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.

Secession, or Jettison

When Bush was president, there were some hopeful signs on the subject of secession. It was when Bush was president that the Free State Project was initiated, and it was under President Bush that liberal pundits made their first, tentative explorations into the subjects of nullification and secession, subjects previously forbidden to liberals and progressives. The tentative progressive explorations all came to an abrupt halt when Obama was elected, of course, at which point conservatives started making the same explorations with regards to health care, explorations that were forbidden due to the war on terror.

But secession is not the only way to deal with irreconcilable differences between different states and regions of the country. Although there has been no noticeable exploration of this option, it should be possible to jettison a state that is more of a burden to the union than the rest of the states wish to bear.

This option is actually being discussed in the much looser federation known as the European Union, as Germans are, on average, quite displeased with the bailout of the Greek Government. Some talk about Greece withdrawing from the EU, some talk about Germany withdrawing from the EU, and some talk about kicking Greece out of the EU.

That last option could be applied to great effect in the United States.

California, for example, is a state in such severe financial disarray that it is actually in worse shape than Greece. It is practically inevitable that at some point the federal government will have to come in and rescue California from its massive structural deficits, and will have to do so more than once. Is it right that other states should have to shoulder that burden simply because California politicians are unable to resist giving the public employee union anything they desire?

Texas, where talk of secession was so notable that it made the news, is in much better shape financially. They are causing a controversy because they are getting unabashedly political in their choice of textbooks, and their decisions have an impact on the rest of the country. People in smaller states are quite displeased that their own textbook choices will be limited by manufacturers trying to please politicians in Texas.

There is no precedent for ejecting a state from the union, so every single action taken would be groundbreaking. It is possible that one could argue that under Article Five it is forbidden to eject a state on the grounds that doing so would deprive them of representation in the Senate. It is possible, but that is a weak argument given that the article is supposed to ensure that no state that is in the union lacks proper representation. Any state that is jettisoned is no longer a state.

The benefits to jettison can be immense. There is no way currently for people in one state to reject noxious politicians elected by another state. If jettison were implemented on, for example, Arizona’s new immigration bill, the result would mean the United States is permanently relieved from having John McCain taint the Senate any more.

Tenth Amendment Resolutions

Many states are passing state sovereignty resolutions. Some, usually considered more "blue", are passing resolutions legalizing marijuana, usually for medicinal purposes but sometimes going as far as outright legalization. Others, usually considered more "red", are passing resolutions exempting citizens of that state from the insurance mandate included in the health care "reform" recently passed.

The problem is that at this point these resolutions are symbolic. While these resolutions will be challenged in federal courts (at which point the federal government will likely rule in its own favor) these resolutions lack any enforcement mechanism. The only resolutions that have any actual impact are the ones that prohibit a state from participating in REAL ID or PASS ID on the grounds that the state simply refuses to spend the money to comply with federal standards.

What, in any of these resolutions, will stop the DEA for the ATF from enforcing federal law on the citizens of states allegedly protected by these tenth amendment resolutions? Based on the continuing arrests of medicinal marijuana patients in California, apparently nothing. These resolutions lack an enforcement mechanism.

A better resolution would not only nullify the federal law in question - it would mandate that the state and local police not cooperate under any circumstances with the federal agency corresponding to the law in question, up to including punishments for police that do so. An even better resolution would mandate that the police arrest and the district attorneys file charges against federal agents for violating the rights of citizens of the state, and forbid transfer of these federal agents into federal custody.

It is absolutely certain that the federal government will attempt to challenge these laws. The question is how effective that would be. Any state legislature that has the courage to pass a nullification resolution with an enforcement mechanism would also have the courage to refuse to hand over any federal DEA or ATF agents. To get these agents would require an armed assault on the state prison system. To arrest politicians who stand up to the federal government would also require an armed assault. Will the federal government go that far?

This is not without precedent though. The State of Massachusetts nullified the Fugitive Slave Act before the civil war. The Fugitive Slave Act said that anyone who kidnaps a runaway slave is protected from prosecution but anyone who protects a runaway slave would be tried for violating the act. The nullification act passed by Massachusetts reversed the Fugitive Slave Act so that anyone who kidnapped a runaway slave would be tried and anyone who protected a runaway slave would be protected.

It is impossible, absent calling out the military, for the federal government to enforce laws that the state absolutely refuses to enforce. That's why nullification works, and why a nullification act with an enforcement mechanism is necessary.