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Friday, July 16, 2010

Nullification for Fun and Profit

If it was good enough for Jefferson and Madison, it's good enough for Publius (HT):

Nullification was formalized in the Virginia and Kentucky Resolutions of 1798, and it essentially says that the states are not bound to enforce federal laws that step outside the bounds of the central government's Constitutional authority. That raises two obvious questions. First, what are "the bounds of the central government's Constitutional authority"? Second, what is the Constitutional relationship between the states and the central government? Woods discusses the three provisions that have been used to justify expansion of federal power--the "general welfare" clause, the commerce clause, and the "necessary and proper" clause--and argues convincingly that these were largely clauses of convenience that empowered the government to do the things necessary to fulfill their constitutional mandate. 

A useful reminder that the Americans have plenty of constitutional tools to defend themselves, if they have the understanding and will to defend themselves. The system of checks and balance wasn't meant simply to keep the various branches of the federal government in constitutional compliance, it was also meant to keep the federal government as a whole in line by the several states. 

It's been said that the American constitutional order is one of the most elegantly designed systems for sustaining paralysis. You certainly wouldn't want to run a private company, or even a PTA meeting, in such a manner. This has attracted criticism from modern scholars. Surely you want a government that can get things done? Well, sort of. The Founding Fathers were pretty skeptical about government. As George Washington put it: "Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master." In other words, they would not have been keen on Obamacare and about three-quarters of what the federal and state governments spend their money on now. Slow government, the theory went, was likely to mean less government.

Therein lies the rub. The whole apparatus of the welfare state, the Departments of Education and Energy, the IRS, DEA and the whole alphabet soup of red tape spinning agencies could be gone, and gone within about two or three years. How? Very simply, by electing pro-freedom candidates in Congressional and Presidential elections. It's that easy and that hard. The constitution furnishes the means by which Americans can restore their freedom, they just have to exercise those means. They don't even have to go all the way to nullification, just mark a ballot come November. A Congress, with a working majority of pro-freedom members, could do wonders.

What stops Americans from voting in a pro-freedom political class is not special interests, big business or big government. I like ranting about big government as much as the next blogger, but that's not really who we are complaining about. The problem is the guy sitting to you on the bus commute, or in the next cubicle. They don't believe in freedom. Perhaps they think it is impractical, or immoral, or perhaps they don't know or care. The government keeps growing because voters keeping voting for a certain type of politician. 

No matter how how brilliantly you devise a constitutional system, no matter how eloquently the letters and speeches you leave behind, if the spirit of freedom wanes in a nation, none of it will matter. The judges will twist your constitutional safeguards into manacles - see the Commerce Clause - and your noble words against you - see Roosevelt's Four Freedoms. Nullification has its merits, but educating, and persuading, Americans about their history is by far the better bet. Without knowing their history, it's unlikely Americans will have much of a future.

Posted by Richard Anderson on July 16, 2010 | Permalink


Incidentally: In Canada, policing is an exclusively *provincial* matter. RCMP are, in effect, rent-a-cops. This means that provincial governments, holding the purse strings of enforcement, have great latitude with respect to the enforcement of federal laws.

More important, perhaps, is the fact that our constitution gives the federal government little to spend money upon. The equalization and transfer payments currently made to the provinces by the federal government are not authorized by the constitution: they take place pursuant to a fictional power called the "federal spending power": a fictional power to spend money on anything it wants to spend money upon, whether or not it falls within federal *legislative* competence. Hence federal contributions to health care and education, which fall *exclusively* within provincial legislative competence.

In the 90's, I joined and volunteered my time with the Reform party precisely because of its stance against the federal spending power. That stance withered with the Alliance, and disappeared with the Conservative Party. Hence one of the major needs for Freedom Party to register and run federally.

Posted by: Paul McKeever | 2010-07-16 7:07:38 AM

Publius identifies the crux of the issue with this statement:

"The problem is the guy sitting to you on the bus commute, or in the next cubicle. They don't believe in freedom. Perhaps they think it is impractical, or immoral, or perhaps they don't know or care."

Thanks to the dominance of the philosophy of altruism in our culture, the guy next door is likely to believe, implicitly or explicitly, that he is his brothers' keeper, and is duty-bound to sacrifice his interests in the service of that goal. If freedom gets in the way, then it is freedom that has to be tossed aside.

The guy next door may even see some benefits to his sacrifice: having various elites take care of our pensions, health care, education, and a lengthening list of other tasks, saves us the trouble of having to think about, plan for and carry out often complex decisions on our own. And if the elites mess things up, which they do on a regular basis, we hear a lot of sanctimonious rage and usually nothing more.

Ultimately, the guy next door is only too happy to be raped periodically if it saves him the bother of having to think for himself and take risks in life. He's generally quite content to believe the lies of those who promise him something for nothing even if he actually gets nothing in the end. He's likely been brought up believing that suffering in life is necessary and unavoidable, and that the most moral thing a person can do is make sure that everyone suffers equally.

Posted by: Dennis | 2010-07-16 11:44:08 AM

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