Stephan Kinsella’s recent blog entry over at LewRockwell.com had so many good points and principles that….well…just read it….you’ll see. Make sure to click through some of the links for background info as well.
On Napolitano’s Freedom Watch, Professor Randy Barnett says he favors the constitutional amendment allowing two-thirds of the States to veto federal law (he also commented on Volokh). This would be good, but it is is not enough. Two-thirds of the States should not have to agree (as I noted in “Taking the Ninth Amendment Seriously: Review of Calvin R. Massey, Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights,”a better amendment would be that proposed by Marshall DeRosa in The Ninth Amendment and the Politics of Creative Jurisprudence: “When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.”; I survey other possible structural limitations on federal law in this review and in “Legislation and the Discovery of Law in a Free Society”).
But any State should be free to refuse to enforce unconstitutional laws—or, in my view, any federal law it doesn’t like—for any reason—even a constitutional law. If the Feds or the other States don’t like it that, say, California refuses to enforce federal drug law (or to permit federal agents to enforce it), or even to enforce “constitutional” federal laws, they are free to boot California out of the union. (Please, please, kick Texas out. Call us names, spit at us, hate us. Kick us out.)
The Constitution and the federal judicial appeal process is not the end-all be-all, or the only way to challenge the leviathan’s evil laws. A political argument need not be merely a legal one. The Fourteenth Amendment was illegally ratified but now is de facto part of the Constitution. The Constitution itself arose out of an illegal Constitutional Convention; it was a coup d’etat (see Rockwell on Hoppe on the Constitution as Expansion of Government Power). The nation’s size owes to the illegal Louisiana Purchase. Sometimes political reality becomes legal reality. And so here. Why can’t nullification be used to appeal to people’s moral and political sensibilities? If you persuade people the states should have the right to nullify—they will.