Recently by J. H. Huebert: The Drug War's Dubious Foundations
This is 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?
Suppose, for 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.
Of course, 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 had taken.
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.
When House 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.
Meanwhile, 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.
So electoral politics aren't getting us very far.
The Rigged Game of the Federal Courts
What about 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.
After 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 so broadly.
The presumption 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.
But unfortunately, 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 game.
And, by the way, if the federal courts can't get you one way, they'll get you another way.
When George 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 Circuit.
That Court 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.
Again, it's a rigged game — rigged against you and your liberties.
Rights or 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.
For example, 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" restrictions.
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 thin indeed.
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.
But that's 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 some liberty.
The Nullification Alternative
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.
Nullification 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.
Nullification 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.
Texans Against TSA Tyranny
For example, last month two bills were introduced in the Texas legislature to put an end to sexual assaults and porno-scanning by the Transportation Security Administration.
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:
(A) searches another person without probable cause to believe the person committed an offense; and
(B) touches 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.
Compare that to what the federal government does when its TSA workers when they sexually assault someone: Nothing!
There's similar 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:
The "Experts" 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.
Other Ways to Nullify
Of course, 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.
The Most Important Thing You Can Do
I strongly 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?
Apparently 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.
And that's why I like nullification.
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.
Nullification 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 government schools.
Nullifying 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.
Jacob 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.