Cloward, Pivens and Nullification

The Cloward and Pivens strategy is to affect change by overwhelming existing systems. Specifically, Cloward and Pivens hoped to bring about a socialist system by encouraging people to swamp the welfare system.

Swamping the system is a favored strategy of the left. In recent history, the left encouraged widespread violation of copyright laws to swamp the system of property rights. They actively encouraged illegal immigration to swamp the legal system. The left hosts topless protests to overturn decency laws and actively encouraged the use of marijuana to swamp narcotic laws.

This method of using civil unrest to affect laws is not new. After the Civil War, the Left did not like Republican Carpetbaggers and reconstruction. They effectively resisted post war reconstruction, then imposed segregation and Jim Crow laws.

If the Left doesn't like a law or any aspect of a law, they confront the challenge by encouraging the masses to break the law.

The Right does not like Obamacare and has been toying with an idea called nullification.

Nullification is a bit more deliberate than Cloward and Pivens. The idea is that if a law is deemed unconstitutional by a state, then states have a right to declare the law null and void.

Despite the inclusion of a deliberative step, nullification creates a system where laws sit on the books, but are not enforced, with the people mired in conflict.

The most infamous use of nullification came when Southern Democrats tried to nullify Civil Rights legislation. The use of nullification by the South led Martin Luther King to include in his "I Have a Dream Speech" the sentence:

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 […];

Nullification is a step above mass unrest. However, Republicans should aim a step higher. To restore local control, states need powers that go beyond civil disobedience. They need a direct ability to wipe unconstitutional laws off the books.

I fear that the current efforts to nullify Obamacare are doomed to failure and will simply lead to greater civil unrest.

Lets face it. The right is not as good at sustaining mass movements. The left controls the media and schools, and the effort to nullify Obamacare will be framed in a negative light.

Rather than trying to use a mass movement to void Obamacare, Republicans would do well to aim higher and create a mechanism that allows states legislatures to directly repeal Unconstitutional Laws.

I suggest that States focus their anger on Obamacare to use modern communication technologies to create a Network of Legislatures that can directly set constraints and repeal unconstitutional laws.

The founders of this nation did not have modern communication technology. They attempted to create a network of legislatures by having the Senate elected by the state legislatures. This system was overturned by the 17th amendment.

The Network of Legs would help correct the imbalance of power created by the 17th amendment.

I happen to be a technophile. The way I would go about creating a network of legislatures would be to have the states call for an online Constitutional Convention. The convention would essentially be a large online conference call (aka GoToMeeting). The legislatures would appoint delegates who login to the convention from the state capitals.

Once established, the states could use the network to set constraints, repeal unfunded mandates or call out unconstitutional law. In other words, the network of legs would allow communication between the states and federal government in a way that gives states the ability to protect their local powers.

Whereas nullification creates conflict and civil disobedience, the network of legs would create a deliberative process that allowed states to affirmatively assert their powers. Creating a network of legislatures would have a longer and more profound effect on our society than the nullification of a single bill.

Nullification is inherently divisive. The antidote to division is deliberation. The Network of Legs would give the states the ability to affirmatively assert local control.

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Nullification is Reactionary

The book Nullification by Tom Woods is a great read (buy at Overstock.com).

Thomas Jefferson advocated that states react to unconstitutional laws by declaring them null and refusing to enforce the law. The logic is that laws cannot contradict the Constitution; therefore, an unconstitutional law is not a law and is properly ignored.

By its nature, nullification is a reactionary process. The states react to an unconstitutional law by refusing to enforce it.

A reactionary effort like nullification may have worked in the early days of this nation when people still shared the visions of the US Founders.

We live in a day when people have lost the classical liberal vision of the US Founders. It is rare for students to even encounter the thoughts of our nation's founders in their public school education.

As mentioned in the last post, Conservatives can no longer depend on reaction. To preserve the American heritage, Conservatives must find ways to restore the founder's vision.

It is likely that the call to nullify Obamacare will simply create a lot of noise that will backfire on the tea party.

I believe the thinking behind nullification is correct. To preserve the balance of power between the Federal and States government, the states simply must have a way to reject bad legislation.

Rather than reacting, states should have a proactive means to assert their powers.

I've suggested that states use modern communication technologies to create a Network of Legislatures that can set constraints on Congress and directly nullify laws that tread on state's powers.

To have a long lasting effect on American politics, the tea party needs to transition from a reactionary to a visionary movement, the vision being the revolutionary vision of the US Founders that created a free society with a limited, multidimensional governance.

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A Network of Legislatures

In response to a tweet favoring limited government, I was asked the question: "and just what the limits should be"?

In response, I said a better question is who should determine the limits?

Recent history has shown that the Federal government is incapable of restraining itself. Each administration since Hoover has grabbed more and more power and created greater centralization of the economy and deeper systemic risks in the market.

Thomas Woods advocates Nullification. The argument is that any unconstitutional law is not a proper law and can be nullified by the individual states.

The problem is that we have strayed so far from the enumerated powers of the Constitution that we would fall into chaos if legislatures were to suddenly start cherry picking which laws applied to their states.

Despite the chaos that would ensue, we would still find our nation burdened with reams of unconstitutional laws burdening society.

To effectively place limits, we need something more proactive than nullification.

My proposal starts by looking at the original design of the Constitution. In this design the Senate was elected directly by the State Legislature.

Since the Senate was directly responsible to the states, it behaved a bit more like a network of legislatures.

Of course Senatorial elections within the state legislatures tended to be quite corrupt. The Seventeenth Amendment had Senators directly elected by the people. Direct elections broke the only effective control states had over the Federal Government.

I do not favor repealing the 17th amendment.

However, with modern communication technology, we are now able to do something the founders could not.

Rather than creating a Senate that worked like a network of legislatures, we can use the Internet to create a real time, fully functional network of legislatures.

If I had influence, I would have the States call a Constitutional Convention. This Convention would write an amendment that created a network of legislature that could set constraints or reject any law that falls outside the enumerate powers of the Constitution.

Note the network of legislatures would not be writing Federal Law. It simply has the ability to set constraints and reject laws.

The Founders of the United States thought that the States would play an active role in setting constraints on the Feds. The Seventeenth Amendment removed their most effective tool in accomplishing this goal.

Creating a network of legislatures would re-establish State legislatures as an entity that could counter abuses of Federal power.

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Constitutional Context

To understand a document like the Constitution, one needs to read the document in its context. Nullified, by Thomas E. Woods is a well researched document showing that the Constitution of the United States was created with a vision of strong States and a limited National Government.

The Constitution gave enumerated powers to provide national defense and to help simplify interstate commerce, etc..

The debates surrounding ratification of the Constitutions show quite clearly that the framers of Constitution were creating a multi-dimensional system of governance with strong state governments and a limited Federal government.

Today, we find ourselves facing the exact opposite of what the Founders intended with an unbounded Federal government with a history of failing at its primary charges while mandating state laws.

So, although the founders intended to create a distributed form of governance, they failed to create a mechanism to preserve a distributed form of governance.

Thomas Jefferson thought that the way to preserve the balance of state and federal power was through the process of nullification. The central idea behind nullification is that an unconstitutional law (such as No Child Left Behind) is not really a law and can be rightfully ignored by the states.

Mr. Woods book is a great read that presents the context of the Constitution and supports the concept of nullification.

Whether or not we should revive the principle of nullification is a different debate. During the progressive era, we have so thoroughly trounced on our Constitution that the majority of Federal activities fall outside the enumerated powers of the Constitution.

My primary worry about nullification is that states will only challenge those laws with which they disagree. As different states disagree with different laws, reviving the process of nullification is likely to result in increased hostilities between the states and will not restore Constitutional balance.

To restore the balance between states and federal government would require a more formal mechanism of dispute than the game of simply not enforcing laws.

Regardless of one's feelings on nullification, Mr. Woods' recent book is a great read in that it provides insight into the context of our Founders thoughts on the balance of powers (buy at Overstock.com)

States Don't Have Rights, States Have Powers

The following is an open letter to Thomas E. Woods, author of Nullification (buy at Overstock.com)

Dear Mr. Woods,

I enjoyed watching a zombie pick your brains during your YouTube interview.

I agree with your assessment that we are being played for suckers. I hope that distinguished scholars, such as yourself, will work diligently to counter the manipulation of our language by the left.

A month ago I was trying to argue the cause of States Rights and was immediately labeled a "neoconfederate-racist."

While posting the wording of the Tenth Amendment the umpteenth time, it dawned on me: States don't have "rights" they have powers.

I am now curious about the origin and usage of the term "States Rights."

As you are more learned and have access to better resources than me, I would be honored if you took time out of your busy schedule to address this very important distinction.

My research of the Founders indicates that they created a multidimensional political structure where the people had rights. The States and Federal Governments had limited powers.

If this is true, then the slogan "States Rights" is antithetical to the Constitution. Advocates of limited government run the risk of undermining their cause if they use the loaded term "States Rights."

If what I believe is true, and the slogan "States Rights" is paradoxical creation of the enemies of limited government, then proponents of nullification need to strike the term from their lexicon and actively challenge its use by emphasizing "States don't have rights, only people have rights. The Constitution grants limited power to the different levels of government."