This was originally posted on Live Oaks on March 23, 2010. Comments have not been migrated.
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.