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.