If individual members of society were to question the law, society would devolve into chaos. Mass anarchy would ensue. Murderers would be running wild in the streets. Armed thugs would be breaking into peoples homes. Rapists would take up permanent residence in college dormitories. Cats and dogs living together, mass hysteria!
I reject these arguments and you should to if you believe in a constitutional government that protects individual liberties.
The argument goes that only the Supreme Court can determine the law, or lower courts adjudicating on past decisions. That members of society are simply too dumb to determine what constitutes a legitimate law. If individual police officers were to stop enforcing laws they felt violated the constitution, chaos would ensue. If jurors were to stop convicting people for laws they felt violated the constitution, chaos would ensue. If judges were to throw out cases based on laws they disagreed with, chaos would ensue.
I shall present evidence to the contrary. Indeed I believe we MUST question all laws in order to have a healthy society that protects individual rights.
Let us look at our glorious Supreme Court as the first example of why putting all faith in our robed overlords is a bad idea. The Supreme Court, of course, is a federal court. They are paid by federal tax dollars. They are appointed by presidential nomination. The president has no incentive to put forth nominees that believe in limited federal power. If anyone can give me even ONE reason as to why a president should put forth a nominee that believes in limited federal power, I’ll eat my shorts and post a video of it on YouTube. At best it could be argued he might have incentive if it was his first term and he was looking to get re-elected.
The Supreme Court justices also have no incentive to rule in favor of states or the people when determining cases. Since they are paid by federal taxes and depend upon the vast mechanisms of the federal justice system to give them continued purpose, it becomes clear they have incentive to rule AGAINST individual or states rights in favor of federal power.
Of course, this is not a blanket statement. The Supreme Court has ruled in favor of state and individual rights on numerous occasions. However, this does not change the fact that no real incentive exists for them to do so, other than the fact they could cause an insurrection if they took too much liberty away at once.
Let’s look at some past examples of the Supreme Court upholding individual rights.
On blacks being protected citizens of the US:
“They [African Americans] are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
On racial segregation:
“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
On the government’s authority to forcibly sterilize “imbeciles” and force vaccinations:
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
On the federal government’s authority to govern every aspect of commerce:
“It is established beyond peradventure that the Commerce Clause of Art. I of the Constitution is a grant of plenary authority to Congress. That authority is… the power to regulate; that is, to prescribe the rule by which commerce is to be governed.”
Given the above egregious examples, it’s clear that the Supreme Court has acted not only against the people in the past, but as a servant of tyranny fit to be compared with the likes of Hitler, Mao, and Stalin.
The original Ordinance of 1787 set the precedent by which the United States would expand westward across North America by the admission of new states, rather than by the expansion of existing states. The Ordinance also included a provision banning slavery in these new states, as well as many of the enumerated rights found in the Bill of Rights.
The question becomes why would the founding fathers establish new individual states over simply one massive expanding state? Because they knew that the freedom to vote with your feet would play an important role in keeping government tyranny in check. When the federal government enacts laws, there is no where to run.
Thomas Jefferson writes in the Kentucky Resolution that states MUST have the right to nullify federal laws in order to keep tyranny in check:
“… that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
James Madison seconds Jefferson’s views in the Virginia Resolution:
“The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound to interpose to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.”
We know without a shadow of a doubt that the framers of our government intended for states to have the authority to nullify federal law that falls outside the explicitly enumerated powers granted to the federal government under Article 1 Section 8 of the Constitution. They knew that without the power to nullify, states would be nothing more than subjects to a tyrannical crown. Common sense tells us this – since why would a state government willingly give up all power to a federal government by signing on to a constitution that eliminates all of their sovereignty? While all the framers felt that the federal government had the authority to act against the states regarding laws that fell within the enumerated 17 powers granted the federal government in the Constitution and the Bill of Rights, anything that fell outside of that was clearly under the authority of the states.
Continuing on with individual members of our society acting to nullify bad laws; just as states were intended to be able to nullify bad federal law, individuals charged with upholding law were also intended to be able to nullify ALL bad law for the exact same reasons.
There is an important distinction that must be highlighted between NULLIFYING a law and CREATING a law. By choosing to not enforce a law, a member of society is not imposing new restrictions upon society. By nullifying a law through inaction, a person can not legalize an action for everyone, only the State can do that. However, a person could stop the unjust prosecution of a law. For example, it’s basically illegal in California to shoot anyone in the back for any reason. If an intruder breaks into a person’s home and the homeowner shoots that individual in the back thinking he was turning to reach for a weapon, a jury could nullify his conviction, even though he is technically guilty of the crime. The action of voting “not guilty” does not suddenly legalize murder.
The most common argument against nullification is that individuals are too stupid to determine what constitutes a bad law. Common sense tells us this is a ridiculous argument. Intelligence plays little role when deciding if a law is just or unjust – what must be argued is the morality and self-preservation of the general population. Morals play the key role in making a personal decision to nullify a law, not intelligence. Even a person with the intelligence of a 5 year old knows it’s wrong to hurt other people. Does anyone honestly think that any member of society would choose to let a murderer go free that is clearly guilty of the crime? People have a built in incentive NOT to do so, since they may be the next victim of his violence if they do. Even if you put a convicted murderer in the jury of another murderer, it’s highly doubtful that he would nullify a murder conviction if the defendant was guilty.
Individual nullification was used to assist runaway slaves. People acting against what they felt were tyrannical laws are what established the underground railroad. Individual nullification was used to prevent political writers that spoke out against the crown from being imprisoned prior to the revolution. In fact individual nullification has a LONG history of preventing injustice, compared to very little history of causing injustice.
Speaking on slavery, Wisconsin actually declared the Fugitive Slave Act to be unconstitutional. What a great thing! Should Wisconsin simply have blindly obeyed federal decree? In 1851, 26 people in Syracuse, New York were arrested, charged and tried for freeing a runaway slave named William Henry who had been arrested under the Fugitive Slave Act. Among the 26 people tried was a U.S. Senator and the former Governor of New York! In an act of jury nullification, the trial resulted in only one conviction.
Individuals and states that are empowered with nullification, in the long run, always create a healthier, freer, state. I would even argue that had the southern states been allowed to keep slavery as they intended, slavery would have been eliminated without 700,000 American’s dying in a brutal civil war along with the nation being impoverished by the massive destruction of resources. Eventually mechanized cotton cultivation would have made slavery unnecessary and the southern states would have rejoined the union peacefully – without half a million dead Americans and decades of residual animosity. No other country in the world required a civil war to end slavery.
In our history even the Supreme Court was not so blind as to see the benefits nullification brings to society.
The jury has an “unreviewable and irreversible power…to acquit in disregard of the instruction on the law given by the trial judge…” (U.S. v. Dougherty, 473 F.2d 1139 (1972).)
A federal court of appeals summarizes: “If the jury feels the law under which the defendant is accused is unjust, or that exigent circumstances justified the action of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit and the courts must abide by that decision.” (United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969).)
The court was re-affirming what John Jay, the first Chief Justice of the U.S. Supreme Court, told jurors: they possess “a right…to determine the law as well as the fact in controversy.” (Georgia v. Brailsford 3 Dallas 1, 4 (1794).)
More on the case history of nullification can be found here:
So in summary I say we must all question what laws are just and what laws are unjust. What makes a law just? I say only those laws that protect our natural rights from infringement by others – including government. There must be a victim for a law to be just. Victimless crimes against the State are a tyranny that must be confronted. Laws that usurp power from the states and from the people are a tyranny that must be confronted. Blindly following the letter of the law can only lead to enslavement. Jefferson gives us a clear definition of what laws are just when he said “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”