Monday, February 1, 2010

Nullification: The Practical vs. the Moral

Last Friday's post on Glenn Beck drew some defense of his position on the grounds of nullification. I didn't specifically address nullification in that post, but my comments certainly had implications on the issue. Since the individual defending nullification cited the Tenth Amendment Center, I will quote from their web site:

Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.

Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights by acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.

I can certainly understand how this might appeal to individuals who believe that the federal government is out of control. Nullification seems to be a way for citizens to reign in Congress. But is it?

Consider the first sentence in the quote above: "Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional." "Deemed to be unconstitutional" by what standard? No answer is offered.

In recent years, much has been made of the difference between red states and blue states, between die-hard conservative states and die-hard Leftist states. These differences make it pretty clear that what is considered constitutional in some states is "deemed to be unconstitutional" in other states. Some states may nullify a particular federal law while other states don't. Which means, there really isn't any federal law.

The individual who defended nullification argued that the marketplace would ultimately motivate states to nullify unconstitutional laws and compete to attract businesses and residents with pro-freedom policies. Again, I can understand why this might seem appealing.

But the fact is, states (and cities) compete today to attract business. And they certainly don't do it by moving in a pro-freedom direction.

Both Houston and Texas serve as excellent examples. Both are relatively pro-business and there is no state or city income tax. The economy of both the state and the city has fared well during the recession. To any honest observer, the economic success of the city and the state is a consequence of the greater freedom enjoyed. Yet, both continually act to restrict that freedom and enact more controls and regulations.

If it were true that the marketplace would motivate cities and states to adopt more pro-freedom policies, then why are two of the freest political entities in the nation moving in the opposite direction? Both Houston and Texas have been clearly winning the economic battle, yet they are abandoning the policies that made that victory possible. And why haven't "losing" states like Michigan and California abandoned their destructive policies?

My commenter argued that the "losers" are subsidized by the federal government, and thus have no motivation to change their ways. But this flies in the face of his own argument. The citizens of Michigan and California are burdened with outrageous taxation, decreasing services, and stagnant economies. Even if the federal government is subsidizing some of this outrage, it is not, and cannot, alleviate all of the self-imposed misery. The fact is, the citizens of those states wanted all of the entitlements, controls on business, and other "perks" of big government.

Further, if competition between states will lead to greater freedom, then why has every state enacted more controls and regulations? The states have been competing since their inception, and yet that hasn't stopped them from becoming increasingly tyrannical.

Further still, the practical benefits of freedom are abundantly clear, yet most of the world has moved away from freedom. Why? And why should we believe that the demonstration of a few states will be any more convincing that the demonstration of the United States during the 19th century? The fact is, it won't convince anyone, because practical arguments are seldom convincing. The reason is because the issue isn't practicality; the issue is morality.

In Friday's post I pointed out that Glenn Beck was supportive of the right of citizens of a state to vote themselves universal health care, or free cars, or anything else "the people" wanted. In principle, he isn't opposed to government force compelling some individuals to sacrifice for the alleged benefit of others.

Similarly, my commenter stated "that people in certain states have the right to tax themselves into oblivion if that's what they want." In principle, he isn't opposed to government force compelling some individuals to sacrifice for the alleged benefit of others.

Forcing some individuals to sacrifice for the alleged benefit of others is precisely what the federal government has been doing. Glenn Beck and advocates of nullification are not opposed to forced sacrifice, they just want the states dictating the nature of the sacrifice. They just want the citizens of a state to determine the victims and the victimizers, rather than the federal government.

Life does not require sacrifice--neither forced nor voluntary. Until that is understood, individual rights cannot be protected. Until the morality of rational egoism is embraced, the only debate will be the name of our masters.


Steve D said...

“All that does is give us a choice of poison.”

I would argue that there is some practical advantage of a choice of poisons if some of them are somewhat less toxic than others. Choosing the less toxic or slowest acting poison may provide you time to find an antidote.

Of course if you do not find an antidote then the final result will be the same.

Nullification seems to be at best a procedural means to provide another check or balance. It may be of use in some specific cases but it can hardly substitute for a the right ideology. You are right that the market place on its own cannot hold off the torrent of freedom-denying rules and regulations propagated by state and federal governments alike.

“why haven't "losing" states like Michigan and California abandoned their destructive policies?” The answer is as you imply. They haven’t abandoned these policies because they think they are right. They get to feel morally superior to the other states that haven’t.

It's also an issue of degree. Competition may actually slow the descent into tyranny although it certainly cannot stop it.

This leads to an interesting question, though. Given a rational philosophy, do you see any need for more than one level of government in a free society? It would seem to me that given the proper constitutional constraints on the government keeping to its sole purpose of protecting rights, state and local governments would be superfluous.

Regarding the commenter to the previous post, no one has the moral right to tax anyone into oblivion except perhaps themselves. The commenter could be talking about legal right though which I suppose may depend upon the state constitution. (Since rights are defined by morality I am not sure if the term legal right has a meaning when the right in question doesn't correspond to a moral right).

Brian Phillips said...

Steve-- Good comments.

To answer your question about the need for state and local governments, I can certainly see a need for them, though I haven't given that issue much thought.

Broadly speaking, the federal government would provide the military, while state/ local governments would provide the police and courts. (There would still need to be some federal courts.) That is, there would be a division of labor.

My initial thought is that the federal government would establish the principles of protecting rights, and the state/ local governments would apply those principles to the concretes.

For example, property rights are the practical implementation of individual rights. The federal government would establish the principles of ownership, and the state/ local governments would apply those principles to the specifics within their jurisdictions.

Steve D said...

Thank you take the time to respond to my comments. Although I have only been reading it for a short time you have a very interesting blog with a lot of very useful and insightful posts.

I think you are right that the local/state and federal division of labor would be an efficient way to organize government, although I am not sure that it would be the only way that would work. I guess that the state and federal constitutions would have to be in accord with each other and both need to be specifically designed only for the protection of our rights. I am not sure how well the present state constitutions do in this regard.

Given these conditions and a prevailing philosophy of freedom having the two levels of governments might actually provide an additional level of protection. I can’t see a reason why we would necessarily need three governments though (police perhaps?) and in any event if the government must be voluntarily funded it makes sense to make it as small as possible. It should be small physically (libertarian sense) as well strictly limited to the protection of rights (objectivist principle).

Brian Phillips said...

Steve--I agree with most of your comments. However, the size of government is not an issue. Government needs to be whatever size is necessary to protect our rights. It may be small, or it may be big. It would certainly be smaller than it is today. The important thing is that it be limited.

Sir Nicholas said...

I think that's what Steve said.