One of the most common arguments against nullification has to do with anarchy and the rule of law. The horrified central planner exclaims, “Nullification! We can’t have that in a lawful society. That would lead to anarchy!”. The nullifier then responds, “No. You’re confused. Anarchy is when the central government usurps a power not granted by the Constitution. Nullification is how we restore order.”
It will come as no surprise that I am sympathetic to the nullifier’s argument in this hypothetical exchange. I recognize, though, that this argument has the same intellectual depth as two school boys pointing their fingers at each other, saying, “He started it!”. Without engaging in a bit of additional thought, many people may be tempted to agree with the central planner in the exchange above. Let us, then, examine the claim. Does nullification lead to anarchy?
First a few assumptions
Now, for any power, the central government can have two positions. The central government either claims authority to exercise the power or it doesn’t. Similarly, for any power which the central government claims the authority to exercise, each of the states can be nullifying or declining to nullify. So we need to compare the hypothetical state of affairs in these scenarios when nullification is “allowed” and when nullification is not “allowed”. Which situation is more conducive to the rule of law?
According to Hayek, in “The Road to Serfdom”, a definition for “rule of law” has to do with the predictibility of the government’s actions. If the government’s actions are predictible, the rule of law is in force. If the government’s actions are arbitrary, the rule of law is not in force. We will use this understanding of the “rule of law” for our analysis.
Scenario A: The central government does not claim a power. Conveniently, we can dispose of this one quickly. Nullification is irrelevant to this scenario.
Scenario B: The central government claims a power. All states decline to nullify. In this scenario, again, it doesn’t matter if nullification is “allowed”.
Scenario C: The central government claims a power. One or more states would choose to nullify. This scenario needs to be analyzed.
Scenario C.1: We look first at the case where nullification is disallowed. If nullification is disallowed, the Constitutional interpretation is done solely by the Supreme Court and is subject to error. If the Supreme Court does not err, all is well. If the Supreme Court errs, there is no recourse. The Constitution says one thing, but the law being enforced says something else. Over time, interpretation of the Constitution comes to include any meaning which an imaginative attorney can persuade five out of nine justices to agree to. Additionally, as the years pass, errors compound. The difference between what the Constitution says and what the Supreme Court says the Constitution says gets progressively bigger. The rule of law degrades over time.
Scenario C.2: Now we look at the case where nullification is allowed. This is the most complex analysis.
With the central government claiming a power, it can be correct or in error. With one or more states nullifying, they can also be correct or in error. Since we know that the states and the central government are in disagreement, there are only two cases to examine. If the central government is correct, the nullifying state(s) is/are in error. If the central government is in error, the nullifying state(s) is/are correct.
If the court correctly claims a power, a state may err and decide to nullify. This is the scenario that the central planner in our opening argument was so worried about, so we will need to look carefully. In actuality, what happens over a long period of time? As we saw by the Patriot Act, the federal government is patient. The Patriot Act was drafted in 1995 in response to the Oklahoma City bombing, then sat on a shelf just waiting for the “right time” to be introduced. Along came 9/11 and in it went. Similarly, if a small number of states incorrectly nullify a Constitutional power, they are unlikely to be able to maintain resistance over long periods of time. Eventually, the state politicians will change, and the federal government will pounce on the opportunity to eliminate the erroneous nullification.
On the other hand, if the court incorrectly claims a power, this would be met with resistance from a large number of states. Over time, this resistance would force the federal government to repeal the Unconstitutional law and the tendency for errors to compound over time would be reduced. Over time, the difference between what the Constitution says and what the Supreme Court says it says would be much less than in the “no nullification” scenario. Over long periods of time, in this case the Constitution is interpreted to mean what the Supreme Court and 50 states all agree that it means.
So what we see is that it really doesn’t matter, “who started it”. In the “no nullification” scenario, interpretation of the Constitution is limited by the imagination and eloquence of the attorney who solicits five out of nine votes. In the nullification scenario, interpretation of the Constitution is limited to what the Supreme Court and 50 states agree to. Therefore, the interpretation of the Constitution in the “no nullification” scenario is far more error-prone and disruptive to the rule of law. Contrarily, the scenarios with nullification have error correction built in. We can now say that the central planner in our opening argument was simply mistaken. Nullification does not lead to anarchy. In fact, over the years, nullification actually protects the rule of law by stabilizing Constitutional interpretation.
Steve Palmer is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.
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