We should be skeptical of anyone who claims to love liberty and yet does not support state and local nullification of unconstitutional federal laws. For far too long, those who advocate nullification as the “rightful remedy” to rein in the excesses of the federal leviathan have been vilified as “kooks” who support “a discredited doctrine” by people who otherwise claim to champion limited government.
This is nothing short of bizarre.
The burden of proof should be on those who reject nullification to not simply present a rehashed argument from the Heritage Foundation about why it isn’t constitutional, but to show why, if one cares about liberty, she should be against nullification. There’s a reason they never do this: they can’t.
One reason they can’t demonstrate this is because it’s logically impossible. Nullification involves state and local governments not complying with, or even actively prohibiting, the enforcement of unconstitutional federal laws. If the anti-nullifiers want to argue that liberty would instead be increased by allowing, or even aiding, the federal government to enforce unconstitutional laws, they can be my guest. This is the position they have put themselves in.
Perhaps they would retort that their goal isn’t to show that nullification isn’t good for liberty, but simply that it’s not constitutional. If this is the case, then they disagree with Lord Acton when he said, “Liberty is not a means to a higher political end. It is the highest political end.” To these anti-nullifiers, defending a view of the Constitution that centralizes power over more than 300 million people into the hands of nine Supreme Court justices is more important than liberty.
Let us consider the remarks of Robert A. Levy of the Cato Institute regarding Montana’s Firearms Freedom Act, which challenged the notion that the federal government can regulate commerce that takes place fully within one state’s borders:
Subsequent cases will determine which regulations are allowable. But until the courts say otherwise, federal gun laws are presumptively consistent with Second Amendment rights…What about Montana’s argument that federal restrictions on guns made and transported entirely within the state exceed Congress’s power to regulate interstate commerce? Over protests from some libertarian activists, myself included, the Supreme Court has consistently expanded the federal government’s power to regulate commerce to cover any economic act that, in the aggregate, could have a substantial effect on interstate commerce — even if the act is not strictly commercial and is wholly within one state. [emphasis added]
Here we see that Levy fully accepts and anticipates the Supreme Court continuing to “interpret” the federal government’s power to regulate interstate commerce to include regulating things that don’t cross state lines and aren’t bought or sold. Thus, by his own admission, he would sooner have federal courts make a mockery out of constitutional limitations than let state governments attempt to enforce them. And then he has the gall to claim that nullification is “flouting the very document that inspires that fight in the first place: the Constitution”?
If we are to seriously accept the idea that the Framers of the Constitution constructed a system that would allow nine judges in black robes (or, more accurately, five who agree with one another) to have a monopoly in deciding the most minute details of the lives of over 300 million people, we have to say that the Framers created an oligarchy, not a constitutional republic. And if we honestly believed that the Framers created an oligarchy, then I imagine our fervor for defending the Constitution would be non-existent.
This is why we, as lovers of liberty, must support nullifying for the sake of nullification: there really are no other realistic and reliable means for enforcing the limitations of the Constitution. Federal courts have proven that they are capable of making the most outlandish arguments in order to expand federal power. Federal legislators are the ones who created the problems in the first place and are quite resistant to being voted out. Nullification has already shown its effectiveness; it might prove to be one of liberty’s most powerful tools. If we are to say that we support the Constitution, should we not also embrace the most promising means of enforcing it?