Recently by Thomas E. Woods, Jr.: The Return of Nullification
On Independence Day weekend Georgetown University law professor Randy Barnett and I appeared on Freedom Watch, Judge Napolitano’s new program on the FOX Business Network. In the first segment, the Judge and I discussed my new book, Nullification: How to Resist Federal Tyranny in the 21st Century, which argues that the states have the right to prevent the enforcement of unconstitutional federal laws within their borders. In the second, we were joined by Monica Crowley and Professor Randy Barnett, the latter of whom was skeptical of nullification as a valid constitutional doctrine or a plausible strategy against the growth of federal power. He has since followed up on our appearance with a blog post at the Volokh Conspiracy.
Professor Barnett’s argument is twofold. First, he believes insufficient evidence exists pointing to a power of state nullification within the original understanding of the Constitution. I think such evidence does exist, and I summarize the argument toward the end of the video clip below, though of course a lengthier answer appears in my book. Secondly, he holds that the federal courts, and the Supreme Court in particular, will not uphold a state power of nullification. I don’t think anyone would disagree with that. His conclusion, though, is that nullification is therefore a waste of time — if the courts don’t acknowledge it, what kind of progress can it make?
Legal scholar J.H. Huebert was particularly taken aback by Barnett’s dismissal of nullification as a waste of time:
I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.
Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.
Who’s wasting their time?
As Huebert suggests, Barnett’s own career suggests the utility of nullification. In the wake of Barnett’s heroic but failed attempt before the Supreme Court to protect medical marijuana patients from the enforcement of federal drug laws, such patients continued to go about their business. As many as one thousand medical marijuana dispensaries still operate in Los Angeles County alone. This is not the same thing as the state of California issuing solemn resolutions in defiance of the federal government, but it’s not nothing, either. I say this not to be flippant, since I do very much respect Professor Barnett and his work, but how does he feel about this defiance of the Supreme Court? Would he order all these poor folks to desist? Would he tell them the Justice Department has every right to punish them now? Or does he not believe they are justified in their civil disobedience?
In fact, why did the Justice Department eventually back down? Because they began to doubt their interpretation of the commerce clause? They backed down because resistance in the state was too great.
Barnett is right about the Supreme Court: the justices aren’t going to like nullification. But if we conceive of nullification in the twenty-first century as a species of civil disobedience sanctioned by a state government, what does it matter? Nullification involves the refusal to sanction unconstitutional edicts from whatever quarter they may come.
I once asked a left-wing critic whether he would have supported state nullification of the federal roundup of the Japanese in America during World War II. Not necessary, he said: "The equal protection clause as applied in Yick Wo in 1866 would have worked just as well." Now that’s classic. Standing there holding a Court precedent in your hand as the goons whiz by works just as well as a state government telling them to stick their roundup where the sun don’t shine?
Barnett cites Madison’s Report of 1800, but to my mind the most significant passage in that document is where Madison insists that some recourse must exist for the states in cases in which even the hallowed judicial branch betrays the Constitution. Barnett may in fact place too much emphasis on the single figure of Madison; as Kevin Gutzman shows in chapter 4 of Virginia’s American Revolution, the Virginia General Assembly debates over the Virginia Resolutions of 1798 make clear that everyone agreed an unconstitutional law was null and void. Nullification merely disallowed the enforcement of a nonexistent constitutionality. What could be controversial about that?
Now I do support the general thrust (though not all the particulars) of Barnett’s proposed Bill of Federalism, a series of constitutional amendments for the restoration of federalism. (Barnett has since amended point 6 to read "two thirds" instead of "three quarters.") It would, however, be extremely difficult to introduce and ratify, and we would still be left with the need for a last-resort defense mechanism for the states in case these well-meaning amendments themselves should be disregarded or fail to fulfill their intended purpose. Anything we might propose, Barnett’s amendments included, faces an uphill battle against very difficult odds, so I question the helpfulness of singling out state nullification for criticism as if we were just drowning in plausible alternatives. What do nullification skeptics recommend instead, particularly if we rule out the failed strategies of the past that we all know perfectly well will yield us nothing but more failure in the future? I assume Professor Barnett agrees with me that the definition of insanity is expecting another GOP plastic man — Mitt Romney, I’m looking in your direction — to put things right.
To be sure, it could turn out that, short of the financial day of reckoning that is surely coming, slowing down the federal government is simply impossible. But if we are to make any inroads against it, they are probably not going to come in the form of tidy legal briefs whose persuasive force overwhelms the judicial branch. They are unlikely to come through legislation, as generations of failure to roll back the federal government should have made clear enough.
Ultimately, a coordinated response by as many states as possible, in which those states declare that they will not comply with, and will work to prevent the enforcement of, a federal edict seems like the only realistic way the federal government might be forced to retreat. We would be way beyond court decisions at that point. Court decisions would be like Politburo speeches in 1991. The states would be carving out a new modus vivendi with the federal government, inspired by a long-dormant Jeffersonian tradition whose wisdom cannot seriously be doubted in 2010.
Times of economic turmoil can put options on the table that might have been dismissed under other circumstances. I’m afraid the best we can hope for in the coming years is a lengthy period of economic stagnation, followed by serious social upheaval when the entitlement programs inevitably collapse. Is it so unthinkable that a few governors, anxious to preserve some kind of livable economic conditions for their people, could begin defying unfunded mandates from the federal government in the name of the prosperity of their state? A financially strapped federal government will hardly be able to stop them. What supporter of the market economy and the free society would oppose a development like this? No one, right? So why not prepare the ground for it? That’s why I decided the time was right for a book that would set forth the most persuasive historical, constitutional, and moral arguments for a once-despised remedy that may turn out to be the last functioning defense mechanism of a decaying republic.