Nullification and Pie

Tenth Amendment Center: Constitutional Conversation

Me. With pie.

I like pie.

Strike that. I absolutely love pie. I consider “bad pie” to be an oxymoron. But, anytime I’ve ever tried to eat an entire pie in one sitting (yes, this has happened more than once), I’ve had some negative results.

Because of this, I’ll generally just eat a single slice. Ok, two. Maybe three. But that’s pushing it. Sometimes, if I’m at my favorite pie shop, I’ll get an extra one. For later.

When working for liberty, I find myself taking the same approach. I love the whole pie of liberty. If I could have it all at once, I’d definitely go for it. Generally, though, I’ve found that taking it once piece at a time tends to be a far more successful approach, one that’s likely to be more long-lasting.

REVERSING THE TREND

When I founded the Tenth Amendment Center back in 2006, I never even conceived of much more than a little bite. What originally started out as a single-person blog with the goals of reaching just one person with each post has grown into a national movement.

Lately, many liberty-oriented political activists and organizations have started getting more and more involved in the nullification movement. Certainly, Ron Paul has had some influence on this, as many people involved in his grassroots political effort watched him on the campaign trail speak favorably of nullification. And even quite strongly in favor during a debate.

When Ron Paul says that nullification would “reverse the trend and stop the usurpation of all the powers and privileges from the states to the federal government,” I would suspect that a libertarian, political activist or not, would likely take notice.

I can’t think of a stronger plea for libertarians to put their energy into nullification than that statement from the man who brought the principles of liberty to the mainstream.

Think about that. Nullification isn’t just an interesting idea, it’s a method that Ron Paul has endorsed as a method to “stop the usurpation of power.” That’s serious business.

DEFINITIONS

But that leaves a question. What IS nullification? When Thomas Jefferson called it the rightful remedy, he didn’t define it. And if you were to look at a dictionary from that time, you’d get a pretty broad definition for nullify: To annul; to make void.

On the word nullification, Dictionary.com is far more specific. The word is defined as “the failure or refusal of a U.S. state to aid in enforcement of federal laws within its limits, especially on Constitutional grounds.”

Personally, I think that definition is far too narrow.

Tom Woods’ indispensable LibertyClassroom.com informs us that nullification is when states refuse to enforce an unconstitutional law, but he also points out that outright resistance can be a part of the process too.

At the Tenth Amendment Center, we’re very “big tent” in our thinking about what nullification is. We’ve defined it like this: “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.”

NULLIFICATION: IN PRACTICE

In essence, the goal of nullification is to stop a particular act from taking effect. That means nullification can take many forms. These are what I see as the main categories:

1. Authorized public defiance. State medical marijuana laws fit in this category. The laws authorize people to use a plant that’s illegal to the feds. Licenses are generally issued by the state to operate those businesses. On their own, state and local police don’t harass people following those laws, but do assist the feds when called upon for enforcement. Over time, even with that “cooperation” happening, the effects become greater. In Los Angeles alone, for example, there are currently over 1000 marijuana stores in operation today. A few get busted every month, most open back up within 24 hours, but 98% or greater are never even bothered.

2. State and local noncompliance. By 1928, 28 states had stopped funding for alcohol prohibition enforcement and local police were sporadic in their enforcement efforts. In a 1925 address to Congress, Maryland’s Senator Bruce stated, “national prohibition went into legal effect upward of six years ago, but it can be truly said that, except to a highly qualified extent, it has never gone into practical effect at all.”

Similar actions are being taken today. Washington State and Colorado will be stopping enforcement on marijuana prohibition. And states and local communities are considering bills to refuse cooperation with the “indefinite detention” provisions of the NDAA, or federal gun control measures.

3. State and local interposition. Agents of the state would “stand between” you and the federal government to protect you from violations of your rights. In general, this would include criminal charges for federal agents attempting to enforce a law being nullified. In response to the fugitive slave act of 1850, a number of states passed laws to do just that. They were quite effective too.

And two bonus categories:

Jury nullification. This is when a jury prevents a conviction even if a “law” was broken

Individual nullification. Every time you speed on a highway without punishment is a good example. The more widespread the individual nullification actions, the harder that enforcement will become, potentially encouraging more individuals to do the same.

MISINFORMED

Oddly enough, lately some libertarians who are grassroots leaders have been making the claim that calling on states to arrest federal agents is the only act that qualifies as nullification. They attack the Tenth Amendment Center like we’re some kind of neo-con sham organization, telling their supporters that supporting other forms of nullification is a fake, or “political cover for politicians.”

Or, they claim that anything but an attempt to slap federal agents with criminal charges is “watered down” or “meaningless.”

One group has gone so far as to publicly state they will actually oppose anything requiring noncompliance and “fight to keep it from being signed into law.”

GOOD AND EFFECTIVE

Ron Paul seems to be a big supporter of noncompliance. In 2008, he said the following:

“Rosa Parks is one of my heroes, Martin Luther King is a hero — because they practiced the libertarian principle of civil disobedience, nonviolence.”

I will never understand why anyone who actively campaigned for a man who considered Rosa Parks a hero would view saying “NO!” as political cover, meaningless, or something to oppose. But I digress.

Ron Paul has also pointed out that state marijuana laws are, in fact, an act of nullification. But they don’t even rise to the level of noncompliance. And California has never threatened to arrest federal agents. But it’s still nullification.

And it’s not just Ron Paul. Judge Andrew Napolitano recently made the observation that the federal government simply doesn’t have the manpower to enforce all its laws. And because of this, noncompliance has the ability to make federal laws “nearly impossible to enforce.”

BACK TO PIE

Holding the view that the only way to nullify is via option 3 is not just incorrect, it’s an attempt to eat an entire pie in one sitting. In California in 1996, no one would’ve gone for that option (and they still aren’t).

If they hadn’t taken option 1 as a step forward – a piece of pie – Ron Paul may not have been talking about that as nullification with Judge Nap in 2011.

I understand that people who value and love liberty are pretty sick and tired of it being under constant attack. What sane person wouldn’t be?

But opponents of liberty have spent decades upon decades proving that taking one piece at a time is an extremely effective method. I sure would love to pig out on an entire banana cream pie of liberty in one sitting, but I can guarantee you that’s not going to happen. And on top of it, I agree with Murray Rothbard who warned against “falling prey” to such “short-run optimism”:

For short-run optimism, being unrealistic, leads straightway to disillusion and then to long-run pessimism.

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Rothbard also offered advice:

For the libertarian, the main task of the present epoch is to cast off his needless and debilitating pessimism, to set his sights on long-run victory and to set about the road to its attainment.

In the end, nullification really comes from the individual who gains courage as the movement expands, and defies the government in more and more ways over time. Mass noncompliance renders federal laws toothless.

I believe our long-run victory will come one individual and one delicious piece of pie at a time.

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