Columnist on nullification • Greg Morin
Jury nullification is a right of the sovereign individual to exert their authority over that entity (government) whom they have created and granted limited authority to act on their behalf. Likewise, the states (acting on behalf of the sovereign individuals) created a federal government and granted to it some rights originally reserved by the states. ALL rights not specifically granted to it were reserved to the states or the people (10th Amendment). That means simply state nullification is a state right precisely because it is NOT mentioned in the constitution – anything not listed nor prohibited is by default a state right, not a federal right.
The mainstream media and the political elites condescendingly portray state nullification as some backwards invention of ignorant racists. Nothing could be further from the truth. They only betray their own ignorance of the historical, ethical, and philosophical validity of state nullification. Here are some of the common objections to state nullification:
“Didn’t the Civil War settle this?” If by “settle” you are suggesting murderous violence is a legitimate method of dispute resolution, then no. All the Civil War “settled” is the notion of an “indivisible” forced union – literally the state equivalent of “until death do us part” (as in “I’ll kill you if you leave”). If you are suggesting that because the north won that makes any northern practice legitimate and any southern practice illegitimate, then given the fact that the northern states used nullification to nullify the Fugitive Slave Laws that would I suppose only legitimize the practice of nullification.
“Ok, maybe nullification was used against slavery but it was also used to oppose civil rights laws, right?” True, but that is not so much an indictment of nullification as it is an indictment of democracy itself. Over the course of history democracies big and small have promoted laws inimical to civil rights. The “justness” of laws in a democracy do not scale with territorial area. If the bigger democracy is always justified in forcing its laws onto its smaller member states then one must conclude it would be wholly legitimate for a racist federal government to impose racist laws on non-racist member states. Democracy is the problem, not nullification.
“Doesn’t the Supremacy Clause (of the US Constitution) trump any notions of state nullification?” No, and in order to understand why one must read the WHOLE clause and not merely cherry-pick the parts they like. It states: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land…” The “made in pursuance thereof” is the operative phrase relative to nullification. Nullification is simply the right of a state to say such and such law has NOT been made in pursuance thereof THEREFORE it is illegitimate.
“Yes, but isn’t it up to the Supreme Court to decide if laws are constitutional?” It may do so through what could be called horizontal nullification (i.e. the checks and balance system that exists between the three branches). However only the sovereign people, acting through their proxy the states, have the final vertical nullification authority over all three branches. To suggest the federal government should be the sole and final arbiter of its own powers is an open invitation to abuse. The fact that the federal government has discovered so many new powers for itself only underscores the legitimacy of these concerns.
If you would like to learn more about state nullification please visit www.libertyclassroom.com/nullification/, or purchase “Nullification” by New York Times best-selling author and historian Tom Woods. And if you are tired of being spoon-fed an incomplete version of history by the state run public school system and main stream media and would like to learn the truth for yourself please visit Tom Wood’s www.learnrealhistory.com.
Greg Morin is a member of the Libertarian party and CEO of Seachem Laboratories located in Madison. Constructive comments are welcomed to this paper or at gregmorin.com
Printed in the March 14, 2013 edition