Wednesday, August 18, 2010

Lemonade and Nullification

Recently yet another group of bureaucrats tried to shut down yet another lemonade stand by yet another child trying to raise pocket money. Predictably people thought this quite absurd, and the county backed down in this case with Oregon County Chairman Jeff Cogen issuing an apology for the incident.

This parallels an older case where some students spontaneously broke into song at the Lincoln Memorial, singing the national anthem and were told by the park police that it wasn’t allowed because it was a demonstration. Bystanders supported the students and joined in the song in spite of a rule being broke.

Although it can easily be argued that the park police and the health department bureaucrats were wrong to enforce the law the way it was written, the actions by the observers and onlookers was most curious. Most people do not know of or agree with the concept of nullification, and yet in both cases they were advocating it.

Libertarians have long advocated jury nullification and judicial nullification. It is not as often discussed, although it is agreed with when police nullification is brought up as well. But just as libertarians are the only ones to agree with the concept of jury nullification, they are also the only ones to agree with the concept of police nullification.

Many people are unjustifiably afraid of nullification, except for judicial nullification. Perhaps the reason that they are not afraid of judicial nullification is because judges are in a special position of authority, all the credentials that the average person lacks. When a police officer, or worse a jury member, nullifies a law that puts decision making power several layers downward and out of the hands of the elite.

Of course that is not the argument made. People argue against nullification on the grounds that they do not want juries and police simply making up laws, completely ignoring that nullifying a law is the exact opposite of making up a law. They also argue that the principle of nullification would enable corrupt police to fail to enforce the law on their friends, forgetting that that already happens.

Those who support not enforcing the law on the child selling lemonade are advocating nullification, whether they know it or not. Those who oppose nullification should support full enforcement of the law on children selling lemonade.

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