Libertarians don't get it when it comes to nullification
By Michael Boldin
I’m rarely surprised to hear mainstream conservatives or liberals oppose nullification. Even though the opposition is shrinking significantly, it’s still fairly common to hear average folks or politicians on either side claim that “you can’t do that!” Or, the usual claim, “Federal law is supreme, nullification is unconstitutional.”
What does surprise me, though, is to hear opposition from self-professed libertarians (ranging from political libertarians to anarcho-capitalists) in response to nullification efforts of all kinds. The common version of this opposition is that nullification doesn’t count unless there’s some kind of physical stand off between state or local government officials and federal government officials.
This isn’t a rare thing among libertarians, either. It’s somewhat pervasive.
I find that odd coming from people who would be quite familiar with the acronym, NAP. (and yes, I understand the difference between aggressive and defensive violence). But, that’s a different discussion altogether.
Here’s how the discussion usually goes.
A state or local bill is passed which bans compliance with or assistance to a particular federal law. We recognize, as James Madison did in Federalist #46, and Judge Andrew Napolitano did earlier this year, that mass noncompliance will render federal laws “nearly impossible to enforce,” as Napolitano said. Madison affirmed this when he wrote that if a number of states were to refuse to comply, it “would present obstructions which the federal government would hardly be willing to encounter.”
So, disagreeing with both Judge Napolitano and James Madison, libertarians of this particular stripe tend to tell us that such noncompliance doesn’t work. “The feds will just come in and enforce anyway,” is a common response. Or, as Edwin Vieira recently stated, “This is not nullification; rather, it is simply non-cooperation.” And, “it is a stop-gap measure at best.”
Setting the effectiveness of mass resistance aside (along with the attitude of brushing it off as something to refer to as “simply”), the real question to address here is this – are noncompliance bills “simply non-cooperation” or do they qualify as nullification? Are they one in the same, or something completely different?
In response, I’ll start with the guy who literally wrote the book on nullification, Thomas E. Woods, Jr. The book, of course, is Nullification: How to Resist Federal Tyranny in the 21st Century. Here’s what Woods had to say:
“The Tenth Amendment Center has done more than anyone in the world to promote the Jeffersonian idea of nullification.” [emphasis added]
So here’s how we define nullification over at TAC: ”Any act or set of acts which has as its end result a particular law being rendered null and void, or unenforceable within a particular area.”
At this point, if “are you kidding me?” just crossed your mind, I wouldn’t blame you. I know that I shouldn’t cite my own organization to support a view made by my organization. But there is a point to be made here. While I certainly respect the contributions made in the broader constitutional understanding and the libertarian movement by people like Vieira, nullification isn’t their expertise.
That doesn’t mean that the Tenth Amendment Center is the only place to get this view on nullification. In fact, for libertarians, some of the leading thinkers alive agree with us. Here are a few examples:
Ron Paul: The man who’s expanded the libertarian philosophy more than anyone in history views state noncompliance bills as nullification. He’s referred to them on a number of occasions. Most recently, he did so in discussing the nullification happening in medical marijuana states, with a focus on the legalization efforts being done in both Colorado and Washington State. This was early on in the premiere episode on the new Ron Paul Channel. He did the same on the campaign trail HERE, and HERE.
Tom Woods: At Woods’ LibertyClassroom.com, nullification is defined as “the idea that the states can and must refuse to enforce unconstitutional federal laws.” It’s not defined solely as “when state and local law enforcement has a physical standoff with federal agents.”
Judge Napolitano: In an interview with Ron Paul, both the Judge and Ron clearly understood that state noncompliance qualified as nullification – even without a physical interposition against the feds.
Mark Thornton: Writing at Mises.org, Thornton informed us that “The people of Colorado and Washington have effectively nullified US drug laws in their states, with respect to marijuana.”
Lew Rockwell: In a podcast with Tom Woods. ”Michael Boldin…points out that it was the drive to legalize medical marijuana that has been the key aspect of the whole nullification movement in so many states where there has been actual nullification, at least to a large extent, of what the feds would like to outlaw.”
There are many others, but that’s a good sampling.
So, when libertarians claim that things like “mere noncompliance” efforts in regards to federal laws on guns, hemp, spying, mandates, or anything in between somehow “don’t qualify as nullification,” they’re disagreeing with some of the top libertarians alive today. Just sayin’.
More important than what qualifies as nullification is how well these efforts work. Certainly, the marijuana movement needs to be cited as a success for this method noncompliance. Today, 53% of the country is living in states that are defying federal law. And they’re getting away with it too. While the Bush and Obama administrations really ramped up enforcement activity (15x spending and 15x more enforcement actions since 2002), the number of people defying the feds never goes down, it only keeps increasing. See the statistics behind this view HERE.
A more powerful example, in my opinion, is to hear it from the proverbial “horse’s mouth.” That is, the people who personally experienced the effectiveness of such measures.
Who might that be?
The best place to start is South Carolina, December 24, 1860. From their official statement, “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union.”
The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the [Fugitive Slave Acts] or render useless any attempt to execute them...
Each of those states listed passed “Personal Liberty Laws” to thwart federal slave laws. A vast majority of those laws were “simply noncooperation” laws. But yet, they were so effective that South Carolina saw them as nullifying or rendering useless federal acts. In other words, the bottom line is the same.
South Carolina wasn’t alone. Mississippi, Texas and Georgia said almost the same in their own documents explaining their reasons for secession.
The short version? Those who wanted federal laws enforced learned first hand how effective state noncompliance bills are. They render federal acts “useless.”
Today and Going Forward
While I often refer to marijuana states and nullification, that’s not the only thing happening. It’s just the most effective so far. This really can and should be applied to virtually anything the federal government does (a vast majority of which is unconstitutional in the first place). More and more people are starting to see how it can be applied across the spectrum and laws are being considered and passed to protect the 2nd Amendment, frustrate “indefinite detention,” and more.
But that doesn’t mean there aren’t other ways to approach things. I count 6 ways to nullify which you can read about here. And yes, physical interposition is one of them. While that hasn’t been used effectively too often in history, it can work as well.
What’s most important, though, is advancing liberty. And libertarians, tenthers, nullifiers of all stripes – should never limit themselves to just one method or another. Personally, I think we’re at a stage where noncompliance is the most effective. I agree with the method proposed by Hans-Herman Hoppe:
“Without local enforcement, by compliant local authorities, the will of the central government is not much more than hot air.”
I’ll call it nullification. You call it something else.
The most important thing, of course, is not what words people use. Personally, I don’t care if someone calls what we’re seeing today the nullification movement or the Easter Bunny movement.
Like Matthew Moyer wrote on Ben Swann’s Facebook page, “These nullifications are also setting the precedent for further nullification of a wide swath of Federal abuses. The snowball is rolling.”
What matters to me is getting government power off my back and yours. And when the end result is federal “hot air” it’s a win for all of us who love liberty.
Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter - @michaelboldin, on LinkedIn, and on Facebook.