Stephan Kinsella on Nullification and Secession

Every weekday morning I stop by Mises.org (after first going to LewRockwell.com) to read, learn something new, and share info with others. Today, to my surprise, what I consider to be one of the best writers anywhere, Stephan Kinsella, has written a blog post discussing an article that I wrote earlier this year. “Randy Barnett and the Destruction of Federalism.” I’m more than honored that Mr Kinsella has take the time to write a blog entry on my article. Thank you!

I thought it would be good to make a few points on Stephan’s post. My comments follow his, which are in italics.

I just recalled interesting article by Michael Boldin of the Tenth Amendment Center, Randy Barnett and the Destruction of Federalism. I had made some comments on it to someone in email, which are adapted below. I also commented on this previously in Randy Barnett’s Proposed “Federalism Amendment”. In my view, a better view is that amendments are pointless, as the state is construing its own limits. (See on this Hoppe and de Jasay.)

That’s actually the argument that I was at least attempting to make in the article – that nullification – mass civil disobedience to the central state, with support from the individual state governments and local governments – is a far better strategy than trying to reform the federal government through amendments (or any other way, for that matter)

Also, as Boldin is proposing nullification, he could have mentioned some previous proposals for amendments that do similar things–i.e. instead of just advocating nullification, advocate the recognition of this right, in an amendment to the Constitution

Since I don’t believe that amendments are the best route to go, this is not really in my line of thinking. But – yes, if I believed it possible that a national “consensus” could be reached for a constitutional amendment that the people of each individual state could direct their elected politicians to ignore federal laws and regulations deemed by those people to be unconstitutional – I’d be all in favor of it! I just think that a better strategy is to take action more locally.

It’s not clear why Boldin doesn’t mention secession. That goes along with nullification. The right to secede is the most important way to have real federalism–the threat of leaving. A real federalism amendment would explicitly recognize the right to secede.

Agreed. As to why I didn’t mention it – while nullification and secession are both essential checks on central power, I see them as different. As Professor Kirk Wood has pointed out in his multi-volume book, Nullification: A Constitutional History, nullification is actually the opposite of secession – it’s a way of saying NO, but still keeping the “union” together. It’s the states “saying,” in effect – we’ll stick around, but we’re not going to go along with (blank).

But, I do agree that secession is the ultimate check. And, I think it should go both ways. In a union of states that supposedly is a great advantage, if any state takes the opportunity of decentralization to start committing mass violations of liberty, then the rest of that union should kick them out.

Overall, I think Mr. Kinsella and I pretty much agree on these issues. My preferred method is various forms of non-violent resistance and civil disobedience. It seems to me that with states resisting federal laws on marijuana, real id, gun regulations and more, that the time is right to try to pull the state governments into the fold to help in such efforts. Thus, my strong support for state nullification both in that article and on this website as a whole

The funny thing here – in a recent report done by Media Matters I was lambasted for simply running a website that would discuss the idea of secession. Now, I’m not covering it enough! I guess I just need better balance…