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Thomas E. Woods, Jr. And the Right to Oppress

Originally posted at Talk to Action.

In the last several posts we have examined an element of the Catholic Right  comprised of neo-Confederate apologists who openly advocate both the state nullification of federal court decisions and statutes as well as secession.  The name that most commonly comes up when conservative Catholics discuss these things is Thomas E. Woods, Jr., who may be the leading modern confederate, intending to win what Jefferson Davis lost.  But a major difference today is that certain Catholic Right players would use the neo-confederate disruption of popular government to impose theocracy-even at the expense of national unity.

Thomas Woods is a well-educated man. He has earned a B.A. in History from Harvard as well as a Ph.D. in the same subject from Columbia from which he also holds a Masters in Philosophy. But Woods’ elite education is not reflected in his writing which is devoted to the agenda of nullification and secession. To that end, he serves as not only as a senior fellow to the über-libertarian Ludwig von Mises Institute, but also as an associate scholar with Abbeville Institute, an institution that promotes a revisionist view of the Confederacy.

Wood is no ordinary academic not only because of his agenda but in his method of advancing his views, which often includes tactical omissions, mischaracterizations and even outright mendacity.  He is often quick to resort to hyperbole (describing those who warn of the dangers of secession as engaging in “hysterics” while describing them as “bizarre and creepy”) and name-calling (describing those who believe that the Civil War settled the issues of nullification and secession as having a “moral compass deeply deformed by government propaganda”).

He is prone to misleading statements. For example, in defending his call for the nullification of federal court decisions and legislation, he argues:

Nullification was never used on behalf of slavery.  As I show in Nullification, it was used against slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate.  Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate).  In Ableman v. Booth  (1859), the Supreme Court scolded it for doing so.  In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act.  Who’s defending slavery here?

This is a straw-man argument that completely sidesteps the main issue. Woods may rhetorically ask, “Who’s defending slavery here?” The obvious reply is, “Who here is approves of nullification under any circumstance?” The Wisconsin Supreme Court was clearly on the moral high ground in voicing its disapproval of the Fugitive Slave Act. But with that said, the proper remedy was still the Thirteenth Amendment. That is immutable. More importantly, Wisconsin ceded to the decision of the Supreme Court, thus honoring the Supremacy Clause.

Likewise, when discussing nullification and the Founders, Woods plays fast and loose with the facts of history. For example, he recently wrote:

“Nullification” dates back to 1798, when James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions, respectively.  There we read that the states, which created the federal government in the first place, by the very logic of what they had done must possess some kind of defense mechanism should their creation break free of the restraints they had imposed on it.  Jefferson himself introduced the word “nullification” into the American political lexicon, by which he meant the indispensable power of a state to refuse to allow an unconstitutional federal law to be enforced within its borders.

Woods’ omissions are all-too-convenient.  First, in response to the Virginia and Kentucky Resolutions (declaring the Alien and Sedition Acts unconstitutional) nine other states expressed either disapproval or outright rejection of the Resolutions. Secondly, Jefferson was always an anti-Federalist. Beyond that, Madison would conclude that determining unconstitutionality was to be decided by the federal courts. For Madison, nullification was a means of registering protest, not acting upon it.

Much like his fellow Catholic neo-Confederate, Thomas DiLorenzo, he is obsessed with tearing down President Lincoln’s legacy.  He cites Lincoln’s early views on the issue of slavery — initially supporting the resettlement of former slaves — in order to paint him as a hypocrite. Yet no serious student of Lincoln denies his earlier views on race relations. But most serious pro-Lincoln also understand that his views evolved over time to a higher and better place.  Still, Woods, DiLorenzo and their ilk point to early stations in Lincoln’s life journey as a final judgment.  In fact, Lincoln’s journey was marked by an open mind, unafraid of where the application of core beliefs would lead him.

Why is a discussion of Lincoln’s legacy pertinent to confronting the Religious Right?  Simply because the Sixteenth President’s stand against nullification and secession epitomizes the defeat of those twin concepts of national disunity and selfishness.  Destroy Lincoln’s legacy, and the door is thrown wide open to the view that an individual state is in itself a mini-sovereign, free to adopt one religious view as that state’s established faith. This in turn, opens the door to criminalizing women’s’ reproductive rights, stem cell research, and marriage equality.

Does this sound far-fetched? As it bears repeating over and over again, not to the likes of Woods ally and Opus Dei firebrand Rev. C. John McCloskey, who idealizes a future marked by secession and civil war:

The tens of thousands of martyrs and confessors for the Faith in North America were indeed the “seed of the Church” as they were in pre-Edict of Milan Christianity. The final short and relatively bloodless conflict produced our Regional States of North America. The outcome was by no means an ideal solution but it does allow Christians to live in states that recognize the natural law and divine Revelation, the right of free practice of religion, and laws on marriage, family, and life that reflect the primacy of our Faith. italics added

Is such an outcome an exaggerated fear? Hardly. Nullification is spreading like an out of control fire through the national edifice. A bill designed to nullify the Affordable Care Act is on the South Carolina Senate’s current agenda. Earlier this year Mississippi Tea Party legislators unsuccessfully attempted to set up a nullification panel to review which federal laws to ignore (in typical Woods fashion, he described those who disapproved as “thought controllers”). And in North Carolina a group of Republican legislators recently attempted to nullify The Establishment Clause by declaring Christianity the Tar Heel State’s official religion. Woods’ Brigade is on the march.

Historian Barbara Fields warned in 1990, that the Civil War can still be lost:

I think what we need to remember, most of all, is that the Civil War is not over until, we today, have done our part in fighting as well as understanding what happened when the Civil War generation fought it.

William Faulkner said once that “history is not was, it’s is.” And what we need to remember about the Civil War it is that the Civil War is in the present as well as in the past. The generation that fought the war, of the generation that argued over the definition of the war, the generation that had to pay the price in blood and had to pay the price in blasted hopes and a lost future also established a standard that will not mean anything until we can finish the work.

You can say there’s no such thing as slavery anymore, we are all citizens; but if we are all citizens then we have a task to do, to make sure that too that is not a joke; that if some citizens live in houses and others live on the street, the Civil War is still going on; it’s still to be fought; and regrettably can still be lost.

Let us imagine for a moment that Woods and his ilk  can succeed where other states’ rights advocates have failed.  One of the obvious consequences would be that tyranny would not be abolished but locally established in the form of laissez-faire economics and theocracy. Indeed, the only “freedom” that would be expanded would be the freedom to oppress – the concept that is at the very heart of many Catholic neo-Confederates and economic libertarians alike. This underlying notion of the right to oppress others is the common thread that runs through both slavery and contemporary theocratic visions.

Woods is correct on one point: Nobody is talking about slavery. But with that said, some of us are still talking about the right to oppress others and one of those doing so is Woods.

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Refuting Nullification, Part Two

Originally posted at Talk to Action.

In this series we have been discussing the emerging influence of Thomas J. Woods and other Catholic Right neo-Confederates, who are advocating that states nullify federal statutes and court rulings with which they disagree. Some are calling for outright secession.  The next installment explained why nullification matters and how it can lead to localized tyranny and theocracy. Then we discussed the historical argument against nullification and by extension, secession.

Now we are taking the obvious next step:  The Constitutional arguments against nullification.

At the forefront of the Catholic Right’s nullification/secessionist movement is Thomas J. Woods.  His writings and speeches are frequently cited by a budding alliance of Catholic social conservatives and secessionists that extends to the likes of Opus Dei evangelist C. John McCloskey and politico Alan Keyes.  They claim that their ideas are constitutionally viable — but they are not, and here is why.

Woods justifies nullification via “the compact theory” of government – that the United States of America government was formed by a compact agreed upon by all the states, whereby making the federal government a creation of the states. In Woods’ view this give individual states the power to “nullify” laws or federal court rulings they see as unconstitutional.

But as we explored in the very last post, it is a theory with little or no basis in historical fact. If states did indeed precede the federal government, then what of states such as Alaska, California, Hawaii and Louisiana that were carved out of federal procurements of war seizure or purchase by treaty?  Both of these powers are specifically reserved to the federal government in the Constitution. Beyond that, it is a theory that ignores our nation’s founding as a people.

The Foundational Argument

Inspired by Daniel Webster, Abraham Lincoln understood the inherent weakness of the compact theory upon which Woods rests his theory. Lincoln also understood that there is no legal justification for either nullification or secession. Consider this passage from his First Inaugural Address:

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it–break it, so to speak–but does it not require all to lawfully rescind it?

Putting aside the fact that even among the original framers there was a divergence of opinion over its intent, Woods and other advocates of nullification punt on the obvious conclusion; that if it were the intent of the Founders to allow for secession of a given state of mechanism, would have been inserted into the constitution. Woods’ weak response is “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.” Directly preceding this comment, he argues, “This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.”

Woods seems to be alluding to the U.S. Supreme Court ruling for Griswold v. Connecticut, the 1965 case that overturned a state law banning the sale of birth control on the grounds that it violated the “right to marital privacy” (It is not surprising that Woods, as a traditionalist Catholic, Woods would derisively hone in on this decision). In his dissent, Justice Hugo Black then found no general “right of privacy.”  Nevertheless, majorities in Griswold  (and later in Roe v. Wade) did find support for the right to privacy in the Fifth, Ninth and Fourteenth Amendments, and this is now a matter of settled law.  However, no one has been able to reasonably infer a right to either nullification or secession in the Constitution.

While Article IV of the Constitution provides for the admission of new states, there is no provision for secession (Lincoln touched upon this in his First Inaugural Address:  “Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.”).

We can say the same about the nullification of federal legislation. Lincoln knew that neither secession nor nullification were not to be confused with the Right of Revolution as stated in the Declaration of Independence (“Whenever any form of government becomes destructive of these ends [life, liberty, and the pursuit of happiness], the people have a right to alter or abolish it, and to institute new government as to them shall seem most likely to affect their safety and happiness”).

More importantly, the concept of any state nullifying any federal law without the proper court challenge was contemplated and rejected by the Framers in Article IV of the Constitution. More broadly in the Constitution’s “Supremacy Clause” is unambiguous. The Constitution and laws made by the Congress are “the supreme law of the land.”  And it doesn’t give or suggest any override authority to the state governors and legislatures:  

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

The Rub

Indeed, the radical ambiguity of Woods and his cohorts about how one determines what is and is not Constitutional — is a recipe for arbitrary and capricious behavior.  We have the Supreme Court to make those calls. And while Article III does not specifically assign that power was, as evidenced by Alexander Hamilton, one clearly intended by its proponents.

Simply put, the Woods’ formulation has the potential for radical breaks with the supreme law of the land, for example on matters of matters of birth control, reproductive rights, and even the establishment of an official state religion. In sum, the denial of some of the most basic rights guaranteed to individuals by the U.S. Constitution opens the door not to a more perfect union, but to a confederation of little theocracies.

Indeed, James Madison, writing in Federalist No. 44 observed regarding the supremacy clause of the Constitution:  “Without the substance of this power, the whole Constitution would be a dead letter.” He then presciently warned:  

“The question, therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.”

That is indeed still the question.

Refuting Nullification, Part One

Originally posted at Talk to Action.

The emerging influence of Thomas J. Woods and other neo-Confederate ideologues within the Catholic Right was the focus of the first post in this series. They are advocating the failed concepts of secession and the nullification of federal statutes and court rulings. The second post in the series explored why nullification matters and how it can lead to localized tyranny and theocracy. To complete the quartet, we will discuss first how proponent’s claims for historical justification are simply wrong, and then detail the Constitutional argument against nullification.

Traditionalist Catholics such as Thomas Woods and Opus Dei firebrand Fr. C. John McCloskey, who are openly discussing nullification and secession — are finding common cause in a growing movement. The libertarian Catholic Acton Institute has looked upon Woods’ gospel of nullification with approval, even (incorrectly) equating it with the Catholic principle of subsidiarity (human affairs are best handled at the lowest possible level). More and more the concept is being discussed as a viable political option by socially conservative and traditionalist Catholics.

As I previously reported, among the Catholic Rightists beating the drum for nullification are Pat Buchanan, Thomas DiLorenzo, Thomas Fleming and Thomas E. Woods, Jr.  All four advocate states’ rights, a seething resentment of Abraham Lincoln, and as Rachel Tabachnick recently highlighted, Woods is a key member of the pro-secession League of the South, Traditional Catholicism (save possibly DiLorenzo) and Austrian-school, libertarian economics.

Known as “tenthers” they argue that individual states, citing the Tenth Amendment to the federal Constitution, have the right to nullify federal legislation or court rulings of which they disapprove — on quite a range of subjects. Some have recently argued that states should and have the right to block federal health care reform; refuse to enforce federal firearms regulation and some cases, as a justification for imposing Christianity as an official state religion. Gov. Sam Brownback of Kansas – an Opus Dei convert to Catholicism — has already signed several nullification bills into law, inviting a federal court challenge. U.S. Attorney General Eric Holder has written to Brownback to inform him that his legislation is unconstitutional. Indeed, nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.

As dubious as nullification may sound to liberals, let’s note that even the conservative Heritage Foundation calls it “Unlawful and Unconstitutional.” The libertarian Cato Institute is only slightly less absolute, citing a limited use for nullification, but cautions: “Can a state impede federal authorities from enforcing their own law if the state deems the law to be unconstitutional. The answer is “No,” although more radical nullification proponents would disagree.”

States Did Not Precede the Union

The claim by Woods and other latter-day John Calhouns that nullification is consistent with the original intent of the Constitution is rooted in bad history. They assert that the states constitute a higher authority than any of the branches of the federal government because the individual states existed before the national government was created. However, a fair reading of American history debunks that myth – and by extension, the foundation of the entire nullification argument.

When the notion of secession was at its height, Abraham Lincoln argued for a sturdy form of federalism. “Plainly,” Lincoln declared, “the central idea of secession is the essence of anarchy.” Lincoln was soon proved to be correct. In the closing days of the Civil War, Alabama and Georgia were so protective of their notion of state sovereignty that they threatened to secede from the Confederacy. Even Jefferson Davis, the president of the Confederacy admitted, his movement “died of a theory” — and that theory was states rights.

The fallacy that “the states preceded the federal government” argument is exposed by simply considering the history of the thirteen colonies. At the time of the revolution each were Crown colonies, which is to say that the King of England appointed their governors. Royal charter founded indeed most of them. New York (then including whole swaths of territory that would become New Jersey) was wrestled from the Dutch by the British, and added to her American holdings. Little more than a century later, the British military might engaged in a war with France and her Native American allies to protect the colonies (in what we now call the French and Indian War.) The British victory enlarged the American colonies. Massachusetts gained control of what is now Maine while Virginia expanded into what is now West Virginia.

The political loyalty of what was to become our first thirteen states originally was to the King and Parliament, a binding central government. The common thread that ran through the complaints of each American colony in April 1775 was that they were being taxed and bullied by that central entity without any true representation in its decision-making. And when they initially revolted they did not do so advocating for their rights as Rhode Islanders or New Yorkers or as Georgians but as their rights as British subjects. They were simply demanding a say in the Parliament that was legislating without them being able to debate or vote on any law that adversely affected their general welfare.

When the Continental Army drove the British from Boston in March 1776, units from Maryland, Pennsylvania and Virginia while being commanded by a Virginian, George Washington, joined the Massachusetts Militia. They answered to a Continental Congress, not individual state governments. More importantly, when independence was declared it was done with purpose of severing their common governing relationship with London and replacing it with our own central authority. This was the cause that transformed into the creation of a nation.

The argument that the states precede the federal government truly falls apart with the addition of the post-Revolution states. The states that were created out of the Louisiana Purchase were made possible with the common funds from the United States Treasury. Individual states were also carved out from United States’ Territories. The same is true of Alaska. In the case of what are now our Southwestern states, those descended from territories seized from Mexico by a nationally organized war (a conflict opposed by then-Congressman Lincoln). Many of the upper western states were created from territories similarly seized from Native tribes such as the Sioux and Cheyenne.

Finally, it is worth noting that whatever our political outlooks, few of us see the founding of the Jamestown and Plymouth colonies as the origin of individual sections or states. Rather, we see them as the beginning of our identity, warts and all, as an American People (the longer history of Native Americans, notwithstanding). We celebrate Thanksgiving Day, for example, as a national tradition, not one unique to Massachusetts. Likewise, we celebrate July 4th as the beginning of the American Revolution, not the secession of the individual original thirteen colonies from the British Empire. Rather, we all revolted in unison and reliance upon each other to create a new nation.

Thomas Woods and his ilk are simply wrong about American history; the states did not precede either a central government or our common identity as a people.