Another Way To Block Health Care Reform: Nullification

October 25th, 2012 · 1 Comment · Uncategorized

By Denise Tessier

Micha Gisser’s columns in the Albuquerque Journal no longer carry the “Rio Grande Foundation fellow” tagline, but the RGF ideology is still there in the University of New Mexico economics professor’s writing, and the Journal is still giving him prominent play. In last week’s “Executive’s Desk” slot (Oct. 15) on A3 of Business Outlook, Gisser was given prominent space to espouse that:

We are in the eye of a gathering economic storm. A Greek tragedy is waiting around the corner.

While it’s arguably hard to dispute that possibility, note Gisser’s solution:

. . . make the Bush tax cuts permanent and slash the corporate income tax rate down to at least 25 percent. To further spur economic growth Republicans should work on reducing uncertainty which has been killing private investment. To that end they must promise to rescind the most obnoxious regulations accumulated during Obama’s presidency.

He added that America should adopt a “new energy policy,” to:

. . .lift the (public lands) ban on drilling natural gas and shale oil. The new technologies, such as deep and horizontal drilling and hydraulic fracturing, will unleash an energy boom of giant dimensions. Also, we should approve the Keystone XL pipeline project which was rejected by Obama earlier this year.

That’s the full extent of this “new” energy policy, in this column anyway.

As we’ve noted before on JournalWatch, the Journal has liberally given RGF and its associates a forum in which to promote trickle-down economics and further reliance on extractive energy policies.  I bring up Gisser’s piece as a tie-in to another possible RGF ideology that came into focus this past month – that of states using the Tenth Amendment and “nullification” as a tool to push back on federal policies, including the Affordable Care Act.

RGF entered this territory by hosting a luncheon featuring speaker Thomas E. Woods, whose most recent of 11 books are “Rollback: Repealing Big Government Before the Coming Fiscal Collapse,” and “Nullification: How to Resist Federal Tyranny in the 21st Century.” The Journal advanced the Oct. 12 talk in Business Outlook, but did not cover it. (RGF’s web site does have a recording of it.)

For those unfamiliar with Woods, he describes himself on his web site as a “pro-freedom historian.” He’s a contributing editor to The American Conservative magazine and a fellow with the Ludwig von Mises Institute in Alabama, a group whose mission, in part, is “opposing government intervention as economically and socially destructive.”

In 2000, the institute was listed (along with the League of the South) as neo-Confederate by the Southern Poverty Law Center, which cited some of the writings of the institute’s CEO, Llewellyn Rockwell.

For a time Woods wrote pieces for The Southern Patriot, which on at least one of his stories lists its mailing address as Alabama, Confederate States of America. That same archived story (among others) identifies him as a founding member of the League of the South.

In one of Wood’s pieces older pieces, “Christendom’s Last Stand,” he wrote that:

. . .the War Between the States, far from a conflict over mere material interests, was for the South a struggle against an atheistic individualism and an unrelenting rationalism in politics and religion, in favor of a Christian understanding of authority, social order and theology itself. The intelligent Left knows this, and even the incurably stupid, like Carol Moseley-Braun, must at least sense it. For all their ignorant blather about slavery and civil rights, what truly enrages most liberals about the Confederate Battle Flag is its message of defiance. They see in it the remnants of a traditional society determined to resist cultural and political homogenization, and refusing to be steamrolled by the forces of progress.

I have been a Northerner for my entire 24 years. But when we reflect on what was really at stake in the “late unpleasantness,” we can join with Alexander Stephens in observing that “the cause of the South is the cause of us all.”

Woods was 24 when he wrote that piece – calling the Civil War “unpleasantness” and quoting Stephens, the vice president of the Confederate States — but in the years since, has distanced himself from the secessionist League of the South, and has explained that he was 21 when he attended the meeting at which the Confederate group was founded, saying his membership has been intermittent since. And, significantly, no mention is made of the League on Woods’ Wikipedia entry.

Yet as recently as 2004, in a post entitled, “The Real Significance of the Civil War”, Woods gave evidence that he hadn’t strayed all that far from his young man’s neo-confederate sympathies. In it, he wrote:

It is true that the modern state could protect individuals from the oppressions of these smaller authorities (i.e., states and other groups). Thus the modern state could end slavery in one fell swoop.

But he cited Donald Livingston, professor of philosophy at Emory University, as pointing out that the modern state:

. . . could also carry out great atrocities, of a kind the world had never before seen.

Woods then added that:

The best Southern thinkers, though of course they could not have known just how strongly vindicated they would be after the atrocities of the twentieth century, understood this principle. Consider the lament of Alexander Stephens, Vice President of the Confederate States of America:

If centralism is ultimately to prevail; if our entire system of free Institutions as established by our common ancestors is to be subverted, and an Empire is to be established in their stead; if that is to be the last scene of the great tragic drama now being enacted: then, be assured, that we of the South will be acquitted, not only in our own consciences, but in the judgment of mankind, of all responsibility for so terrible a catastrophe, and from all guilt of so great a crime against humanity.

Woods’ frequent use of Stephens’ quotes — including this one to vindicate the South and extol the Confederacy’s defense of “free Institutions” — is interesting in that, as a historian, he surely was also aware of Stephens’ famous “Cornerstone Speech,” made at the outbreak of the Civil War. In it, Stephens said:

The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution — African slavery — as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution… Our new Government is founded upon. . ., its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.

This brings us back to the topic of nullification, supposedly based on the Tenth Amendment of the Constitution. The amendment says:

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.

Last year, Idaho legislators used Woods’ works to justify advancing nullification legislation, specifically to nullify the Affordable Health Care Act. Such a bill was passed by the Idaho House but killed by the Idaho Senate, and the state’s deputy AG said nullification could lead to secession. According to, Deputy Attorney General Brian Kane said at the time:

“Nullification theoretically falls apart on itself because you create the buffet of law, meaning state one chooses this law and state two chooses this law,” Kane said.  “You have zero uniformity.”  He also said that if states could nullify federal law, they would have unchecked power, which the framers of the Constitution tried to avoid.

Nullification is an important topic, he reportedly added, as “There’s a legitimate debate here about the scope and size of the federal government and the scope and size of the states.”

Woods is a prominent voice in the Tenth Amendment movement, as evidenced by his role in the movie, “Nullification: The Rightful Remedy – The States Can Nullify Obamacare,” which posits that states “can and must refuse to enforce unconstitutional federal laws.”

A skeptical take on nullification — a YouTube clip from a 2011 Rachel Maddow segment on MSNBC — tellingly lays the groundwork with a primer on the battle at Fort Sumter — the start of the Civil War. (Princeton African-American Studies Professor Melissa Harris-Perry notes on that segment that Confederate/Tenth Amendment /nullification interest seems to have picked up since Obama was elected to the Oval office.)

And while many of us are familiar with Dr. Martin Luther King Jr.’s “I Have a Dream” speech, few of us likely noticed that nullification was included in it, on King’s mind as an abhorrence to be remedied. From his speech:

I have a dream that one day, down in Alabama – with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” – one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

On further examination, it would seem that Woods’ use of the Tenth Amendment to make the case for nullification and the supreme sovereignty of the individual states is rooted not in the U.S. Constitution, but rather in a desire to revive its precursor – the Articles of Confederation – which had given states powers in anything not expressly given to the federal government. As pointed out in an Atlantic Monthly article last year, Tenth Amendment advocates – or “Tenthers” – like to add “expressly” or “explicitly” to the amendment, as Sen. James DeMint did in 2010 when he said:

“The Tenth Amendment says powers not explicitly given to the federal government in the Constitution go to the states or to the people.”

The word explicitly is not in the Tenth Amendment, nor is “expressly”, and the Atlantic article points out that James Madison, in proposing the Tenth Amendment, fought to keep “expressly” out of it.

Where does this leave us today?

Granted, anxiety about the excesses of federal government power is not limited to a conservative ideology or to those in favor of nullification, as the deputy AG of Idaho pointed out.

Moderates and those on the left are as likely as conservatives on the libertarian side to view with alarm a host of federal intrusions and recent developments – from increased surveillance of citizens to federal raids on medical marijuana clinics in California. And those on the left might find themselves in agreement with some of Woods’ views.

But some of us would argue it would be better if the varied ideological groups would engage in civil discourse long enough to work to change federal policies on which there appears to be consensus for change, doing this in a way short of invoking the Tenth Amendment, invoking nullification or reviving doctrines that tore the nation apart 150 years ago.

Again, it’s interesting that the Rio Grande Foundation — upon whom the Journal relies with some frequency for comment in news stories and for policy advice on opinion pages — would bring Woods to Albuquerque. It is of some comfort, however, that the only time nullification appears in the Journal archives as a topic is in a column by Winthrop Quigley from 2009. Its title: “Simply Put, Nullification Is a Bad Idea .”

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One Comment so far ↓

  • Arthur Alpert

    Wow! What an extraordinary post! How strange these men and how anti-democratic (and hateful) their doctrines! You’ve performed quite a service, Denise, in revealing their ties to the RGF and the Journal.

    Arthur Alpert

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