Supporters of nullification cannot have a conversation on the topic without quickly encountering three arguments: that the actions of the federal government are supreme, that the Supreme Court is the final determiner of constitutionality and that the way to reject unconstitutional legislation is to elect more of “the right people” to positions in the federal government.
As reported by Tom Woods, these objections were recently and ably swept aside by Donald Livingston, a professor of philosophy at Emory University. Livingston provided written testimony to the South Carolina House Judiciary Committee in defense of nullification. In response to the above objections, here are Livingston’s answers:
On the Supremacy Clause of the Constitution
“State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all.”
“Consequently, state nullification is not an act whereby a state refuses to comply with a federal law that it doesn’t like. Nullification is the claim that the supposed law is not a law at all because it is unconstitutional.”
On the Supreme Court as the Ultimate Authority on Constitutionality
“To deny state nullification is to say the central government can define the limits of its own powers which makes our liberties a gift to us from the central government. That is what one is logically committed to who says the Supreme Court has the final say over what the reserved powers of the states are.”
On the Belief that the Federal Government’s “Horizontal” Checks are Effective
“…Congress could, under Article III, nullify the Supreme Court’s control over school prayer, abortion, law enforcement, gun control, and a hundred other things by removing those topics from the Court’s appellate jurisdiction. But it has refused to exercise that power. The Republican Party controls the House which has exclusive control of the purse. The House by a simple majority could nullify Obamacare tomorrow by refusing to fund it, but it is not likely to do so. Instead the House cooperates in the expansion of central power.”
Livingston’s short testimony provides ample evidence of why nullification is constitutional and why trusting the federal government to limit itself is total folly. Let’s all work to make sure our Ohio politicians are receiving this message.