The Power of Nullification
Kirkpatrick Sale review of Most Likely to Secede: What the Vermont Independence Movement Can Teach Us about Reclaiming Community and Creating a Human-Scale Vision for the 21st Century. Edited by Ron Miller and Rob Williams. Chelsea Greeen. 272 pp. $19.95 paper.
I presume to review this book, even though I am a contributor to it, because it is a fine representation of an increasing tendency across this land of resistance to a federal government grown inept, corrupt, overreaching, overlarge, and overintrusive.
That tendency may be labeled, for convenience: nullification.
It doesn’t matter that the word does not appear in this volume, for its spirit does. The volume is called Most Likely to Secede, and it grows out of a secession movement in Vermont that has been active, off and on, for a decade now, but I don’t think secession really is in the immediate future. Instead it is its subtitle (see above) that comes closest to what it’s really about—state independence. It is a collection of essays from a magazine called Vermont Commons that started publishing in 2005, and they deal with every aspect of what it takes for a state to take unto itself all the processes that have been ceded to (or taken by) the federal government over the years: money, business regulation, energy, health, education, democracy, food regulation, information, the commons, and social policies such as abortion and marriage.
Obviously every attempt to increase or establish independence on the state level will eventually run up against laws and regulations on the Federal level. Take food, for example. One essay here points out that Vermont would not be able to have food produced “locally and regionally… until we openly name and then dismantle the tyranny of our corporate-industrial food system—which is supported by our government.” It goes on to look at the Federal regulations that have grown and grown in the 20th century, which “did achieve a certain level of food safety” but at the cost of “creating a system where small abattoirs and locally available meat are scarce because of the capital investment required to comply with all of the safety standards.” So, too, with milk, which the government has long required to be pasteurized and produced and bottled in expensive settings and with expensive processes that make it very hard for a small farmer to comply.
So if the food movement in Vermont—which has done a lot in recent years to promote local farming and marketing—is ever to set up a truly independent and truly local agricultural system it will have to try to push back government regulations and practices—that is, nullification.
But that’s not such a strange and outlandish thing–Vermont, like eight other states, has nullified the Federal Defense of Marriage Act and authorized same-sex marriage, as recently as 2009. I don’t know the full legislative history of that process, but I’m willing to bet that neither the word nor the concept of nullification played any significant part in it, though that is plainly what was going on.
Or take education. Another essay here lays out all the ways in which Vermont could have schools that developed independent thinking, regardless of grades and testing, and gives examples of how it is being done in a few places in the state. But it is hard to expand these models when the state is obligated, by state and national laws, to have standardized education. “One vital goal of Vermont independence,” writes Ron Miller, a founder of the “holistic education” movement, “is an educational culture that respects and encourages learning on a human scale, that supports caring and loving communities of learning.” But it runs up against “authoritarian educational policy” and Federal “No Child Left Behind” and “Race to the Top” requirements. “National educational policy is one more reason why we need to challenge the burgeoning power of the American empire,” he writes. “We ought to decline the Federal government’s inducements to participate in any ‘race to the top.’”
But declining that means more than a polite “no thank you.” It needs a deliberate campaign to nullify Federal laws, as more and more states are doing nowadays. That takes courage, but that’s what a surprising number of state legislatures are now displaying.
Nullification acts have been introduced in state legislatures all across the country, particularly in the last few months; no fewer than 10 states took up proposals in the last week of February. According to one estimate at Tenth Amendment Center, which tracks such things, there are more than 70 proposed bills to nullify Federal laws and practices now in state legislatures, sometimes consciously labeled nullification, sometimes not.
For example, 12 states have introduced proposals for state marijuana laws in defiance of Federal regulations under the Controlled Substances Act of 1970, joining the15 states which have already passed various provisions, including most recently Washington and Colorado. (Interestingly, they are not confined to blue or red states, but stretch across the land: Alaska, Washington, California, Nevada, Arizona, New Mexico, Montana, Michigan, Arkansas, Vermont, Rhode Island, and Maine.)
Laws against the National Defense Authorization Act of 2011, which allows the President indefinitely to detain anyone, citizen or not, whom he suspects of terrorist ties, have been introduced in almost half the states, again from coast to coast, and passed in Arizona, Utah, Maine, and most recently Virginia—the state which first used nullification, in 1798, against the Alien and Sedition Acts, famously defended by James Madison.
Additional state nullification acts have been introduced this year over threatened gun control acts (called Second Amendment Preservation bills) in 25 states, over Obamacare in 6 states, passed in North Dakota (and an additional 26 have refused to set up state “exchanges” under it), and over drone-invaded privacy in 14 states, passed in Virginia. That’s in addition to the 15 states that have refused to comply with the Real ID Act of 2005 and the 10 others where resistance has passed both houses of the legislature, a refusal so complete that the law, which was supposed to go into effect in 2008 now remains dormant without any sign of the Feds pressing to effect it. And, just to make this complete, the numerous states that have proposed laws for one or more of these causes: gold and silver as legal tender, Tenth Amendment recognition, sheriff primacy (over Federal lawmen), National Guard protection, and the three freedoms (from Federal regulation of hemp, food, and the environment).
All in all, convincing evidence, generally ignored by the media, mainstream and rivulet, that there is widespread resistance to the Federal government, sufficient to actually get laws introduced and passed by states finally exercising Tenth Amendment rights that have long been dormant.
One essayist in this volume, writer Roland Jacobson, effectively sums up the case for Vermont independence and the reason it has to come through directly confronting the national government.
“If we are to cultivate our own traditions—to let thrive those things that make Vermont unique—we need to detach from the national system. So long as decisions about our schools, forests, and water are being made by senators from South Carolina, presidents from Texas, and judges from Chicago, Vermont’s best interests are not going to be kept in mind….
“There’s no question that the things that make Vermont Vermont are under increasing pressure from a variety of external sources. The question is what to do about it. Does Vermont make more sense, does it become more itself somehow by going its own way? A simple test helps answer this. If Vermont had been an independent republic all along, would you now vote for it to join the United States? Of course not. It would be unthinkable.”
So there you have it. Unassaible logic. A state that wants to do things differently from the dictates of the Federal government has to start by nullifying the laws it does not want to live under—and eventually it will have to “become more itself” by “going its own way.” That’s called secession—and, who knows? On the basis of the book, Vermont really might be most likely to secede.
Kirkpatrick Sale is the author of a dozen books, most recently Emancipation Hell: The Tragedy Wrought by Lincoln’s Emancipation Proclamation 150 Years Ago, and director of the Middlebury Institute. This review first appeared in The American Conservative, May 2013.