Category Archives: Nullification

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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“Nullification Works”

The Tenth Amendment Center is reporting that the federal government has basically capitulated to the nullification efforts of Washington and Colorado concerning the use and sale of marijuana. The link is well worth reading, and I’d like to add a few comments of my own.

grow-freedom Nullification works because it employs “corporate resistance” rather than “individual resistance.” Against the might of a large, modern state, an individual’s power is hopeless. But when resistance occurs corporately by people who share a common vision of liberty, even a small political order can succeed against a relatively larger one. Such resistance is often most effective when it is non-violent.

Of course, your community’s idea of liberty might not entail legalization of cannabis. Maybe it entails the right of law-abiding citizens to purchase firearms free of taxes that support gun-grabbing career bureaucrats living 3000 miles away in a city with more than twice the crime your town experiences. Maybe it involves something else altogether. The key thing to remember is a community’s right to self-determination, even if others have fundamental disagreements about a certain way of life.

I’m far from the first person to advocate drug use, but there are worse things than peacefully altering one’s mind. If we are not willing to acknowledge the right of self-government in Washington and Colorado, how can we expect them to acknowledge the same right for Idaho or Boise?

Self-government is not achieved merely by a “right” to vote. A right, after all, is an abstract thing; voting, like the special interest money that actually controls American political life, is a concrete thing. Self-government is rooted in the concrete actions and experiences of individuals and communities, independent of talk about rights. The American Founders declared they had certain inalienable rights, but they could not achieve self-government except through the finite act of withdrawing from the authority of the British Empire.

I support MissouriA complete break was necessary in 1776, but it is arguably not (in most cases) necessary for any state or community today. What is necessary is for the people of the states to remove themselves from the “authority” of the federal government to act unconstitutionally; this they can do by nullifying unconstitutional laws within their own borders. Washington and Colorado have done this with regard to marijuana laws, and it would be great to see Idaho do it on any number of D.C.’s unconstitutional acts.

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National ID, Gun Control, and State Resistance

real-id-Americard

By Tate Fegley & Jackson B. Archer

Immigration policy is perhaps the single best example of the federal government’s failure to lead, follow, or get out of the way. The feds refuse to lead with common-sense reform, refuse to follow or enforce the laws already on the books, and refuse to get out of the way when states attempt to take matters into their own hands. The recent 844 1075-page immigration reform bill has received extra attention lately due to its provision for a National ID system though the E-Verify program. Currently E-Verify is implemented to various degrees by states to prevent employers from hiring illegal immigrants, with a success rate of only 46%. But the proposed legislation would integrate it with state drivers’ license photographs and information, essentially creating a National ID database with everything but a card. With the Justice Department spying on journalists and the IRS targeting Tea Party groups, it doesn’t take much imagination to see the incredible potential for abuse a National ID system would bring. Continue reading

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Filed under 2nd Amendment, Immigration, National ID, Nullification