State Non-Compliance is Its Own Penalty

Imagine for a moment that you are a basketball player.  The opposing team has the ball and you’re playing defense.  What would happen if you turned around to find that the court had doubled in size and the other team suddenly had 10 players?  With more court to cover and more players to defend, you would be playing a losing game.

That’s what happens to the federal government when states refuse to comply with their crummy unconstitutional “laws.”

Even so, there is sometimes disagreement among supporters of nullification as to whether or not nullification bills need to have specific penalties prescribed for anyone who violates the nullifying legislation.  For many, putting this kind of language into legislation is a sign that the bill has “teeth” and that the state is not willing to have its sovereignty trampled on.  In some states, the lack of penalties has been contentious to the point that even nullification advocates won’t support nullification or non-compliance bills.

This is an issue that Ohioans must address regarding Ohio Senate Bill 36, which would nullify federal firearms legislation and make it a first degree felony to attempt enforcement of any such federal laws.  Scott Landreth, Coordinator of the Ohio Tenth Amendment Center, reported today that SB 36 would die in committee “if the 1st degree felony charge for violators is not reduced or removed.”

The inevitable question was then posed:  “Is passing SB 36 a step in the right direction, even if there are no penalties for those who violate the new law?”

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Nullification 101: A Intro to Defending Liberty

The federal government is out of control, unable to limit its spending or satisfy its insatiable appetite for consuming the people’s liberties.  And these tendencies seem to get worse with each election.  Americans are starting to wonder whether or not Washington will ever fix itself.  But, what if it didn’t need it to?  What if the states held the power to hold Washington within the limits imposed on it by the Constitution?  More and more people are coming to the realization that, through nullification, the states can do just that.  But this concept, although rooted in history, is still new to many.  Here are some common questions about nullification, the answers to which serve as an excellent introduction to this important, long-forgotten principle.

What is nullification?

Nullification is the principle that the individual states have the authority to refuse to comply with unconstitutional federal laws.

What is it based on?

Nullification arises from the understanding that the states, by ratifying the Constitution, brought the federal government into existence for a few specifically enumerated purposes.  The powers that were delegated to it by the states in the Constitution are understood to be the only powers that Washington possesses.  As such, it cannot legally do anything that is not specifically given to it as a power.  This understanding was formalized by the Tenth Amendment.

Is it constitutional?

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Although the writers and ratifiers of the Constitution understood that the states retained all undelegated authority, the Tenth Amendment was added to ensure that this could never be challenged.

While nullification is not specifically mentioned in the Constitution, several key figures in early American history, including Thomas Jefferson, James Madison and Alexander Hamilton, openly supported the idea that states could refuse to comply with unconstitutional laws.  Furthermore, it makes no sense to believe that the Founding Fathers would have added the Tenth Amendment and then made its enforcement unconstitutional.  With this in mind, nullification is simply the manner in which the states can enforce the Tenth Amendment.

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The Government We Deserve

We all have people in our lives who influence not just what we believe, but how we think.  For me one of those people is economist and author Walter Williams.  Dr. Williams is one of a handful of people who have helped shape the way I think about economics, history and government.  Lately I’ve been thinking about a point that I have seen him make on several occasions.

I came across this point while reading a collection of Williams’ essays in a book titled Liberty Versus the Tyranny of Socialism.  It comes from a February 9, 2005 column in which Williams criticizes then-President Bush for ignoring the boundaries of the Constitution in his proposals for disaster relief.  The key point that stuck in my mind comes from this section of the column:

“Today’s politicians can’t be held fully responsible for our abandonment of constitutional government. While they can be blamed for not being statesmen, the lion’s share of the blame rests with 280 million Americans. Elected officials simply mirror public misunderstanding or contempt for constitutional principles. Tragically, adherence to…constitutional values…would spell political suicide in today’s America.”

In a 2011 interview, Williams reiterated the point and shared how this idea, an “epiphany” as he calls it, was illustrated to him in a conversation with the late Jesse Helms, a Senator from North Carolina.  As Williams tells it, Helms explained why he supported unconstitutional agriculture subsidies this way:  “He said, ‘Walter, I agree with you 100% that these farm subsidies ought to be eliminated.’ But then he asked, ‘Can you tell me how I can remain the senator from North Carolina and vote against them? If I do what you say, I would be voted out of office.’”  Williams continues, “Politicians who talk about cutting these programs are going to run into trouble. We have to get the American people, as much as politicians, to respect the Constitution.”

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Is Nullification Racist?

Proponents of nullification continue to spread the message that the solutions that Americans say they want will not be found at the federal level.  They painstakingly show how the principle is constitutional, supported by history and attractive to people from all points of view.  Yet, despite these efforts one charge is always leveled at nullification in an attempt to shut down debate.  This charge is that nullification is synonymous with racism.

The people who trumpet this charge base it on two points, the accurate statement that several southern states attempted to nullify desegregation in the 1950s and the inaccurate statement that the South used nullification to protect slavery in the first half of the 19th Century.  However, if we look at nullification’s history we find that it becomes incredibly difficult to make the claim that nullification is racist in principle.

Let’s review some of the ways in which the principles of nullification have been used with respect to race.

1826: Pennsylvania enacts a Personal Liberty Law which makes it more difficult to return runaway slaves to bondage.  The Supreme Court later declares this law unconstitutional.

1854-1858: Passage of Northern Personal Liberty Laws, state laws aimed at nullifying the Fugitive Slave Act of 1850 (eight Northern states pass laws to this effect and Ohio passes two).

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A Professor’s Defense of Nullification

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.”

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