This Wednesday I head to Flagstaff to speak at Northern Arizona University on the subject of nullification, a topic that to my surprise continues to attract quite a bit of attention from friends and foes alike. Last week, for instance, a heavily trafficked site ran an article decrying what it called “the normalization of nullification,” by which it meant the growing interest in the Principles of ’98 in ever-more mainstream circles. (On a related note, just a few hours ago someone wrote to tell me that New York Law School will offer a course next year called “Constitutional History: Supremacy vs. Nullification.”) Naturally, the author followed this shock and horror with the usual accusation: anyone who favors this Jeffersonian solution must have sinister intentions! For what kind of enemy of the people could actually oppose both Joe Biden and Mitch McConnell? Choose one of these great men, citizen, for between them all political wisdom is to be found!

I have replied to the common arguments against nullification in systematic fashion, though the zombie attacks keep on coming. I might add that the nationalists who raise the customary objections are so committed to conventional thinking that the most obvious moral questions never to occur to them. Would it have been wrong for the states to try to nullify the internment of the Japanese in the 1940s? Was it wrong for Wisconsin, expressly citing the Kentucky Resolutions of 1798 and 1799 (which introduced nullification into the American political lexicon), to oppose the Fugitive Slave Act of 1850? Is the federal war on drugs just A-OK, even though it’s been called the new Jim Crow, just because it happens to be carried out by our wise overlords in Washington rather than by the states? Would it have been easier or more difficult for the totalitarian regimes of the 20th century to carry out their atrocities against vulnerable minorities (whether Jews or Ukrainian “kulaks” as the case may be) had those countries instead been loose confederations of states? In other words, although states at all levels are capable of great enormities, why is the moral benefit of the doubt given to the most murderous institution in human history, instead of to those decentralizing forces that seek to limit its predatory behavior?

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