From left to right, the mainstream agrees. Don’t nullify. Why? Because it might actually work.
Last year, Ian Millhiser, Senior Fellow at the George Soros-funded Center for American Progress Action Fund and Editor of Justice at the establishment-liberal ThinkProgess.org, made that very argument against nullification in an article headlined Why a Bipartisan Move Against the NSA Could Kill the New Deal. He was all twisted up in knots because many on the left rallied behind efforts to nullify in practice mass NSA spying through state resistance.
“This might seem like a good idea to NSA critics unhappy with President Obama’s reform proposals, but the constitutional theory it depends on is profoundly dangerous. It poses a serious threat to that liberal touchstone, a federal regulatory and welfare state equal to the problems of growing corporate power and poverty,” Millhiser wrote. “More immediately, it could empower conservative state lawmakers to cut off Medicare, Medicaid or Social Security, to frustrate civil rights enforcement or even to prevent federal law enforcement from investigating criminals.”
Millhiser was most concerned that using a tactic to turn off resources like water and power to NSA facilities would work so well that his opposition would realize they could do the same for programs he personally favors. And interesting reason to oppose something, but not surprising coming from someone who appears most interested in maintaining and expanding on the status quo of centralized national power.
Farris founded both the Home School Legal Defense Association and Patrick Henry College in Virginia. More recently, Farris took the helm of the Convention of States Project (COS), a Tea-Party-centric conservative organization pushing for a state-initiated Article V convention to amend the Constitution.
Interestingly enough, this stalwart on the right marched in lock-step with lefty Millhiser when it comes to nullification during his radio interview with Kerby Anderson.
Unlike Millhiser, Farris seems to understand the problem of monopoly government power, and he articulates it beautifully in the first few minutes of the show.
“No level of government should be the final voice in making the determination of how much power that level of government should have. We’ve allowed Washington D.C. to be the final voice on how much power Washington D.C. should have.”
Farris hit the nail on the head with that.
The United States was founded as a decentralized system, with very little power delegated to the federal government. Most authority was left to state governments, with decision-making remaining primarily at the state and local level. The founding generation valued its autonomy and its ability to self-govern at the state level without interference from a central authority. By allowing D.C. to determine the extent of its own power, Americans destroyed the system the founders intended and replaced it with one-size-fits-all governance dictated by an elite political class entrenched along the Potomac.
Farris obviously gets it right up to this point – until the discussion turns to nullification. Then all of a sudden, he sounds like an apologist for centralized power that would make Millhiser over at ThinkProgress proud.
Farris doesn’t want states to nullify. Why not?
For the same reason Millhiser doesn’t want them to nullify. It might work. And if it does work, the left might use nullification in non-conservative ways.
Farris chaired the committee that wrote the Religious Freedom Restoration Act. That ended up serving as the basis for the Hobby Lobby decision holding that for-profit companies can claim a religious exemption to providing Obamacare mandated contraceptive coverage.
“If California had the authority to nullify a federal law, California would nullify the Religious Freedom Restoration Act and say Hobby Lobby, and every other pro-life business in California – we don’t care what the Supreme Court says, we don’t care what the Religious Freedom Restoration Act says, we nullify that. In California, you will pay for abortions for your workers.”
Putting aside whether such an action in California actually qualifies as a nullification of a federal act (it likely doesn’t), Farris presents a pretty straightforward message.
“That’s nullification on the left hand side, and if we’re going to use a tool, it’s got to be able to be used both ways,” he told Anderson.
Farris went on to claim that in the 1830s Madison opposed the idea of a single-state nullifying a federal act (he didn’t), calling it “a dangerous form of anarchy.”
While Millhiser and Farris both argue that nullification is bad because “the other side” can do it too, that doesn’t play into their messaging when it come to their own projects.
You won’t hear Millhiser telling people to not vote for liberals just so conservatives don’t learn that they can vote for conservatives too. You won’t hear Farris telling people not to use an Article V convention just so liberals don’t learn that they could amend the constitution too (hint: the left already knows about it.)
So what’s the real concern here?
It’s hard to say what motivates them, but the mainstream left and many so-called conservatives don’t really want the decentralized system the founders intended. They don’t want the powers left to the states and the people to remain “numerous and indefinite,” as Madison put it in Federalist 45. They simply want to impose their policies across all 50 states by way of central authority in Washington D.C., while stopping the opposing side from doing likewise.
State nullification on a large scale would bring this entire system to an end.
“Don’t nullify. Someone else might get the idea and use this tool in ways that you don’t want.” Maybe this actually means, “Don’t nullify because then there will be no way for my ideology to rule the nation.”
Whatever the motivation, it’s a tacit admission that nullification works. Otherwise they wouldn’t be concerned at all.
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