I’ve written a few of posts mentioning nullification: Tom Woods on NPR, Tom Woods’ article on anti-nullifiers, and challenging the notion that the Supreme Court ought to have a monopoly on Constitutional interpretation.
Tom Woods wrote the book on this subject and has FAQ.
But the first thing I would like to ask in today’s post is: “How much does it matter that nullification has a Constitutional or historical basis?” The more I think about it, I find that my answer is: “It matters only to the extent that people will accept its use as a method for decentralizing power.” If it were to be shown, beyond a doubt, that nullification is, in fact, unconstitutional, that wouldn’t matter one bit to me in terms of its legitimacy. I took no oath to uphold the Constitution; I was forced under it at birth.
It seems ridiculous that the same people who accept no limits on federal power are often the same ones who declare nullification unconstitutional. But most of what is considered “constitutional law” has nothing to do with the Constitution, but with legal precedents. For example, judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803). In the same way, why can’t states nullifying federal laws set a precedent? According to the anti-nullifiers’ own logic, nullification would have to be acceptable.
And we have several precedents of states doing just that. A recent example is of Washington and Colorado decriminalizing marijuana and Mark Thornton writes a fantastic article about it.
One particularly interesting point he makes is that, in doing this, Washington and Colorado are effectively nullifying a UN Law as well. He says,
In effect, the voters of Colorado and Washington have placed themselves and their states on equal legal footing with both national and international governments. This is important, because, if thanks to nullification, governments have to obtain acceptance, or at least acquiescence from subsidiary governments, rather than just imposing their dictates on them, they are more likely to act in a less threatening and harmful manner.