Last week Human Events published an article entitled “Secessionists and Nullifiers Won’t Succeed” by Jarrett Stepman. In the article the self-important Mr. Stepman boldly announced that both secession and nullification are unconstitutional, but failed to provide grounds for his assertion other than pointing to the example of the nullification crisis involving South Carolina in the 1830s in a qualitative sense as if the mere mention of the incident is proof enough. In the case of secessions in 1860, there was plenty of scholarly documentation generated on the topic during the period from both perspectives and he fails to cite even one primary source to back up his claim.
His reply to Dr. Thomas E. Woods’ rebuttal (which is packed with enough documentation that I don’t feel the need to provide it here) is even more bizarre as he exclaims that the Supreme Court has the final say on Constitutional matters. Again, he provides no historical sources of information to back up his claim (it surely is not in the Constitution itself). While it is true that there is a tradition of Judicial Review, what that has to do with either nullification or secession I am unaware.
Judicial Review was asserted by the Supreme Court in Marbury vs. Madison (subsequent to the Virginia and Kentucky Resolutions by 5 years – making it even more a ridiculous assertion) and was accepted as one of many checks against improper exercise of Federal power, but in addition to many others not instead of them. It is not implied as a power of the Judiciary in Article III, and there is also no basis for it to expand Federal power; therefore it can only be a negative check. In addition, it is revocable by legislation. Yes, Congress can determine when its own laws can be reviewed by the Judiciary and when they may not be. Congress can also do things to the Judiciary that would render it irrelevant such as abolishing the Circuit Courts, cutting its budget to nothing and defining uncomfortable quarters among other unimaginable impositions. It is illogical to assume that the framers intended for the only check on the exercise of power by the other two branches of government to be as incredibly weak and dependent on those branches as the Judiciary. I also think that if the Supreme Court had the final say on the bounds of Federal power, the government constituted in such an arrangement would be an oligarchy not a republic. It would render the 9th and 10th Amendment meaningless; not to mention what it would mean for the enumerated powers – and perhaps we can already identify where Mr. Stepman’s line of reasoning has gotten us.
I have already pointed out some rather atrocious decisions by the Supreme Court through its history (here and here). And I think it is worth questioning that if the Supreme Court is wrong, which is has been on several occasions when it mattered most, Dred Scott, Cruikshank and upholding segregation for example (generally things the Federal Government had no authority over in the first place), and we have no reason to assume that it is any more to the wise now: what is the rightful remedy? Should average citizens lie down and accept Federal excrement being piled on them? Should we beg and plead for the politicians who are responsible for it in the first place to take it back?
Mr. Stepman doesn’t say, although he claims to support the Health Freedom Act, which is, as I am very happy to inform him, a form of nullification. And of course both James Madison and Thomas Jefferson had the answer to keeping the Federal Government laced up straightly within the enumerated powers; but Mr. Stepman brushes it to the side while disparaging Jefferson as a rabid nullifier who was preparing to start another armed revolution (again with no documentation to support his accusation except referring to a comment Jefferson made in a letter to a colleague regarding Shays’ Rebellion saying he expected that there would be a revolution every couple of decades).
While I have no sympathy for the idea of secession or secessionists, I reject completely the notion that the intended framing of the Constitution allowed for an inescapable default to tyranny should all the checks fail to prevent the usurpation of power not delegated to the Federal Government by the Constitution, or that it built in the concept that average citizens and elected State officials needed the Supreme Court to teach them how to read.
The Constitution was written in precise and plain English for a reason – expressly so that average people could understand it. Mr. Stepman claims to be educated, but it seems he is quite unaware that educated men of the period when our Constitution was drafted were educated in both Latin and French not for nostalgic and novel purposes. It is highly suggested for those studying law and those pursuing the study of history to learn these languages so that they understand the origins of words, and when composing a document they may chose the most appropriate words among those that have similar meaning, avoiding lack of clarity as much as possible. The men who wrote the collection of words known as our Constitution were not idiots, and they chose their words carefully as to leave as little ambiguity as possible. The document is not one of shades of gray that needs a lot of sorting out. It means what it says; doesn’t mean what it doesn’t say; and it doesn’t agree with Mr. Stepman.