In a new book that celebrates the conservative insurgency in the United States, best-selling historian Thomas E. Woods champions "the return of a forbidden idea" to end the apparently inexorable expansion of the welfare state: Thomas Jefferson's long-dormant doctrine of nullification.
Expounded by Jefferson in 1798, the doctrine asserts that state legislatures, on their own initiative, have the authority to declare federal laws void and unconstitutional. This authority is inherent in the Constitution, Jefferson asserted, because of the self-evident fact that any federal law that violates the Constitution is no law at all - and can be legally ignored. Further, it affirms the belief that the federal government - and the Supreme Court, too, since it's a federal institution - cannot be allowed to hold a monopoly on constitutional interpretation.
This contemporary assertion of what some people might regard as redneck rights began in 2005, Mr. Woods says, when legislators in 24 states refused to enforce a federal law that authorized obtrusive police searches, a law deemed unconstitutional both by many people on the left and by many people on the right. Although the controversial law still stands, the federal government has simply stopped trying to enforce it.
In Nullification: How to Resist Federal Tyranny in the 21st Century, Mr. Woods reports that now, "all over the country, state legislators are introducing measures by which their states will refuse to enforce federal laws that [they believe]violate the Constitution." The most successful nullification so far, he says, involves the medical use of marijuana - which, though illegal under federal law, has been authorized by 14 rebellious states.
But the most important nullification so far involves the refusal of states to enforce President Barack Obama's national health care reforms. Three states have approved resolutions of nullification, six states have resolutions pending in their legislatures and 17 states intend to proceed with similar resolutions. Idaho's resolution is typical: "The power to require or regulate a person's choice in the mode of securing health care services … is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment."
Nullification isn't an altogether obscure and anachronistic American constitutional device - as Canadians are apt to think. In Canada, we call it "opting out." Quebec nullifies federal law all the time and Alberta nullifies it occasionally. Yet the country thrives. The fact is we need all the nullifiers we can get. It's never wise to give a centralized government anything that approaches a quasi-monopoly on power.
A senior fellow at the Alabama-based Ludwig von Mises Institute, Mr. Woods is the author of 10 books, one of them The New York Times bestseller, The Politically Incorrect Guide to American History. In his latest book, he argues that the federal government will never recognize nullification but that, in the end, the states may well prevail. "If the people of the states are determined not to obey a law they consider unconstitutional, the law will simply not be enforced," he says. "The federal government can rant and rave all it likes. It won't matter."
But this soft sedition aside, what limits the expansion of the welfare state? Or are there any limits? Does the welfare state keep expanding forever and forever - or at least until, as the famous American political philosopher John Rawls once suggested, the poorest person in any society would be hurt by any further expansion? Does the welfare state, in other words, keep growing until it subsumes the national state?
The welfare state has momentarily hit the wall - in Europe primarily because of economic restraint, in the U.S. primarily because of ideological resistance. This pause is therefore a good time, argues U.S. political scientist William Voegeli, for conservatives and liberals to make a deal. Let conservatives accept the legitimacy of the welfare state. In exchange, let liberals accept limits on it.
Mr. Voegeli is a resident scholar at the California-based Claremont Institute, a conservative think tank, and author of several books. He has written extensively on the expansion of government and on the culture of dependency that it generates. In Never Enough: America's Limitless Welfare State, he concedes the liberal triumph of the expansive welfare state - but warns that the victory is threatened as never before.
Mr. Voegeli notes the growing backlash against Mr. Obama's expansion of the role of the federal government - a backlash that has apparently taken the President by surprise. It shouldn't, Mr. Voegeli says, have surprised anyone. From an ideological perspective, he says, the welfare state peaked in the U.S. with President Lyndon Johnson's Great Society in the 1960s. He attributes the silent expansion of government in the past 30 years, presided over mostly by conservative presidents, to inertial growth: The tendency of all government "to double spending in real dollars every 32 years."
All things considered, the concept of a deal is worth summertime contemplation. Preserve the safety nets. Get rid of the hammocks.