The Cato Institute on Nullification

I enjoy much of the work done by the Cato Institute. I have recently been able to visit their facility and enjoy lectures by experts in different policy areas and the classical liberal tradition. However, one wonders if being too close to the Potomac fogs one’s thinking when it comes to federalism and the 10th Amendment.

In a policy analysis called “How States Talk Back to Washington and Strengthen American Federalism,” John Dinan excoriates the legitimacy of state nullification of unconstitutional federal laws and tells states how they ought to properly grovel before the federal government. The paper could have just as been easily been entitled, “How States Can Beg Washington and Be Properly Subordinate.”

To be clear, Dinan is specific in what he considers nullification: a state declaring a federal law null and void. Organizations like the Tenth Amendment Center tend to be more expansive in how they use the term, including things like state noncompliance with unconstitutional federal laws, such as Missouri not allowing state and local law enforcement assist federal agencies in enforcing federal gun laws, or outright contradictory laws, such as marijuana legalization in Washington and Colorado. Dinan considers these latter measures not to be nullification, but legitimate uses of state power. He hopes that they will eventually lead to disputes in state and federal law being “resolved” in federal courts. Anyone who has any familiarity with federal judges and values individual freedom ought to be very skeptical that giving the federal government a monopoly in deciding disputes between itself and the states will result in a net increase in freedom.

Just consider the case of Gonzalez v. Raich (2005), where the Supreme Court decided that a woman growing medicinal marijuana for her own consumption with a license in California could be regulated by the federal government under the Commerce Clause. That is, an act that fully performed within one’s own home and involves no transactions, can be regulated by the federal government as interstate commerce. Regardless of what one thinks of the use of marijuana, one should realize that such nonsensical, Orwellian stretching of terminology in order to maximize the power of the federal government is not good for freedom or the 10th Amendment. We should put no faith in the federal courts to restrain the federal government. And yet, this is what John Dinan and folks at the Heritage Foundation would have us do.

Putting aside the historical arguments about James Madison, Thomas Jefferson, and the constitutionality of nullification, I find Dinan’s argument to be internally inconsistent. He believes that the constitutional method of deciding what is constitutional is through judicial review – giving the federal government the monopoly on constitutional interpretation. However, “judicial review” appears nowhere in the text of the US Constitution, nor does the Constitution grant a monopoly to the federal courts to decide what’s constitutional for the federal government to do. Rather, judicial review came about through practice; the US Constitution doesn’t really explicitly state what remedies are to be pursued when the federal government claims powers not delegated to it. In this sense, I don’t see why, when the federal government abuses the Constitution to such an extent that the republic is essentially unrecognizable, that the practice of nullification would be any less legitimate than judicial review.

Ultimately, I don’t know why supposed advocates of freedom are so quick to dismiss nullification. They argue that it’s unconstitutional, and let’s assume for the sake of argument that it is. My question is, “Why do you support the Constitution?” I would assume because it is meant to preserve freedom. But, clearly, the Constitution as the Supreme Court has interpreted it has become a justification for the US mega-state. For people like Dinan and those at Heritage, the Constitution has then morphed from a means to an end. As I argue at the Tenth Amendment Center blog, if we support the Constitution, we should also embrace the most promising means of defending it: nullification.

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American Revolution or American Secession?

I have touched on this theme before, but it seems especially important on July 4th to remember that the American War for Independence was not a revolution at all. It did not seek to overthrow the British Crown, nor to refashion society altogether. Life in America was expected to go on as before, but under different, self-chosen leaders.

There is only one proper name for this kind of action – secession. Unpopular and foreign as the idea is to some, our Founding Fathers were first and foremost secessionists. Donald Livingston has even argued that secession is “a specifically American principle.” Obviously, there is nothing specifically American about the principle of revolution, and the most significant revolutions in recent history have turned into blood-soaked nightmares.

With the true meaning and significance of July 4th, 1776 in mind, I hope Idahoans understand that, should rule by Washington, D.C. become as intolerable as rule by the British, a peaceful act of secession would be the quintessentially American thing to do.

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Self-Reliance as the Envy of the Masses

Robert Bergdahl

It would be too simple to write off the reactions to Robert Bergdahl’s Arabic- and Pashto-laden speech – to say nothing of his beard – as merely so much anti-Muslim bigotry in America. Bill O’Reilly, for example, was obviously upset because Robert Bergdahl’s presentation could conceivably – somehow, somewhere, by America’s lowest common denominator – be construed as weakness on the part of the federal government, which is why he said “[Bergdahl’s] appearance was totally inappropriate.” Accusing O’Reilly of bigotry does absolutely nothing to further a real understanding of his influential views, which are dominated by a desire to implement large-scale national solutions to nearly every problem.

Mass media ignorance aside, Robert Bergdahl is obviously the kind of man who doesn’t lie down and accept that something awful is happening – he acts. Studying two languages while establishing numerous contacts on the other side of the planet is the real-world equivalent of Liam Neeson in Taken; it’s also proof of a level of devotion to which every father aspires. His unglamorous willingness to “look Muslim” and say whatever might keep his son alive shows that he loves his family more than the idea of “killing foreigners whom the State has designated the enemy.” As Will Grigg has pointed out, such commitments constitute “an unforgivable heresy.”

Perhaps more offensive to the masses than his failure to worship the unitary American nation-state, however, is Bergdahl’s failure to let government “experts” take the lead in returning his son; Robert was personally involved with “the Qatar connection” that ultimately led to his son’s release. This elevated level of self-reliance – which naturally carries with it some eccentricities – is still quite common in Idaho. But much of America has lost it, and to them Robert Bergdahl is a conspicuous reminder of their dependence upon the unsustainable nanny-state that is increasingly unable to meet their expectations.

As always, those who willingly submit to paternalistic government are above all envious of their more courageous peers. It seems to me that this envy is the real driving force behind the alternately vapid and vicious condemnations of the Bergdahls. How else can one make sense of the simultaneous claims that Bowe and Robert are individualists who “distance [themselves] from institutions” and that they sympathize with cults of religious violence?

Sadly, coherence is of no concern when there’s some imaginary darkness to defeat, and envy has a funny way of making its object appear pitch black.

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TNP Podcast 6: Cliven Bundy, Public Lands, and Militia

Jackson and I discuss the issues surrounding Nevada Rancher Cliven Bundy and his dispute with the Bureau of Land Management. We see this as bigger than a rancher who doesn’t want to pay grazing fees. Does the federal government have a legitimate claim to an ownership of huge portions of land west of the Mississippi? Why would militia members from out of state feel the need to come to Bundy’s defense? Have a listen and tell us what you think. [display_podcast]

Music Credit: Chance McCoy and the Appalachian String Band

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Are Term Limits an Admission that Democracy is Flawed?

By Tate Fegley and Jackson B. Archer

To many people, the re-election of many US Senators and Congressmen is a mystery. How could it possibly be the case that, with approval ratings nearly in the single digits, incumbents maintain control over their seats the vast majority of the time? What’s going on here? Isn’t democracy supposed to make sure “the will of the people” is being done?

Grade school presentations of democracy lead us to believe that allowing the people to vote on what politicians are in office ensures that government is responsive to their needs. But with such low congressional approval ratings, it would appear that such a naïve view of democracy isn’t entirely accurate, at least not on such a large scale as the US nation-state. Perhaps what we have here is a “democracy failure” that needs to be corrected by intervention. Continue reading

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Localism, Federalism, and the 14th Amendment

I recently wrote a guest post for an Arizona-based website called Western Free Press. The proprietor there shares many of the ideals of The New Polis and has graciously shared his growing platform so that they may have a wider audience.

What I chose to write about is the complicated issue of the 14th Amendment to the US Constitution and whether incorporating the Bill of Rights’ restrictions on the powers of the US Congress (or perhaps I should say ‘clarifications’ as Jefferson would argue that the power to abridge the freedom of speech, for example, was never enumerated to the federal government in the first place) to the state and local governments has increased or decreased individual liberty. I argue that the application of the 14th Amendment has unambiguously expanded the power of the federal government to the detriment of both localism and federalism. Also questionable in this shift of the balance of power between the states and the federal government is that while the federal government is seen as having the ability to overturn the decisions made by state and local governments, the common position is that state and local governments have no corresponding power to overturn the abuses of the federal government (even a Cato scholar claims that state nullification is “discredited” and “a nonstarter in the 21st century.” I will address these claims in a future post). Even so, many friends of liberty see this check on state governments an unambiguously good thing for freedom. What are we to do if the state governments violate individual rights? they ask.

One of the best analogies for this, I think, is whether one would be comfortable with the UN intervening and overturning the unconstitutional decisions of the US government. I would hope the answer for those who value individual liberty would be a resounding “No!” as even if the UN made the right decision in a few cases, it is generally anti-liberty and anti-localism. Furthermore, the times where it is wrong would be much more destructive, just as when a bad policy is made at the national level rather than the state level. It is harder to escape or mount a political battle against it. Thus, we should be wary of large, unaccountable powers that are long distances away having the ability to overturn governments that are more local, even if they may be right sometimes. The question isn’t which level of government tends to be right, but rather which one is more dangerous when it is wrong.

So, I request that you check out that post here and let me know what you think.

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Micron, Money, and Morals

Earlier this month, a federal court approved a $311 million dollar settlement against DRAM manufacturers on behalf of consumers. Boise-based Micron Technology, one of the firms involved, will pay an exorbitant $66.7 million to the “victims.” The crime? “[E]ngaging in unlawful anti-competitive practices to inflate prices,” according to The Associated Press. Sounds simple enough; the companies conspired to rip-off the public and will be forced to pay it back. Who could argue with that?

As with most things in an age where so much is beyond the scope of what can be perceived and understood locally, there is more to the story. From the AP report we learn not that a settlement was reached, but that the court ruling means “consumers can start filing claims” – the actual settlement took place in 2007. That means it took the court seven years just to figure out how consumers could get the money Micron (and others) already agreed to pay. The answer? Anyone can simply ask for free money! Really – it took them seven years to come up with that; the settlement site explains:

You don’t need any documentation to file your claim. So don’t let that stop you… You can still get paid even if you don’t have any documentation.

The likelihood of any actual justice being served under these conditions is slimmer than Idaho’s starving wolves.

Attorney General Lawrence Wasden

But it gets sillier. The AP story doesn’t mention that the antitrust violations took place between 1998 and 2002, and the minimum “recovery” amount is $10. So the government agents who brought the suit – Idaho’s Attorney General Lawrence Wasden was one of them – have dedicated countless hours and millions of dollars in lawyers fees to returning $10 taken from consumers fifteen years ago. Of course, no one was forced to buy any DRAM and certainly most had no idea they were paying too much at the time. But even granting that illegal activity took place, have Americans really become so petty and childish that fifteen years isn’t long enough to get over losing a few bucks?

Antitrust laws are a lot like invasions of Iraq – a great idea until you examine the results.

The cost to Micron is nearly $67 million, but the actual impact to Idaho will be much greater. How many Treasure Valley jobs could have been saved or created by Micron with all that money? When Micron agreed to the settlement in 2007, Idaho’s unemployment rate was below 3%. (After housing went bust, it nearly tripled.) Perhaps at the time Attorney General Wasden thought little harm could be done.

And perhaps this is another lesson in communities paying the price for a government too expansive to be genuinely representative.

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