The argument against Nullification, with a lot of folks, seems to be that at the end of it all… if the Federal Government wins in their own courts, we (the States/People) must choose to either back down, or attempt secession.
This argument is absurd!
Lets follow the logic:
1. A State legislature determines that a federal action lays outside the scope of Congressional authority. The examples of this are legion, but to name a few: Making it illegal to publish critical statements about the President, making it illegal to trade with foreign nations, initiating a Draft to invade Canada, establishing a National bank, making possession of a specific medicine a crime, infringing upon the right to keep and bear arms by taxation or regulation, making it illegal to enter into certain contracts, making it mandatory that citizens assist in the kidnapping and return of escaped slaves, etc, etc, etc…
The State would then pass some sort of hindering legislation (at the Tenth Amendment Center we call this a Nullification, as Thomas Jefferson called it in the Kentucky Resolution). This legislation could be as mild as a statement disapproving of the federal action in question, or as severe as a bill making it illegal to enforce the abominable usurpation within the State, and calling for severe penalties for Federal and/or State officials attempting to enforce the statute in question. Or anything in between.
2. If the feds challenge the case, as they may or may not do, (obviously depending upon the size of the challenge to their authority), they will sue in their own court (with them as the judge). Setting aside the absurdity of them judging themselves in their own court, lets just skip ahead to them deciding that they are in the right. Set aside the fact that they are not a signer of the Constitution, but rather a creature of the Constitution (think Frankenstein here). Set aside the (obvious to most grade schoolers) conflict of interest that Federal judges have in these matters, as their paycheck comes from the Federal Government and they are aggrandized by ruling in favor of the feds – lets just say that they agree that the citizens of the State are in the wrong.
3. Lets look at the cases in which this has happened recently: Have the feds invaded and/or crushed the dozen or so states that have passed laws to legalize Medical marijuana, even though its illegality has been upheld by the Supreme Court? Of course not. How about the more than two dozen states that have made enforcing the Real I.D. Act impossible? Did I miss the revolution, or have some of our fearless “Tea Partiers” lost their courage? The fact is, for something so minor, the feds cannot risk outright conflict with us. If it can pass in a state, and the populace have the courage to defy the feds on an issue, the feds would have too much to lose to make such a small issue into an outright civil war!
Contrary to popular belief, nullification did not lead to the Civil War. The Southern states had nothing to nullify. Slavery was fully Constitutional according to both the original intent and President Lincoln, who agreed to sign on with the Amendment forever banning any interference with the institution of slavery! The only possible way you could decide that nullification played a roll in the Civil War would be if you look at southern complaints, (where some of the southern states complained that the northern states were nullifying the fugitive slave laws). But I ask you… why should those laws not have been nullified? And a question more to the point…why can’t we live with the ambiguity of Montanans writing laws for Montana, and Oregonians writing the laws for Oregon? Why are we attempting to make all the states clones of Washington DC?!
Why is it that Conservatives have lost their courage where the left so defiantly treaded for medical marijuana? Do Conservatives have the stones to reclaim their liberties from the Feds, or am I just shouting into the wind?