Taking Down Libertarian Centralizers: CATO on Nullification

By Mike Muharrey:

Cato Institute chairman Robert Levy recently penned an op-ed describing the “limits of nullification.”

When it comes to this subject, Levy gets a lot of love from the mainstream media and inside the Beltway types. The New York Times published his column, as did several other prominent newspapers. The political class likes to showcase Levy’s arguments against nullification, presumably because he represents a libertarian think-tank and therefore speaks for those most in favor of limiting federal power.

The message? Not even the “libertarians” believe in this crazy nullification stuff!

But Levy parrots the same federal supremacist talking points as establishment pundits on both the left and the right. It seems rather odd to find somebody supposedly married philosophically to limiting government power vehemently defending and submitting to centralized authority.

Levy’s criticism of nullification roots itself completely in Supreme Court jurisprudence, along with one James Madison quote ripped out of context. Levy’s entire argument rests on the idea that the federal courts possess the sole and final authority to determine the constitutionality of an act.

Despite the impressive sounding legal reasoning, Levy never addresses the fundamental question facing those who oppose nullification: how does one reconcile the undeniable fact that the state ratifying conventions adopted the Constitution with the understanding that it was creating a general government with specific, limited powers and the idea that a branch of that very same federal government has the final say on the extent of its own powers?

Quite simply, you can’t.

A limited institution that defines the extent of its own limitations cannot exist. Common sense dictates that the definition of “limited” will constantly expand to accommodate the institution’s agenda. The power to decide makes the federal government’s authority essentially unlimited. And to borrow a quote from Madison, that “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Thomas Jefferson pointed out the fallacy of this notion in 1798, asserting that “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”

James Madison draws the only logical conclusion based on this fact.

The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Levy’s view of the constitutional system lacks any logical sense. It’s like giving the legal department of your bank the final authority to settle a dispute about your mortgage. Don’t worry; the bank has checks and balances. The legal department operates as a completely independent branch from the loan origination department. You can count on it to limit the bank’s power.

Good luck with that.

Levy asserts, “States cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional. That is up to the federal courts.”

Wrong.

They can.

And they have.

Northern states actively impeded enforcement of the fugitive slave acts.

Personal Liberty Laws passed in the north primarily involved noncooperation, denying use of state or local facilities to slave catchers and punishing state officers who cooperated. Some liberty laws guaranteed jury trials to accused fugitives, in direct defiance of the Fugitive Slave Act of 1850. A few states took things a step further. Vermont law subjected fugitive slave hunters to arrest.

Every person who shall deprive or attempt to deprive any other person of his or her liberty, contrary to the preceding sections of this Act, shall, on conviction thereof, forfeit and pay a fine not exceeding two thousand dollars nor less than five hundred dollars, or be punished by imprisonment in the State Prison for a term not exceeding ten years.

This included federal deputy marshals who were often involved in fugitive slave rendition.

These northern efforts defied the 1842 Supreme Court decision in Prigg v. Pennsylvania,  and were so effective that several southern states  cited northern nullification (and they used that word) in their declaration of causes for secession.

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