Tuesday, March 23, 2010

The Tyranny of Nullification

I have previously written that nullification--a state declaring a particular federal law unconstitutional and thereby inapplicable within that state--would ultimately lead to tyranny. But we do not need to rely solely on theoretic arguments to see the truth of my claim. We can look to history to see the results of nullification.

In 1833 the U.S. Supreme Court decided the case of Barron v. Baltimore. According to Wikipedia:
John Barron co-owned a profitable wharf in the Baltimore harbor. He sued the mayor of Baltimore for damages, claiming that when the city had diverted the flow of streams while engaging in street construction, it had created mounds of sand and earth near his wharf making the water too shallow for most vessels. The trial court awarded Barron damages of $4,500, but the appellate court reversed the ruling.
In a unanimous decision, the court held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." In short, unless the Constitution specifically stated an application to the states, the states were free to act contrary to its provisions.

In practical terms, this is precisely what advocates of nullification desire. They call for the states to unilaterally choose which federal laws they will honor and which they will not. And if this applies to statutes, why should it not also apply to the supreme law of the land--the Constitution? Indeed, this was the result in Barron v. Baltimore.

For John Barron, the actions of the city destroyed his business and he received no compensation for it. The court ruled: "We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the states." In other words, the states can do whatever they choose, with no restrictions or constraints.

In theory and in practice this is the end result of nullification. For example, if the majority of Ohioans wish to nullify the First Amendment and institute censorship, the advocates of nullification have no basis for complaint. If the majority of Floridians wish to confiscate all guns within the state, the advocates of nullification must approve. If Texans want to outlaw trial by jury, or Utahans want to mandate the Mormon Church as the official state religion, or Alabamans want to prohibit blacks from voting, according to the advocates of nullification, such is the "right" of the citizens of those states.

Nullification is not about protecting individual rights; it is about unleashing the "will of the people". It is about a tyranny of the masses, in which the majority may do anything it pleases simply because it is the majority. (Interestingly, while nullification is endorsed primarily by conservatives, Leftists also argue that the "will of the people" should reign supreme, unrestricted by such things as the Constitution, principles, or individual rights.)

If the advocates of nullification truly wish to control the ever expanding powers of the federal government, then they must recognize and defend individual rights. They must declare that the rights of the individual may not be violated by any government--federal, state, or local. Anything less is an endorsement of tyranny.


Burgess Laughlin said...

Thank you! Once again you have shown that conservative statism is not an answer to "progressive" statism.

Brian Phillips said...

Thanks. Sometimes it is rather scary to think that those are the only two alternatives most people know.

Mr. Moderate said...

I think you misunderstood the nature of the ruling at the time it was made. The case you cited only said that there was no Federal cause of action for the plaintiff. That is as it should be, as the powers of the Federal Government are restricted to those enumerated in the Constitution, with all other powers reserved to the individual states and the people. The ultimate result of that was that, prior to the 14th Amendment, States could pretty much do as they desired. There was no restriction against a State having an official religion or taking property without compensation. Once the 14th Amendment was passed, some of the Bill of Rights and other amendments were interpreted to apply to the States.

This is not to say that your argument has no merit, just that you chose a poor example for illustration.

Brian Phillips said...

Mr. Moderate,
I think you misunderstood the point of my example. As you note, prior to the 14th Amendment the states could do as they wanted. This is precisely the same thing that advocates of nullification want.

Whether the states are not subject to the Constitution and federal law by a Supreme Court ruling or by their own unilateral declarations, the result is the same. That was my point.

C.W. said...

Seeing another state beginning to pass anti-health care legislation brought me back to this topic and I had a thought. I found your argument concerning nullification to be presuasive, and I am not changing my mind. One thing that makes the health care issue a little cloudy, and it may be the perspective of the states, is that insurance, including health insurance, has been the responsibility of state law. The health care bill, to my knowledge, has not actually changed that responsibility, therefore, at the very least, there is a conflict that needs to be resolved. Having been a licenced life and health insurance agent for 20 years, I do know of a single federal regualtion or law that I had to consider in my practice. This law is a break in that history.

Brian Phillips said...

That is an interesting point that I hadn't considered. It might explain why the states are upset--they are losing power to Washington. I have heard an AG or two mention that their motivation is to protect individual rights, which surprised me. I now wonder how sincere that claim is.