Category Archives: Government

The Cato Institute on Nullification

I enjoy much of the work done by the Cato Institute. I have recently been able to visit their facility and enjoy lectures by experts in different policy areas and the classical liberal tradition. However, one wonders if being too close to the Potomac fogs one’s thinking when it comes to federalism and the 10th Amendment.

In a policy analysis called “How States Talk Back to Washington and Strengthen American Federalism,” John Dinan excoriates the legitimacy of state nullification of unconstitutional federal laws and tells states how they ought to properly grovel before the federal government. The paper could have just as been easily been entitled, “How States Can Beg Washington and Be Properly Subordinate.”

To be clear, Dinan is specific in what he considers nullification: a state declaring a federal law null and void. Organizations like the Tenth Amendment Center tend to be more expansive in how they use the term, including things like state noncompliance with unconstitutional federal laws, such as Missouri not allowing state and local law enforcement assist federal agencies in enforcing federal gun laws, or outright contradictory laws, such as marijuana legalization in Washington and Colorado. Dinan considers these latter measures not to be nullification, but legitimate uses of state power. He hopes that they will eventually lead to disputes in state and federal law being “resolved” in federal courts. Anyone who has any familiarity with federal judges and values individual freedom ought to be very skeptical that giving the federal government a monopoly in deciding disputes between itself and the states will result in a net increase in freedom.

Just consider the case of Gonzalez v. Raich (2005), where the Supreme Court decided that a woman growing medicinal marijuana for her own consumption with a license in California could be regulated by the federal government under the Commerce Clause. That is, an act that fully performed within one’s own home and involves no transactions, can be regulated by the federal government as interstate commerce. Regardless of what one thinks of the use of marijuana, one should realize that such nonsensical, Orwellian stretching of terminology in order to maximize the power of the federal government is not good for freedom or the 10th Amendment. We should put no faith in the federal courts to restrain the federal government. And yet, this is what John Dinan and folks at the Heritage Foundation would have us do.

Putting aside the historical arguments about James Madison, Thomas Jefferson, and the constitutionality of nullification, I find Dinan’s argument to be internally inconsistent. He believes that the constitutional method of deciding what is constitutional is through judicial review – giving the federal government the monopoly on constitutional interpretation. However, “judicial review” appears nowhere in the text of the US Constitution, nor does the Constitution grant a monopoly to the federal courts to decide what’s constitutional for the federal government to do. Rather, judicial review came about through practice; the US Constitution doesn’t really explicitly state what remedies are to be pursued when the federal government claims powers not delegated to it. In this sense, I don’t see why, when the federal government abuses the Constitution to such an extent that the republic is essentially unrecognizable, that the practice of nullification would be any less legitimate than judicial review.

Ultimately, I don’t know why supposed advocates of freedom are so quick to dismiss nullification. They argue that it’s unconstitutional, and let’s assume for the sake of argument that it is. My question is, “Why do you support the Constitution?” I would assume because it is meant to preserve freedom. But, clearly, the Constitution as the Supreme Court has interpreted it has become a justification for the US mega-state. For people like Dinan and those at Heritage, the Constitution has then morphed from a means to an end. As I argue at the Tenth Amendment Center blog, if we support the Constitution, we should also embrace the most promising means of defending it: nullification.

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Self-Reliance as the Envy of the Masses

Robert Bergdahl

It would be too simple to write off the reactions to Robert Bergdahl’s Arabic- and Pashto-laden speech – to say nothing of his beard – as merely so much anti-Muslim bigotry in America. Bill O’Reilly, for example, was obviously upset because Robert Bergdahl’s presentation could conceivably – somehow, somewhere, by America’s lowest common denominator – be construed as weakness on the part of the federal government, which is why he said “[Bergdahl’s] appearance was totally inappropriate.” Accusing O’Reilly of bigotry does absolutely nothing to further a real understanding of his influential views, which are dominated by a desire to implement large-scale national solutions to nearly every problem.

Mass media ignorance aside, Robert Bergdahl is obviously the kind of man who doesn’t lie down and accept that something awful is happening – he acts. Studying two languages while establishing numerous contacts on the other side of the planet is the real-world equivalent of Liam Neeson in Taken; it’s also proof of a level of devotion to which every father aspires. His unglamorous willingness to “look Muslim” and say whatever might keep his son alive shows that he loves his family more than the idea of “killing foreigners whom the State has designated the enemy.” As Will Grigg has pointed out, such commitments constitute “an unforgivable heresy.”

Perhaps more offensive to the masses than his failure to worship the unitary American nation-state, however, is Bergdahl’s failure to let government “experts” take the lead in returning his son; Robert was personally involved with “the Qatar connection” that ultimately led to his son’s release. This elevated level of self-reliance – which naturally carries with it some eccentricities – is still quite common in Idaho. But much of America has lost it, and to them Robert Bergdahl is a conspicuous reminder of their dependence upon the unsustainable nanny-state that is increasingly unable to meet their expectations.

As always, those who willingly submit to paternalistic government are above all envious of their more courageous peers. It seems to me that this envy is the real driving force behind the alternately vapid and vicious condemnations of the Bergdahls. How else can one make sense of the simultaneous claims that Bowe and Robert are individualists who “distance [themselves] from institutions” and that they sympathize with cults of religious violence?

Sadly, coherence is of no concern when there’s some imaginary darkness to defeat, and envy has a funny way of making its object appear pitch black.

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Are Term Limits an Admission that Democracy is Flawed?

By Tate Fegley and Jackson B. Archer

To many people, the re-election of many US Senators and Congressmen is a mystery. How could it possibly be the case that, with approval ratings nearly in the single digits, incumbents maintain control over their seats the vast majority of the time? What’s going on here? Isn’t democracy supposed to make sure “the will of the people” is being done?

Grade school presentations of democracy lead us to believe that allowing the people to vote on what politicians are in office ensures that government is responsive to their needs. But with such low congressional approval ratings, it would appear that such a naïve view of democracy isn’t entirely accurate, at least not on such a large scale as the US nation-state. Perhaps what we have here is a “democracy failure” that needs to be corrected by intervention. Continue reading

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Localism, Federalism, and the 14th Amendment

I recently wrote a guest post for an Arizona-based website called Western Free Press. The proprietor there shares many of the ideals of The New Polis and has graciously shared his growing platform so that they may have a wider audience.

What I chose to write about is the complicated issue of the 14th Amendment to the US Constitution and whether incorporating the Bill of Rights’ restrictions on the powers of the US Congress (or perhaps I should say ‘clarifications’ as Jefferson would argue that the power to abridge the freedom of speech, for example, was never enumerated to the federal government in the first place) to the state and local governments has increased or decreased individual liberty. I argue that the application of the 14th Amendment has unambiguously expanded the power of the federal government to the detriment of both localism and federalism. Also questionable in this shift of the balance of power between the states and the federal government is that while the federal government is seen as having the ability to overturn the decisions made by state and local governments, the common position is that state and local governments have no corresponding power to overturn the abuses of the federal government (even a Cato scholar claims that state nullification is “discredited” and “a nonstarter in the 21st century.” I will address these claims in a future post). Even so, many friends of liberty see this check on state governments an unambiguously good thing for freedom. What are we to do if the state governments violate individual rights? they ask.

One of the best analogies for this, I think, is whether one would be comfortable with the UN intervening and overturning the unconstitutional decisions of the US government. I would hope the answer for those who value individual liberty would be a resounding “No!” as even if the UN made the right decision in a few cases, it is generally anti-liberty and anti-localism. Furthermore, the times where it is wrong would be much more destructive, just as when a bad policy is made at the national level rather than the state level. It is harder to escape or mount a political battle against it. Thus, we should be wary of large, unaccountable powers that are long distances away having the ability to overturn governments that are more local, even if they may be right sometimes. The question isn’t which level of government tends to be right, but rather which one is more dangerous when it is wrong.

So, I request that you check out that post here and let me know what you think.

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Jackson in the Valley, Feb. 2-8

Idaho lawmakers are considering a bill that would allow anyone with Idaho’s enhanced concealed-carry permit to carry a gun on campus. In spite of my devotion to firearm freedoms, I am hardly moved by the predictable knee-jerk reactions on both sides. I embrace the right to self-defense, but the 2nd amendment – along with the rest of the Bill of Rights – was only meant to restrain the federal government, not state governments. Recognizing this would go a lot further toward increasing the freedom of Idahoans than blind ideological devotion to a certain conception of political or natural rights. Continue reading

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The New Polis Podcast 5 – Voting and Political Participation

Tate and Jackson B. discuss different philosophies about voting, both in the context of the nation-state and at a more local level. Is it your duty to vote? Do you have a right to complain if you don’t vote? Or, are you endorsing the system by voting? Find out what we have to say and let us know what you think!

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Boise PD Chief Masterson and His New Ride

MRAPOn Friday, November 18, Boise Chief of Police Mike Masterson wrote in the Idaho Statesman about the BPD’s acquisition of a Mine-Resistant Ambush Protected vehicle (MRAP). Ostensibly, these vehicles that were previously used in war zones and given to local police departments by the federal government are supposed to increase public safety. Chief Masterson asks a prudent question: “Are we seeing the militarization of local police?”

For many local police departments, this question can be answered undoubtedly in the affirmative (see this map of botched paramilitary police raids). However, I don’t believe this to be the case for the Boise PD (yet). Fortunately, policing is still largely under state and local control, but, as with everything else, the federal government continues to assert itself in these affairs, such as through these giveaways of military hardware, or even heavily funding the salaries of local police departments. Continue reading

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Filed under Government, Local Politics, Nationalism