Imagine for a moment that you are a basketball player. The opposing team has the ball and you’re playing defense. What would happen if you turned around to find that the court had doubled in size and the other team suddenly had 10 players on the court? With more court to cover and more players to defend, you would be playing a losing game.
That’s what happens to the federal government when states refuse to comply with their crummy unconstitutional “laws.” The more states that pledge non-compliance, the further the federal resources needed to enforce these laws are stretched. The simple act of states saying no makes it incredibly difficult for unconstitutional laws to be implemented.
Even so, there is sometimes intense disagreement among supporters of nullification about whether or not nullification bills need to have specific penalties included for any federal agent who violates the nullifying legislation.
For many well-intentioned people, putting this kind of language into the legislation is a sign that the bill has “teeth,” that the state is not willing to have its sovereignty trampled on. In some states, the lack of penalties for federal agents has been contentious to the point that even nullification advocates won’t support legislation without them. And in some extreme cases, they’ve actually lobbied against bills that don’t include criminal sanctions for federal employees. Without slapping federal agents with stiff criminal charges, they claim, the legislation would do more harm than good.
The reality that nullifiers must face, however, is that many times this insistence on harsh penalties for federal agents does nothing but stand in the way of nullification. There are too many state politicians trying to get into Washington D.C. and too few trying to hold it in check. Characters such as these are not likely to take a chance on supporting any legislation that might hurt their career aspirations. While it would be a tremendous boon to the cause of liberty if all state politicians were bold and brave, that is unfortunately not the case.
So, if the squeamish suits in the state capitals won’t be so bold as to make it a crime to violate state law, they can at least declare that their states will not comply in the enforcement of unconstitutional federal acts. Such actions allow politicians to appear principled to their constituents while not sacrificing their national reputation. Furthermore, even without official penalties, these actions actually make it extremely difficult for the federal government to enforce their grabs for power.
Judge Andrew Napolitano recently said that a state which would simply refuse to help the federal government enforce federal gun laws would make those so-called laws “nearly impossible to enforce.”
And James Madison, writing in Federalist #46, not only advised this same noncompliance as a solution to unconstitutional federals, but noted that when a number of states did the same, it “would present obstructions which the federal government would hardly be willing to encounter.”
While most would have a hard time arguing with those two on the effectiveness of state noncompliance, if you find yourself disagreeing with both of them, there’s still another important consideration.
Tailoring nullification laws to the level of courage of state or local politicians is clearly not optimal, but, then again, neither is sitting idly by while more unconstitutional laws are fully implemented. If the choice is between action and idleness we should choose action.
The ultimate question is simple: is it better to formally declare non-compliance without a prescribed penalty, or is it better to accomplish nothing while awaiting more forceful language from new state politicians who might be willing to do so in future years?
This brings us back to the basketball game. Every time a state refuses to help the federal government enforce their laws, the feds’ court gets bigger. They simply do not have the players needed to defend the whole playing field and this lack of resources becomes a penalty in itself. Ultimately, there’s no real need to slap a technical foul on a group of players that can’t stop the other team from scoring.
Those who need evidence that this is true only need to look to the REAL ID Act of 2005 or to the hundreds of medical marijuana dispensaries that are open around the country. Nobody needed to make it a crime to enforce these unconstitutional laws.
The states just ignored them. They just said no.
What all advocates of nullification must realize is that the choice isn’t just between a bold nullification law and a weak nullification law. It is often a choice between a step towards nullification and nothing. When we look at it this way, the answer becomes obvious. Choose the option that starts us on our way back to the rule of the Constitution.
The path to freedom begins with non-compliance.