Nullification Nullifies Freedom

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The advocates of “states’ rights” have long pushed the idea of nullification–the doctrine that a state can declare a federal law null and void within that state. (Sadly, even Thomas Jefferson endorsed the idea.) More recently, many conservatives and Libertarians have been pushing the idea of jury nullification.

The doctrine of nullification is put forth as a means to reign in an out-of-control government, and that goal is certainly understandable. Its advocates claim that nullification will protect individual liberty. However, nullification, whether by a state or a jury, simply substitutes one form of tyranny for another.

In both instances, nullification is a rejection of the rule of law and a call for unlimited majority rule.

As an example, Texas Governor Rick Perry, an advocate of “states’ rights,” has said, “I believe the Constitution does not empower the federal [government] to override state laws without restraint.” Ann Coulter recently wrote, “The Constitution mostly places limits on what the federal government can do. Only in a few instances does it restrict what states can do.” In other words, according to the “states’ rights” advocates, the states should be free to do whatever they damn well please, including negating federal laws.

According to Perry and Coulter, if a state wishes to prohibit cowboy boots or blond hair, then it should be free to do so without interference from the federal government. And if Congress passed legislation protecting an individual’s right to wear Tony Lamas or bleach her hair, each state should also have a right to nullify that law. After all, the Constitution says nothing about a right to wear the foot covering of your choice or sport a particular hair color. According to the advocates of nullification, if the Constitution does not speak to a particular issue, then it is fair game for the states.

If this weren’t bad enough, the advocates of jury nullification argue that even state and local laws can be ignored by a jury. Wikipedia describes jury nullification as:

a constitutional doctrine which allows juries to acquit defendants who are technically guilty, but who don’t deserve punishment. It occurs in a trial when a jury reaches a verdict contrary to the judge’s instructions as to the law. [bold added]

In other words, it really doesn’t matter what the law is. A jury can reach a verdict (or punishment) based on its sense of justice.

The Wikipedia description speaks to acquittal, but if a jury can ignore the law, then a jury can ignore the law. It can also convict an individual who is “technically innocent.” If a jury can ignore the law, “technical” guilt or innocence is irrelevant. An individual’s conviction, acquittal, or punishment is entirely in the hands of the jury’s sense of justice. Neither the law nor the facts will matter. If the jury dislikes the defendant because he is black, or gay, or “too rich,” or advocates the “wrong” ideas, or anything else, the jury can decide accordingly.

The advocates of nullification argue that some groups–the majority in a state or a jury–can ignore the law.

I can certainly understand the desire to nullify many laws. If I had my way, I’d nullify 90 percent (or more) of them. I would declare them null and void in my life, and proceed to live according to my own judgment. But if I wish to live in a civilized society, I cannot simply ignore laws with which I disagree. If I have such a “right,” then so does everyone else, and that is anarchy. If my group can ignore the law, then so does every other group, and that is anarchy.

Anarchy is what nullification leads to. If the law can be ignored because some group “nullifies” it, then there is no end to the number of groups that could declare laws null and void, and then act accordingly.

The solution to bad laws is not nullification. The solution is better ideas. Bad ideas lead to bad laws. If we desire a nation in which individual liberty is protected, then we must fight for the ideas upon which freedom is founded. We must defend the moral right of each individual to his own life, his own liberty, and the pursuit of his own happiness. And we must reject the idea that the state, the community, or the majority has a moral claim on the lives of individuals.

The danger of “states’ rights”

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As the race for the White House heats up, we will likely hear more talk about “states’ rights.” Rick Perry, Mitt Romney, Sarah Palin, and many other conservatives have voiced support for “states’ rights.” The concept is often presented as an antidote to growing federal control over the economy and our lives. But is it an antidote, or is it simply another form of poison?

There are two aspects to “states’ rights”: the “right” of each state to establish laws independent of Washington and the “right” of each state to nullify a federal law. In principle, these are the same thing.

For example, advocates of “states’ rights” hold that each state should be allowed to legalize abortion or ban it, permit gay marriage or prohibit it, restrict gun ownership or not. If Texans want to ignore the Clean Air Act, they have a “right” to declare the law null and void within the borders of the state. In other words, the citizens of each state should be allowed to determine what they will permit and what they will prohibit. It is, according to the advocates of “states’ rights,” wrong if Barack Obama mandates universal health care across the nation, but it is perfectly proper if Mitt Romney does so within Massachusetts.

At root, “states’ rights” holds that the citizens of a state are not to be limited by the principles of individual rights. As long as the majority within a state support a policy or program, anything goes. This is not a defense of individual liberty, but its negation.

Individual rights recognize and protect an individual’s moral right to act according to his own judgment, as long as he respects the mutual rights of others. “States’ rights” holds that the rights of individuals may be violated whenever the majority chooses to do so. The Founding Fathers rejected this idea. For example, James Madison wrote:

There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong.

The Founders were opposed to tyranny in any form, whether manifested in a King or manifested in an uncontrolled majority.

Certainly, the unprecedented power grabs emanating from Washington should be opposed. But granting more power to the state governments is not the solution. Turning America into fifty tyrannies will not achieve free markets and individual liberty.

Defenders of freedom must reject the entire notion of “states’ rights” and instead embrace the principle of individual rights.