Following up on my post last week on jury nullification I would like to now delve into State Nullification.

Jury nullification is a right of the sovereign individual to exert their authority over that entity (government) whom they have created and granted limited authority to act on their behalf. Likewise, the states (acting on behalf of the sovereign individuals) created a federal government and granted to it some rights originally reserved by the states. ALL rights not specifically granted to it were reserved to the states or the people (10^th Amendment). That means simply state nullification is a state right precisely because it is NOT mentioned in the constitution – anything not listed nor prohibited is by default a state right, not a federal right.

The mainstream media and the political elites condescendingly portray state nullification as some backwards invention of ignorant racists. Nothing could be further from the truth. They only betray their own ignorance of the historical, ethical, and philosophical validity of state nullification. Here are some of the common objections to state nullification:

1)    “Didn’t the Civil War settle this?” If by “settle” you are suggesting murderous violence is a legitimate method of dispute resolution, then no. All the Civil War “settled” is the notion of an “indivisible” forced union – literally the state equivalent of “until death do us part” (as in “I’ll kill you if you leave”). If you are suggesting that because the north won that makes any northern practice legitimate and any southern practice illegitimate, then given the fact that the northern states used nullification to nullify the Fugitive Slave Laws that would I suppose only legitimize the practice of nullification.

2)    “Ok, maybe nullification was used against slavery but it was also used to oppose civil rights laws, right?” True, but that is not so much an indictment of nullification as it is an indictment of democracy itself. Over the course of history democracies big and small have promoted laws inimical to civil rights. The “justness” of laws in a democracy do not scale with territorial area. If the bigger democracy is always justified in forcing its laws onto its smaller member states then one must conclude it would be wholly legitimate for a racist federal government to impose racist laws on non-racist member states. Democracy is the problem, not nullification.

3)    “Doesn’t the Supremacy Clause (of the US Constitution) trump any notions of state nullification?” No, and in order to understand why one must read the WHOLE clause and not merely cherry-pick the parts they like. It states: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land…” The “made in pursuance thereof” is the operative phrase relative to nullification. Nullification is simply the right of a state to say such and such law has NOT been made in pursuance thereof THEREFORE it is illegitimate.

4)    “Yes, but isn’t it up to the Supreme Court to decide if laws are constitutional?” It may do so through what could be called horizontal nullification (i.e. the checks and balance system that exists between the three branches). However only the sovereign people, acting through their proxy the states, have the final vertical nullification authority over all three branches. To suggest the federal government should be the sole and final arbiter of its own powers is an open invitation to abuse. The fact that the federal government has discovered so many new powers for itself only underscores the legitimacy of these concerns.

If you would like to learn more about state nullification please visit Liberty Classroom/nullification, or purchase “Nullification” by New York Times best-selling author and historian Tom Woods. And if you are tired of being spoon-fed an incomplete version of history by the state run public school system and main stream media and would like to learn the truth for yourself please visit Tom Wood’s www.learnrealhistory.com.

Parental responsibilities and authority have well understood boundaries even though no formal written contract exists between parent and child. It is wholly non-controversial that any parent exceeding such boundaries should have their authority curtailed if not entirely rescinded. It is then a rather curious circumstance that when government, whose duties and authorities are clearly articulated in written forms (constitutions, charters, etc.), exceeds its legitimate authority it is considered nearly an act of treason to merely point out that its actions fall outside the scope of its authority.

Representative democracy (e.g. a republican form of government) is relatively insensitive to the will of the people insofar as the representatives are not obligated to act in every circumstance as would the people. This can be beneficial in tempering a mob mentality toward governance (tyranny of the majority), however that benefit can easily become a liability when rent-seeking special interests co-opt and corrupt the system (tyranny of the minority).

There does at least remain one avenue by which the people can expediently and directly make their voice heard: jury nullification. It is the final arrow in the people’s quiver against a tyrannical government. Georgia House Bill 25 (“Fully Informed Jury Action of 2013”) has recently been introduced into the Georgia state legislature. It would protect the right of the defense in a trial to build a case on the grounds of illegitimacy of the law in question. Jury nullification is already a de facto right of juries (in that jurors are not required to disclose their reasoning thus one is always free to rule based on their conscience). However judges (and prosecutors) typically prefer that jurors remain ignorant of this right as they feel the interpretation and application of “law” is their sole domain and that jurors’ only responsibility is to answer questions of fact (“did he do it or not?”). Judges will often outright prohibit any mentioning of nullification lest a mistrial be declared. House Bill 25 would end such prohibitions. This is a uniquely powerful check on government power insofar as juries are composed of one’s peers, not distant bureaucrats or politicians. If the citizens who voted in the politicians do not agree with what they are doing they have the right nullify what they are doing now as there is no guarantee that future voting will undo the harm that has been wrought. Just as jury nullification (and state nullification) was used to ignore unjust and illegitimate laws like the Fugitive Slave Law of the 1850s, it may also be used today to ignore similarly illegitimate laws related to drugs, unpasteurized milk sales, and similar victimless “crimes”.

Government is established when sovereign individuals convey certain rights to their local state government (while retaining all non-conveyed rights to themselves). Likewise the federal government was established when the states granted the federal government certain “powers” (see 10^th Amendment to the US Constitution) while retaining all others not specifically conveyed. So, just as the individual can nullify certain state laws based on a breach of authority so too can the states nullify federal laws on a breach of constitutional authority. To argue that jury or state nullification is invalid is to argue that it is better that some be made the victims of immoral and unjust laws rather than sacrifice the appearance of unity of the polity.

I shall address next week several of the common objections to nullification. Stay tuned…