolitionists themselves, when they fought against the fugitive slave laws, the abolitionists themselves referred to Calhoun by name when citing his arguments to bolster their own case for state nullified and, of course, Liberty Fund published a volume of Calhoun's writings. Presumably, we are grown up enough to be able to read this guy and assess the merits of what he's saying.

15:29Okay, so what is nullification? Again, it is the idea that the states ought to prevent the enforcement of an unconstitutional law within their borders. The arguments for it are fairly straightforward, that without this power, the federal government will just continue trampling on your rights, Science, that this power cannot safely be entrusted solely to the courts. The federal courts are themselves a branch of the federal government, so therefore they are not impartial arbiters. And as Tom DiLorenzo said, they wind up rubber-stamping everything anyway. I mean, some protector of our liberties, these bums are. And I'm supposed to be told, well, just keep on waiting. Just wait. Eventually we'll get some better people on the court. How many, I mean, are we going to be still saying this 500 years from now? I mean, like, at what point do we say this doesn't seem to be working?

16:15So Jefferson took that position, and Madison and others took that position, that the courts are themselves part of the branch, of the wing of government, the federal government, that you're fighting against. They are not impartial arbiters. They might not even choose to hear the case in question. So then what do you do? There has got to be some kind of additional defense mechanism. And elections are not a sufficient defense mechanism. I I presume I don't need to persuade any of you in this room of that, that sometimes elections do not lead to the selection of wise people. I mean, there's once in a while, once in a while you get a real dum-dum in there. So that's not necessary. And then suppose you did, suppose you vote out some bad guy and you replace him with some guy who gives great speeches.

17:02Hey, I'm going to do this, I'm going to do that, I'm going to protect your liberties. Then he gets in there and does the exact opposite. So again, you get screwed. Like, what can you do? Wait for the next election. Okay, well, what about when you're in Thomas Jefferson's situation? You've got the Alien and Sedition Acts of 1798. Then, among other things, make it a crime for you to criticize the President or Congress. You can go to jail for this or be fined. Was he supposed to sit around and wait for the next election? His newspapers can't even criticize the sitting President without having their editors imprisoned. What is he supposed to do? Oh, just sit around and wait? No, we're going to fight this thing. Incidentally, when those acts were passed, there was even a congressman, a congressman from Vermont who was put in jail for what, by modern standards, is extremely mild criticism of President John Adams.

17:56So this poor congressman, U.S. congressman, is imprisoned and the people of Vermont supported him so strongly that he was re-elected to Congress while still in prison. That's, that's, that's heroism. It's like when Eugene Debs ran for president from jail in 1920 and the campaign button says, for president, convict number 26573. That's beautiful. So Jefferson and Madison draft respectively the Kentucky and Virginia Resolutions of 1798. Again, most of you know this, but it depresses me. The U.S. Constitution has like five zillion fans on Facebook. The Virginia and Kentucky resolutions have like 300 fans. Like, what is this? Come on, people.

18:47These documents are unbelievable. The Virginia resolutions say the states are duty-bound to resist unconstitutional laws. You don't have the right to sit back and allow this to go on. You've got to resist it. The Virginia General Assembly, when it was debating the Virginia Resolutions of 1798, agreed, everyone concurred that unconstitutional laws were not laws. They were void in and of themselves. So therefore it followed logically that you can't enforce them. You can't enforce a non-existent constitutionality. The Kentucky Resolutions of 1798 were perhaps even bolder, and bolder still were the follow-up Resolutions, the Kentucky Resolutions of 1799, that used the word nullification. Nullification is the rightful remedy, said Kentucky. In New York, Congressman Edward Livingston, looking at this offensive legislation, said as follows, if regardless of our duty as citizens and our solemn obligations as representatives, regardless of the rights of our constituents, Regardless of every sanction, human and divine, we are ready to violate the constitution we have sworn to defend.

20:00Will the people submit to our unauthorized acts? Will the states sanction our usurped power? Sir, they ought not to submit. They would deserve the chains which these measures are forging for them if they did not resist. Now where do these ideas come from? Jefferson just think them up one day, which would be fine, by the way. Jefferson's got a good mind. I'm sure you can think things up very quickly. But no, in fact, Jefferson is just simply developing ideas that go back to the state ratifying convention of Virginia and beyond even that. In 1788, Virginians were by and large skeptical of the new Constitution. And Patrick Henry, among others, said things like, look, this Constitution, look at this general welfare clause. What insane lunacy could you not pass by citing the general welfare clause, right?

20:52Every dictator thinks he's supporting the general welfare. This is ridiculous. And Patrick Henry was told by supporters of the Constitution, he was told, don't worry. This government is going to have only the powers that are expressly delegated to it. So they use the word expressly. So in other words, the idea of the 10th Amendment is already implicit in the Constitution as drafted. And moreover, George Nicholas, who became the first Attorney General of Kentucky, and who served on the five-man committee that was drafting Virginia's instrument of ratification, said that if this federal government attempts to impose upon us any supplementary condition beyond those we agreed to when we ratified the Constitution, that is, if it exercises a power that's not listed in Article 1, Section 8 of the Constitution, then don't worry, Virginia will be exonerated from it. We just point to the statute and we'll be exonerated from it. So you can see there clearly is the germ of nullification right there.

21:48Even with that assurance, Virginia barely ratified the Constitution. Barely. But with that assurance in there, and then I trace out in the book, I show how in the ensuing years, the Virginia General Assembly is consistently reminding people of the promises that were made to them when they ratified the Constitution. That we are subject to this thing only this far and no farther. And so that when Jefferson introduces the Kentucky resolutions of 1798, this is not like a bolt of lightning out of nowhere. This is just building on an already existing line of thought people knew about already. This was very much in the mainstream of Virginian thinking. This is not crazy or whatever people say about it today. Now wasn't this all, though, just some kind of smoke screen behind which to defend slavery?

22:34You get that a lot. Anytime you talk about the states or political decentralization, immediately it is assumed that anyone who favors it must have some kind of sinister intentions, that you must be trying The Greatest Opponent of States Rights in the 20th Century was Hitler, and would also be Stalin, and so on and on. How do you think Stalin felt about the Soviet Republic's nullifying legislation? No, we prefer not to have people sent to the gulag, for example. That's not going to happen. So there's nothing in particular about the apportionment of powers between a central government and outlying regions that is necessarily pro or anti-liberty. I think on balance, liberty is more likely to be preserved in a system in which you have a multiplicity of jurisdictions than if you have one giant one. But it is possible that the one giant one could be ruled over by a saint who just always does the right thing. So in other words, we can't just look

23:36The Federal Government itself, which critics of these ideas love so deeply, the Federal Government itself threw Japanese Americans into internment camps, for goodness sake. Power can be used for wicked ends no matter where it is reposed. But the fact is that slavery was not in fact what nullification was used for. There is no case of nullification being used on behalf of slavery. In fact, the very idea of the strict construction of the Constitution, which is part and parcel of nullification and Jefferson's constitutional ideas, in fact does not by and large come from supporters of slavery. Eugene Genovese was the ex-Marxist Southern historian, one of the greatest Southern and historians of our time, said that of the five Virginians who made the greatest intellectual contributions to the strict constructionist interpretation of the Constitution, and he cites George Mason, Thomas Jefferson, John Randolph of Roanoke, St. George Tucker and John Taylor of Caroline, he said, well, really, you see only one pro-slavery figure in this. He says, if strict construction and state rights were merely or essentially a facade for the defense of slavery,

24:59We need to account for a disturbing and incontrovertible fact. Of the five, only Taylor was pro-slavery and even he regarded it as an inherited misfortune to be tolerated rather than celebrated. Mason and Randolph spoke out against slavery. Tucker wrote the first important plan for emancipation to come out of Virginia. And when the legislature ignored it, he appealed to the American people by including it as an appendix to his edition of Blackstone, which was widely read by those who aspired to the bar and indeed by a great many of those who, in the manner of the day, aspired to be proper gentlemen. In the minds of these five men and to a considerable extent in their political practice, strict construction and state rights had little to do with slavery.

25:45So what in fact was nullification used for? Well, as we've seen it was used on behalf of the cause of freedom of speech. It was also used by the New England states that resented the Jeffersonian embargo that was imposed in late 1807 and continued through early 1809, which they believed itself to be unconstitutional, but also unconstitutional in its enforcement, because they believed there were a great many unconstitutional searches and seizures taking place, and on that I don't think anybody really disputes that. So what did they do? Well, they did the best they could as states to say, well, we're not going to enforce this, we're not going to cooperate in it. When a federal collector at Oswego requested help in enforcing the embargo, the New York's governor refused to provide the help. The state courts of Rhode Island prevented the detention of vessels there. The Massachusetts legislature officially condemned the embargo as in many respects unjust, oppressive and unconstitutional and not legally binding on the citizens of this state.

26:47Now it doesn't matter what your political predilections are or what kind of libertarian The Governor of Connecticut said whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the state legislatures, in great emergencies, devolves the arduous task, it is their right, it becomes their duty, to interpose their protectors.

27:20protecting shield between the right and liberty of the people and the assumed power of the general government. Now interpose is from the language of 98, 1798. It's the language of the Virginia resolutions. Interposition, the positioning of a state between the federal government and its crummy law and the people of the state on the other hand. The Connecticut legislature was very happy with this statement of its governor and said this, resolve that to preserve the union and support the constitution of the United States, it becomes the duty of the Legislatures of the States in such a crisis of affairs, vigilantly to watch over and vigorously to maintain the powers not delegated to the United States but reserved to the states respectively or to the people, that of course is a reference to the Tenth Amendment, and that a due regard to this duty will not permit this assembly to assist or concur in giving effect to the aforesaid unconstitutional act passed to enforce the embargo. And then

28:13they go on and get more radical still as the resolutions continue. The Legislature of Rhode It was the duty of this General Assembly to interpose for the purpose of protecting the people of Rhode Island from the ruinous inflictions of usurped and unconstitutional power. And again, those resolutions make very interesting reading. Now, as it went on, as the war of 1812 proceeded, there was a still more stringent embargo enforced than Jefferson had imposed during his tenure. and once again we have resistance and states saying that this is unconstitutional, we're not going to assist in its execution. Now very interestingly, given that Daniel Webster is so often a villain in American history, at least in my reading, is to note what Daniel Webster had to say in late 1814 when it looked as if during the War of 1812 that the Federal Government might attempt military conscription.

29:15and Conscription. Now Webster was at that time a member of the House of Representatives in New Hampshire. He later became a member of, in other words, the U.S. House representing the state of New Hampshire and then later he represented Massachusetts both in the U.S. House and in the Senate. So he gives a speech, one of his best speeches in which he denounces military conscription as being incompatible with both the Constitution and a free society And he said, where is it written in the Constitution, in what article or section is it contained that you may take children from their parents and parents from their children and compel them to fight the battles of any war in which the folly or the wickedness of government may engage in?

30:01There was a time when people used to talk like that in Washington, it's amazing. And so what should be done? What if the federal government should enact conscription? What should be done? If conscription should pass, it would be the solemn duty of the state governments to protect their own authority over their own militia and to interpose between their citizens and arbitrary power. These are among the objects for which the state governments exist and and their highest obligations bind them to the preservation of their own rights and the liberties of their people. I express these sentiments here because I shall express them to my constituents. Both they and myself live under a constitution which teaches us that, and now he quotes the New Hampshire Bill of Rights. The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness with the same earnestness with which I now exhort you to forbear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their

31:18own liberties. Alright, now, there are a lot of speeches that kids have to slog through as they go through school. They've got to slog through a lot of inaugural addresses, you know, a whole lot of, you know, big puffery about nothing. But you know, who's reading that speech? Is that speech being singled out to anybody? I mean, no. It's like this speech never occurred. But it did occur. There it is. I'm reading it to you. But it's just gone. It's gone. I mean, I don't know why. I don't know why. We can develop some theories, but that speech is gone. The legislature of Connecticut warned that if military conscription were forthcoming, that they weren't going to go along with it. They said that the conscription bill was not only intolerably burdensome and oppressive, Well, they didn't get their conscription bill, but they did enact a bill for the enlistment of Minors, so we can now enlist children in the armed forces.

32:37Well, Connecticut and Massachusetts said, well, that just seems kind of creepy, particularly the possibility, given the way recruiters can sometimes be, that maybe these kids will give their consent, but they're not at the age of reason, or they may be at the age of reason, but they're not at the age where they could legitimately live on their own, let's say, and they could just scurry away with them without the consent of the parents. So the legislature of Connecticut passed an act to secure the rights of parents, masters and guardians. And it described the federal government's act as repugnant to the spirit of the Constitution of the United States and an unauthorized interference with the laws and rights of this state. And it required judges in that state to release on habeas corpus any minors who were enlisted without the consent of their parents and anyone who tried to remove In 1820, the Ohio Legislature declared, resolved by the General Assembly of the State of Ohio,

33:58But in respect to the powers of the governments of the several states which compose the American Union and the powers of the Federal Government, this General Assembly do recognize and approve the doctrines asserted by the legislatures of Virginia and Kentucky in their resolutions of November and December 1798 and January 1800, which is Madison's follow-up report, and do consider that their principles have been recognized and adopted by a majority of the American people. And they go on to say that one indication that the American people supported the principles of 98 was that in the year 1800, the party of the, we call these ideas decentralization and the power of nullification, we call them the principles of 98 after the resolutions of 1798, and the party that supported these principles, the Republicans won, not the Republicans of today, it's the different Republicans, won the election in 1800, Jefferson was elected.

34:49And so the Ohio legislature went on to say this is evidence that the people said you you can stick your federal supremacy where the sun don't shine. Sorry, that's a little crude. All right, now what are the things that northern states use this for? Well, of course, again, with regard to the fugitive slave laws, the northern states didn't like these. Now, the fugitive slave laws required you to return runaway slaves to their masters, and there is indeed a clause to this effect in the Constitution, but there were provisions of these laws, particularly the one in 1850, that were constitutionally dubious, and I go into the details of that in the book. And so a number of the northern states did everything they could to obstruct the enforcement of this law. And in particular, the state of Wisconsin, in effect, said, look, you know, if somebody is accused of being a fugitive slave, we're going to give that person a jury trial before sending him out of the state.

35:42It is not sufficient for some guy to come into our state and say, here's a physical description of the guy I'm looking for. Hey, that kind of looks like him. Well, you know, this system does seem rather liable to abuse, it seems. Instead, no, we want to gather all the evidence and until it is absolutely clear to everyone's satisfaction, no one is being taken out of this state. Now today, of course, again, nullification has been so toxified, the idea of political decentralization is so toxified, that it's hard for people to imagine that this could have been used on behalf of causes that we would consider noble. And even about a hundred years ago, I want to quote you from a speech a hundred years ago, even then, even the early 1900s, people are still, ah, nullification, terrible, terrible, terrible, wicked, evil.

36:29Yet I found an interesting speech delivered by a scholar named Robert Wilde in 1909. He's speaking to the Wisconsin Bar Association. And he's trying to tell them, I agree with you, nullification is stupid and wicked and unconstitutional and blah blah blah. There are gentlemen still in our own midst, some within the sound of my voice, who lived through and participated in that great humanitarian movement, and I stand in their presence with reverence upon my lips and affection in my heart. But I ask, speaking calmly from the standpoint of my unemotional text, Did their acts differ in principle from those of South Carolinians who also engaged in nullification, save only in degree?

37:15Were they not also purely and simply nullifiers, acting to be sure in the spirit of a broad and sweet humanity, but nullifiers nonetheless? Now, in Wisconsin we have the case of Joshua Glover, who in March 1854 was taken into custody by a Federal Marshal who was trying to enforce the Fugitive Slave Act of 1850 Act of 1850, and said, look, this Glover is a runaway slave. Well, a local anti-slavery newspaper editor, Sherman Booth, frantically distributed handbills on the streets of Milwaukee to say to people, hey, hey, hey, these crumbs are coming into our state to try to take this Joshua Glover out, and Glover's never given anybody any problem, he's a perfectly upstanding citizen, hardworking guy, and now they're trying to take him out without a jury trial.

38:00All of us have to meet. We have to have a mass meeting because this man's liberty is is at stake. And so, when this mass meeting occurred, the great mob was addressed by Sherman Booth. He urged them that they must protect the great sacred right of habeas corpus and the right of trial by jury. And by the time he was done speaking, this mob had stormed the jail and liberated Joshua Glover. Well, of course, you're not allowed to do that. You're not allowed to give speeches that incite people to do these things. So Sherman Booth got in trouble. He was arrested and brought before a federal district court. He applied for a writ of habeas corpus, and a judge of the Wisconsin State Supreme Court ordered him released. And the State Supreme Court went on to say the Fugitive Slave Act of 1850 was unconstitutional and void.

38:46So Booth, not long afterward, was arrested again. Same federal marshal arrests him again. So this time he's found guilty of violating federal law. They throw him in prison. They fine him. Once again, by order of the State Supreme Court, he is released. The State Supreme Court was so uncooperative in submitting a record of the case to the U.S. Supreme Court that it wasn't until March of 1857, this is three years after the initial complaint, when finally the U.S. attorney was able to get a copy of the record. They finally got it. Finally December 1858, the U.S. Supreme Court said, all right, look, that is it. Booth has got to be turned over to federal custody and again State Supreme Court refused to comply. In 1859, the Wisconsin legislature heartily approves of what its state Supreme Court has been doing and adopts a resolution in support and says that the U.S. Supreme Court's action was without authority, void, and of no force.

39:44And here's its full statement, now if you've ever read the Kentucky resolutions of 1798 and 1799, you'll notice this is drawn right from those documents word for word over sixty Resolve that the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself, but that as in all other cases of compact among parties 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. So that is to say, each state has the right to decide for itself when the Constitution has been violated and what kind of, what mode of redress we want. that we ought to pursue, and then it goes on and continues to quote from these resolutions, and it concludes that the states being sovereign and independent have the unquestionable right to judge of infractions and that a positive defiance of those sovereignties of all unauthorized

40:44acts done or attempted to be done under color of the Constitution is the rightful remedy. So what this boils down to is that if the people are determined to resist, you can have all the court decisions you want, all the federal government edicts, but if people just won't do it, well, then you have a chance to push back. You have a chance to fight back with the state government in effect acting as a shield for you, as a shield in a kind of act of civil disobedience. There is a story, a recent historian wrote a book called The Rescue of Joshua Glover in 2006. And this historian, Robert Baker, describes a situation this way. He says, The rescue of Joshua Glover had by 1860 become a national event. Wisconsin's steadfast resistance had morphed from a fugitive slave rescue to the interposition of the state with such intensity that all federal officers, from a deputy marshal to the chief justice of the U.S. Supreme Court, had been stung by the defiance. Most off-putting to them was its success. Despite immense pressure,

41:53the stand against the Fugitive Slave Act survived again and again at the polls.

42:01Now, some of you may have seen a little video that a couple friends and I put together sort of in promotion of the book. It's called Interview with a Zombie. Did anybody see that? Thanks. If you haven't seen that, I would ask as a personal favor, not that you owe me any favors, but if you ever need anything from me, you can just call me and I'll try and do my best, but I'm going to ask you for a favor right now. Go to interviewwithazombie.com, interviewwithazombie.com. And I made this video basically because I knew what was going to happen to me. You release a book like this and the response will be slavery, neoconfederate, Hitler, whatever things you can think of they're going to throw at you.

42:50So the premise of the video is that I'm being interviewed by an actual zombie. This is a member of the undead who has his own television talk show. I know, could you imagine a zombie having a talk show? Who ever heard of such a thing, right? But he interviews authors apparently and the show is called Interview with a Zombie. And then the show comes up, you know, welcome to Interview with the Zombie, and there, you know, we are chatting. And then we decided when we made this video, it's Bob Murphy, fellow Mises guy, and Bob and I decided that the zombie can say only one word at a time. That's how we're going to do it. He can say only one word at a time. So how does he start an interview? Well, all he can do is just hold up the book and say, book. So I kind of, you know, look around and start talking about the book and explaining it.

43:37And then after he hears my answer, I explain what nullification is, I give, you know, again, you don't have to agree with it, but at least, you know, it's not a ridiculous argument that I'm making. At that point, the zombie realizes, okay, I've invited some guy who's way out of the mainstream out of my program, so he immediately, so he says, neoconfederate, which is one of these buzzwords that the left uses when they have no argument, they say, well, we'll just utter this toxic sounding word and everybody will scamper away. So I've got the zombie doing it, because that really is what they're doing, it's like acting like a zombie. So I sort of, with a puzzled look, I say, well no, actually these principles were used more often by northern states than by southern, so I don't think you're, and then he introduces and interrupts and says, slavery. And again I say, no, actually no, nullification was never used on behalf of slavery, but it's

44:22interesting, you know what it was used on behalf of? And he pauses and says, slavery? Well no, I mean I just said, weren't you listening to me? So anyway, so this just goes on and on, and by the end he's just throwing out words, One word after another, and then the thing ends and off we go, but don't miss the very last few seconds because at the end it fades out and then it comes up with the book cover and my website and stuff. Don't just turn, wait until it goes all the way to the end because the media guy who did this for me is just brilliant. At the very last second, Bob's zombie head pops back onto the screen and he says, book, and then goes back down, I mean it's just, absolutely wonderful, just great, just great. But anyway, so I did that because it was sort of like a preemptive strike, as if to say, look, if you're going to come after me and attack me, you better be making an argument.

45:15I mean, you better not just be sitting here rattling off words, okay, that are going to sound scary to people. Like, make an argument. This is a serious point and I do not see, when we look at California considering decriminalizing and Marijuana, not just medical marijuana, but across the board, that is a direct defiance of the federal government. I don't see how it's helpful to use the word neoconfederate. I mean, what in heaven's name does decriminalizing marijuana have to do with the Confederate states of America? I mean, I would love to know what in the world the connection is or what this has to do with racism or whatever. I mean, we've got to have real discussions, and Real Substantive Arguments with Each Other. Now, a lot of times I've been getting this response.

46:01Well, gee, I mean, if you have nullification, then, you know, this could be chaotic, because we could have some states nullifying some things and other states nullifying other things. And so some states would have one policy and other states would have another policy. And people are posing this like this is the worst outcome imaginable. Like, whoa, whoa, whoa, go hide under the bed from this scenario. Do you realize that the nightmare scenario they're describing is the United States as the framers established it? That's what it's supposed to look like. Precisely that.

46:38Where, yes, Vermont is different from Kansas, which is different from Oregon, which is different from Florida. That's great. That's wonderful. You can find some place where you fit in, where you can live in peace. and Peace. Wonderful. There's nothing wrong with that. But that's exactly what the United States is supposed to be, is a bunch of self-governing communities. Some of them are going to do stupid things, but at least you have the chance to leave. You can vote with your feet and go somewhere else if they do that. Now, again, of course it's true that decentralization is in and of itself no guarantee of liberty, because little governments are still governments. Again, they still may well be full of sociopaths who don't understand economics or social Social Peace and they just want to loot you. That's definitely true. But again, at least you have some recourse and at least the various authorities have to compete for a tax base.

47:33If they oppress you too much, you'll leave. This was how liberty came to Western Europe in the high middle ages and beyond, was that you had so many tiny little political units that if any one of them became too oppressive, you'd just go five feet, and then you're subject to a different one. So they've got to keep things, they've got to keep regulation, taxation, all that stuff down. That's why scholars who study this period say that capitalism came into effect in Western Europe Thanks, by and large, to political anarchy. This is nothing to fear. It's something to celebrate. This is the root of our whole civilization. Now, also today, I mean, think about today. Realistically today, right now, you know, a lot of bad things happened in Birmingham, 1963. Nobody's denying that, okay? No reasonable person's denying that. What I'm talking about is right now, today, 2010, when everybody has the right to vote.

48:25So it's much harder to pick on one particular minority. In 2010, are you really going to tell me that the big threat to our liberties is coming from Boise, Idaho? I mean, come on now. Let's be realistic. You know, the war on drugs, we all know the effects this has had on minority neighborhoods. This is a federal policy. Wouldn't it be great to see a city or a state say, you know what, you may have your crazy war on drugs, but we're not going to devote any resources to it. How about that? What are they going to do? How many DEA agents do they have? What are they going to do? I mean, be creative, think, instead of sitting back and saying, well, if we get enough people in office who, yeah, yeah, yeah, and in the year 2710, we'll still have the drug war. You know, some of us are a little more impatient than that. Let's try some experiments.

49:10Who knows what we can get away with? The federal government has been busy getting away with stuff for over a hundred years. Why don't we get away with something once in a while? I decided to write this thing because five years ago without any central direction, without anybody specifically or explicitly calling for it, we had a couple of dozen states that in effect said we're not going to comply with this Real ID Act that involved the standardization and centralization of identification procedures. And so in effect the federal government had to retreat and they're trying to do it a different The 9th Circuit even said, there is no right in the Constitution to be preserved from excruciating

50:15pain and suffering. If in order to be preserved from it, you need to use medical marijuana. Well, that's super humane. That's just super. And yet, the Supreme Court's against it, the Justice Department's against it, and they're still doing it anyway. There are a thousand medical marijuana dispensaries operating in L.A. County alone. They're still doing it anyway. And so now, you give that example, though, and people will say, well, that's not a good example. The Justice Department has decided to stop prosecuting these cases. Yes, I know. Why? Do you think they just woke up one day and said, you know, we're interpreting the commerce clause too broadly. We better leave this alone. I said, people weren't going to do it. So they basically said, well then forget about it. Well then, you know, who knows to the extent to which this can be used. But that's certainly a beginning.

51:02These examples are certainly a beginning. They're not nothing. And now we see states States that are drafting nullification resolutions and legislation regarding cap and trade and many other things. So I've got, I have a site, statenullification.com, where I've got some links where you can click on them and see where and what states are they trying what, and where is this going on. Statenullification.com will redirect to my page on this. So who knows where it can go, but as I say, it's being picked up, there was even an article in the New York Times about how social liberals in Massachusetts are thinking that maybe they can use the 10th Amendment. Well, I say the more the merrier. You know, regardless of whether I agree with him or not, the level at which we should be arguing these things is the lowest one possible. So the more the merrier. Let's all come on board. I once asked a left-wing critic, would you have supported the use of state nullification against the roundup of

51:57the Japanese in America during World War II? Because this person is totally against nullifications, The Equal Protection Clause, as applied in Yick Wo in 1866, would have worked just as well. I see. So in other words, the goons are whizzing by you while you're holding up your court precedent in the air, And that works just as well as the state government saying to the federal government, you can go stick your round up right in your... well, you know where, right? You're telling me that just standing here, well, hey, look, I can find a good legal argument against it. Yeah, we all could. I could have a million legal arguments. I could stand there handing them out.

52:44But as soon as the goons drive by me, it doesn't matter. But that's how utterly allergic they are to the idea of decentralization. All they can think of is, well, maybe the Supreme Court could have done X, Y or Z. The Supreme Court upheld that awful thing. So what else can you do? What do you just sit there, whoa, we'll vote for the... I mean, this is just ridiculous. I mean, enough's enough. How long can this go on? So it seems like if we want to accomplish something, we've got to be willing to do things that are unconventional. Peaceful, but unconventional. But yet, hallowed by tradition and hallowed by a lineage that includes Thomas Jefferson and other distinguished It's not enough to hold aloft your policy study or your legal brief. As with the Japanese internment, the time comes when you must simply say, no, we're not doing it. We need governors and state legislatures who simply say, we're not doing it anymore. And at a time of economic

53:37turmoil, when the states are in desperate straits as well, it is not unthinkable that we could reach a point at which a governor simply says, you know, starting tomorrow, I'm going to I'm going to go through the state budget line by line, and every unfunded mandate we're paying for is just out. We can't do it anymore. What are you going to do? Send the tanks in? What are you going to do? Okay. I'm over the time. I'm bringing this to a close in just a minute. Ron Paul and I had a really unusual opportunity last month to speak at the dinner on the eve of the Iowa GOP State Convention. I wasn't really expecting that invitation, but I got it, and it's partly because four people on the central committee of the party, and I know you say central committee of the party, you think Pollock Bureau or Soviet Union, but no, no, no, but the central committee of the Iowa party are Ron Paul people, they were just elected, and so they said, well,

54:33these are our dinner speakers. So I went and I try to be courteous, I'm not just going to get up there and give a belligerent Speech and Accomplish Nothing, but nevertheless by the end of the speech I was very forthrightly calling for exactly this and we sold out all the copies of Nullification and I got one of the most enthusiastic cheering standing ovations I've ever received. And these party people are very middle of the road, moderate, don't rock the boat, be very conventional. So it shocked me that I could give a speech like that and get that type of response. It reminded me of the Michael Bolden speech, that when people hear this, they think, well, makes sense to me. Obviously everything else has failed, and Thomas Jefferson was in fact not an idiot, so it is worth trying. Now we've, all this time that the federal government just gets bigger and bigger and bigger, you know, we've had our conferences, we've done all these, and I love conferences, we need this, we have to educate the public. But if

55:30that's our only strategy, well, you know, maybe we could at least try this too and see if we have success with it. Again, it needs to be said that it's over, we're not doing it anymore. There are a lot of counter-arguments you can make against nullification. I understand I haven't addressed them all today. I try to address as many of them as I can in the book. But I am convinced that at the very least there is great promise for this approach. And finally, it is my opinion that we have to start doing it yesterday. Thank you very much.