The Mises Institute’s Mark Thornton covers legalization and jury nullificationDetails
Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:
State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.
What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.
Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the statesDetails
Resisting slavery – a powerful example for today.Details
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in public schools, at first glance it may seem paradoxical for us consciously to break laws. One may ask, “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with Saint Augustine that “an unjust law is no law at all.”
–Rev. Dr. Martin Luther King, Jr. “Letter from Birmingham Jail” April 16, 1963
In some ways, it is ironic to use Dr. King as an example to promote nullification and interposition. Dr. King, in his “Letter from Birmingham Jail” makes one reference to nullification and interposition, and it is not a flattering one. Many state and local governments cited nullification when they refused to comply with federal legislation and court decisions against segregation. It is the one unfortunate blight one can find in the nullification movement throughout American history.Details