Concerned with the bracing challenges of federal overreach and an unprecedented governmental expansion far beyond the limitations of the Constitution, many have turned to state nullification as the solution to curb excess growth and obstruct liberty-crushing policies. Nullification is an answer to that fundamental question: If the Supreme Court is the ultimate arbiter and defender of our liberties, then who will protect us from Court when it destroys our liberties? Supporters of state nullification look to the state; Murray Rothbard looked to the individual.

Rothbard criticized “state nullification” within his Anatomy of the State, fundamentally, as a nice idea that doesn’t go far enough. And because of its limited scope, will suffer from the same abuses that the Constitution has undergone. But his critique suffers from the same weaknesses inherent within Anarcho-Capitalism, and appears to be the futile striving of an “all or nothing” ideology.

If, indeed, a subordinate interest should rightfully have a veto over matters concerning it, then why stop with the states? Why not place veto power in counties, cities, wards? Furthermore, interests are not only sectional, they are also occupational, social, etc. What of bakers or taxi drivers or any other occupation? Should they not be permitted a veto power over their own lives?

Instead of recognizing the potential for incremental change and a concrete system for protecting liberty, Rothbard rejected nullification as a continuation of an existing flawed system.

This brings us to the important point that the nullification theory confines its checks to agencies of government itself. Let us not forget that federal and state governments, and their respective branches, are still states, are still guided by their own state interests rather than by the interests of the private citizens.

Government is then the problem. Any and all government is inherently bad, therefore, a nullification that relies upon government is pointless and doomed to failure.

What is to prevent the [nullification] system from working in reverse, with states tyrannizing over their citizens and only vetoing the federal government when it tries to intervene to stop that state tyranny? Or for states to acquiesce in federal tyranny? What is to prevent federal and state governments from forming mutually profitable alliances for the joint exploitation of the citizenry?

Rothbard missed the most basic tenet of federalism: A centralized government sinks the entire ship, while multiple states are meant to be like watertight compartments — breaches in the hull can then be sealed off and contained. But Rothbard had almost utopian-like aspirations, and contended that any holes in the hull of the ship should be immediately patched and self-contained. How this can happen, without essentially building a ship-within-the-ship, is a mystery. The solution that Rothbard gives poses more problems than it solves: Individual Nullification.

For one thing, just as the right of nullification for a state logically implies its right of secession, so a right of individual nullification would imply the right of any individual to “secede” from the State under which he lives.

His prescription of individual anarchy should come as no surprise coming from one of the leading anarchist thinkers of the 20th Century. However, I’m concerned with gaining actual freedom for individuals, and not promoting an untainted idealistic ideology. Frankly, I don’t see how anarchy will defend freedom. If everyone has the discretion to “secede” from the government, or “nullify” any laws they deem unconstitutional, there is no adequate check upon the ultimate threat to freedom: the individual. Arguing for state nullification is an argument for another tool in the arsenal of ordered liberty: a sustainable reality.

However, falling into Rothbard’s utopian vision will only lead to a society, where like in the Judges, “every man did that which is right in his own eyes.” When chaos ensues, despotism will come in the form of a strong man. Rejecting freedom begins by first rejecting the law that keeps freedom alive. Anarchy loves liberty so hard it could kill it.

Joshua Nuckols

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