Most Important Thing We Can Do
by J. H. Huebert: The
Drug War’s Dubious Foundations
a written version of a talk given on March 5, 2011, at the Nullify
Now convention in Cincinnati.
How can you
challenge a federal law that violates the Constitution and, more
importantly, violates your liberty?
example, you wanted to get rid of the PATRIOT Act.
I suppose you
could try to elect a president who says he opposes the PATRIOT Act
and its violation of civil liberties. If a candidate said he’s concerned
about the government’s abuses under the PATRIOT Act, and if a candidate
said the PATRIOT Act is "shoddy and dangerous," and if
a candidate said things like "There is no reason we cannot
fight terrorism while maintaining our civil liberties" – maybe
you’d vote for him and hope that things change.
in 2008, millions of Americans voted for a candidate who did
say those things.
But when that
candidate, Barack Obama, became president, did he make good on his
promise to create more oversight over the use of National Security
Letters and sneak-and-peek searches? Of course not. Instead, he
did the opposite: He strengthened the government’s power
to spy on its people without a warrant or probable cause, and he
took the exact same views on government power that the Bush Administration
You could also
try to elect a new batch of Congressmen – people who say they’ll
respect the Constitution. Millions of Americans voted for Republican
candidates who made that promise in 2010.
And then what
happened when the PATRIOT Act came up for renewal a few months later?
Of course all of these people who had been elected who claimed to
love the Constitution – who insisted on reading the Constitution
aloud (once, in part) at the beginning of Congress’s term – voted
to renew the PATRIOT Act. Ninety percent of the Republicans in the
House of Representatives voted to renew the PATRIOT Act without
so much as a committee hearing, with no markups, no Amendments,
and just 40 total minutes of debate.
And of that
handful of Republicans who voted against the PATRIOT Act, most weren’t
even tea party members. They were people who had been in Congress
for years. Only eight freshman Republicans voted against the PATRIOT
Act, and some of the biggest tea party figureheads who go on and
on about the Constitution voted for it. No changes, no debate.
Democrats moved to add language to the PATRIOT Act that would have
required that intelligence probes of U.S. citizens are conducted
"in a manner that complies with the Constitution of the United
States" only two Republicans voted for it: Walter Jones
and Ron Paul.
the other Republicans – such tea party icons as Michelle Bachmann,
Allen West, Kristi Noem – showed just how much they really care
about the Constitution, for all their talk. They couldn’t even approve
a sentence that said the law had to be applied constitutionally.
politics aren’t getting us very far.
Game of the Federal Courts
the federal courts? They’re supposed to be the guardians of our
constitutional rights, aren’t they? Granted, they do protect some
people’s rights some of the time.
But if protecting
your rights requires limiting federal power, don’t expect the federal
courts to help. At all.
the courts give all federal legislation what they call a presumption
of constitutionality. That means that they assume that the federal
government can do anything it wants to you unless you can prove
that they can’t do a particular thing. And of course, no one can
ever prove that because the courts read Congress’s powers
of constitutionality actually turns the Constitution upside down.
If the Constitution really is intended to constrain government and
protect our rights, as we’re sometimes told, then all legislation
should face a presumption of unconstitutionality unless the
government can satisfy its burden to show that the law that it wants
to enforce is specifically authorized in the very short list of
powers given to Congress in the Constitution, to show that the law
is necessary and proper for exercising that power, and to show that
the law doesn’t violate any provision of the Bill of Rights.
the presumption of constitutionality that the federal courts apply
isn’t going to change. Ever. That’s because federal judges, including
Supreme Court justices, are chosen by the President and confirmed
by the Senate. And any person who a President would choose and the
Senate would confirm is going to be someone they know they can count
on to let them do pretty much anything they want.
It’s a rigged
And, by the
way, if the federal courts can’t get you one way, they’ll get you
W. Bush was president, he had the National Security Agency secretly
spy on the phone calls and e-mails of American citizens with no
warrant and no probable cause. A group of legal scholars tried to
challenge this flagrant violation of constitutional rights, and
in 2007 the case came before the U.S. Court of Appeals for the Sixth
said there was nothing that they could do about it. After all, no
one could prove that they were a victim of the government’s
spying because the spying was secret – and the government couldn’t
say who it was spying on because it was supposedly a matter of national
security. So no victim of this scheme – which everyone knew was
going on and every reasonably intelligent person can see is unconstitutional
– had any recourse at all in the federal courts.
a rigged game – rigged against you and your liberties.
Temporary Limited Privileges?
And maybe you’ve
noticed that even when the federal government does acknowledge your
liberties to some extent, it does so only grudgingly, and makes
as clear as it possibly can that, in the end, the government reserves
the right to do whatever it wants to you.
take the District of Columbia v. Heller gun decision from
a couple years ago, where the Supreme Court finally – for the first
time in more than 200 years – acknowledged that the Second Amendment
protects an individual right to own a gun for self-defense. In some
ways, it seems like a great decision; I certainly congratulate the
people who fought and won that case for their heroic work.
But have you
actually read the
decision by the Republicans’ hero, Justice Antonin Scalia? It
says that even though the Second Amendment does protect an individual
right, the right is "not unlimited" and subject to "reasonable"
So what’s a
reasonable restriction? Who knows? It’s whatever the Supreme Court
says it is in the next gun case. If history is any guide, the right
the Supreme Court ultimately recognizes will turn out to be very
When the lawyer
arguing for Second Amendment freedom in that case argued before
the Court, he had to recognize the government’s power to infringe
your rights to even get the justices to take him seriously. Even
while arguing the pro-freedom side, he had to admit that the government
could reasonably stop you from owning guns the government deems
inappropriate for civilian use, that it could force you to keep
your guns locked in a safe, and that it could force you to do and
not do all manner of things related to owning guns.
I’m a lawyer
myself, and I don’t blame him one bit for that. When you’re arguing
in a court, your job is to say what’s going to persuade the court,
which won’t always match your philosophical beliefs. I get that.
the game you’re playing in federal court at best – acknowledging
that the government has the power to do whatever it wants
and begging it to carve out just a little area where you can have
The only real
alternative to the rigged game is nullification, which allows the
states to declare federal laws unconstitutional, refuse to enforce
them, and protect their citizens from their enforcement.
isn’t about groveling before politicians and judges to get a few
scraps of liberty. Nullification is about the people standing up
to the federal government and simply saying no: These are
our rights, this is what the Constitution limits you to,
and you may go no further.
is the only way that someone outside the federal government – which
always wants as much power as it can get – can have a say as to
what’s constitutional and what isn’t. It’s the only way that the
people, instead of their would-be masters in Washington, can have
a say as to how much liberty they’ll be able to enjoy.
Thanks to Tom
Woods and his book
on nullification, more and more people are waking up to the
reality that presidents, Congressmen, and judges aren’t going to
fix things for us. And more and more people are looking to nullification
as a potential solution for the government’s ever-increasing intrusions
on our lives.
last month two bills were introduced in the Texas legislature to
put an end to sexual assaults and porno-scanning by the Transportation
Will the federal
government – the president, Janet Napolitano, the Congress, or the
Courts ever put a stop to the TSA? Of course not. The federal
government never repeals anything, never strikes down anything.
It only takes more and more over time.
So here’s what
they’ve introduced in Texas, in House Bill 1938. It says that an
"airport operator may not allow body imaging scanning equipment"
– meaning any device that uses backscatter x-rays or millimeterwaves,
that creates a visual image of a person’s unclothed body and is
intended to detect concealed objects – "to be installed or
operated in any airport in this state." It says that an airport
operator who violates that provision shall be subject to a civil
penalty of up to $1,000 for each day of the violation. And it authorizes
the Texas attorney general to not only collect the penalty, but
also to sue for injunctive relief – in other words, to get an order
from a Texas court to stop the airports from using the scanners,
to shut the TSA down.
And how about
those TSA agents who take the opportunities they get to sexually
assault whoever catches their eye?
There’s a bill
now in the Texas legislature to deal with those creeps, too, that
would put a new provision in the state’s sexual assault law. It
says that if a person
As part of
a search performed to grant access to a publicly accessible building
or form of transportation, intentionally, knowingly, or recklessly:
another person without probable cause to believe the person committed
an offense; and
the anus, sexual organ, or breasts of the other person, including
touching through clothing, or touching the other person in a manner
that would be offensive to a reasonable person,
then that person
will be guilty of what Texas calls a "state jail felony,"
which means they will be put in prison for at least 180 days
and up to two years.
to what the federal government does when its TSA workers when they
sexually assault someone: Nothing!
legislation in the works in New Hampshire and New Jersey, too. If
you want to learn more about these efforts and get some ideas about
what you might do to advance similar legislation where you live,
the Texas people have some helpful websites that you might want
to check out:
Must Be Ignored (Especially the Ones on the Supreme Court)
As this legislation
moves forward in Texas, I’m sure that legal scholars will weigh
in and claim that the states can’t do it. They’ll say it’s unconstitutional
for the states to do that – which is pretty funny, when you consider
that many of these legal scholars are just fine with at least some
amount of undeclared war, redistribution of wealth, restrictions
on speech, pre-trial detention, the "presumption of constitutionality,"
and so on. To prove that it’s unconstitutional, they’ll point out
that the constitution doesn’t actually say anything about nullification,
and they’ll argue that the U.S. Supreme Court would never recognize
nullification as legitimate.
But of course
nullification is not unconstitutional. You can read the historical
reasons why in Tom Woods’s book.
You can also
see why by just using your common sense. Supposedly, the Constitution
is the highest law of the land. Some people think this means that
the Supreme Court’s interpretation of the Constitution is the highest
law of the land, but of course that doesn’t make sense, because
the Supreme Court is just as capable of distorting or disregarding
the Constitution’s plain meaning as any other part of the federal
government. So if people in the federal government violate the
Constitution, it can’t be unconstitutional to hold them accountable
under the law. They’re criminals violating the so-called
highest law of the land, so it’s appropriate to treat them as criminals.
The whole point
of nullification is that the federal government must not be allowed
to determine the extent of its own powers because, when it does,
as we can see, it will decide that there are no limits.
arresting federal agents isn’t the only way to effectively nullify
a tyrannical federal law. One thing states can do is simply refuse
to aid the federal government in doing unconstitutional things;
some state and local governments have done just that with respect
to the PATRIOT Act. As Tom Woods mentions in his book, others have
refused to implement the government’s REAL ID Act.
And state and
local governments and ordinary people can do things to simply make
it more difficult for the feds to do their evil deeds. For example,
I like what many librarians did when the feds started trying to
get library patrons’ records to see what books they had read. They
simply deleted or shredded the data in advance so no one could ever
get to it. There are many ways to peacefully resist the federal
government and effectively nullify its unjust laws.
Important Thing You Can Do
support nullification, but not because I’m a big fan of the Constitution.
I’ve never been a big fan of the Constitution. We’ve had it for
more than 200 years, and look where it’s gotten us. It’s given us
the biggest, most powerful government in world history – a government
that kills hundreds of thousands of innocent people around the world
through war and many thousands more at home in less obvious ways.
You can say
the Constitution been distorted or partially ignored, but if it
can be distorted or ignored so easily, what good is it, really?
it’s not much good, unless a significant portion of the population
cares about liberty and is vigilant about defending its liberties.
If people become conditioned to the idea that their liberties come
from government – and exist only to the extent that the U.S. Supreme
Court decides to recognize them – the Constitution is useless. And
that’s exactly what’s happened in America.
On the other
hand, if people do decide to care about liberties and are willing
to fight for them, they are likely to demand and receive them regardless
of what the Constitution says. It’s the people’s consent or lack
of consent to being ruled that really makes the difference, not
a piece of paper.
why I like nullification.
is really about withdrawing our consent. It’s about declaring that
we should be allowed to rule ourselves and not be ruled by masters
in Washington. It’s about rejecting the received opinion of our
elites that things must be the way they have always been and that
we should simply shut up and listen to our betters. It’s about declaring
that what comes first are our liberties – not whatever’s convenient
for politicians and the powerful interests that finance their campaigns.
More and more
people are coming around to the ideas of libertarianism: the idea
that peaceful people should be left alone, the idea that government
doesn’t know what’s best for everyone, the idea that stealing and
killing don’t become okay when the government does them.
provides a vehicle for advancing these ideas that has a solid foundation
in our history. And even if these particular campaigns to nullify
this law or that law don’t work out, they will introduce more people
to this concept.
This will help
de-legitimize the federal government and its claims to absolute
power. It will nullify the myths about our government that exist
in people’s minds, that we’re taught from a very young age in our
the government’s legitimacy in people’s minds in the most important
thing we can do. It’s what leads to the withdrawal of consent from
tyrannical rulers of the sort we’ve seen recently in Tunisia and
Egypt. And it’s what will allow us to win in the end.
April 7, 2011
H. Huebert [send him mail]
is the author of Libertarianism
Today (Praeger, 2010). He is also an attorney, Adjunct Professor
of Law at Ohio Northern University College of Law, and an Adjunct
Scholar of the Mises Institute.
Visit his website.
© 2011 Jacob H. Huebert
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