Is Nullification a Waste of Time?

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At the Volokh Conspiracy blog, Randy Barnett says libertarian political activists shouldn’t waste their efforts on nullification, as Tom Woods urges in his new book, because it’s a “sketchy” theory. 

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?     

UPDATE: Professor Barnett responded on my blog, and I’ve responded in turn to him.

9:47 am on July 9, 2010