Thursday, August 18, 2005

In Support of Nullification

Recently, the Supreme Court has ruled questionably on several issues: Eminant Domain, Medicinal Marajuanna. In both cases, they ruled in favor of the continuation of increasing government power. For Eminent Domain, they supported the authority of local governments to take whatever they want for whatever purpose they choose--whether or not that purpose is "public" in nature. For marajuanna, they ruled in support of the broadest possible misinterpretation of the commerce clause: every human activity counts as interstate commerce, according to this court.

However, there is something odd about the marajuanna ruling. While they did not strike down the portion of federal drug laws that apply to marajuanna grown and smoked on the same parcel of property (where's the interstate commerce?) they also did not strike down the state law that permitted it. Basically, they said, "Well, the feds can do whatever they want, but so can the states. The states don't have to spend any time and effort enforcing federal laws they do not wish to." I wonder how far this principle could be taken? Because, while the ruling supports the status quo where the Commerce Clause is concerned, it may take us in the direction of a formal nullification principle! Both concepts are unconstitutional, but if we're abandoning the constitution--well, that sword cuts both ways.

This almost looks like the states-rights people did something very sneaky (and praiseworthy, if this is what they intended). This almost looks like a form of nullification. Basically, "Nullification" was an old idea that a state could pass a law in opposition to a federal law and prevent its enforcement within the state. While the option opened up for pro-marajuanna states isn't exactly an endorsement of open nullification, it does open the way for a curious form of obstructionism.

Basically, under the doctrine that the states are not under any obligation to enforce objectionable laws, no local, county, or state official has to take any action to enforce the law.

I can imagine a state deciding it doesn't like any of the drug laws. A law could be passed declaring that no state money could be used to enforce those laws, and what you'd end up with is a few federal agents making a few high-profile arrests, while a drug culture flourished and grew in the absence of support from local and state officials. Were a federal law sufficiently unpopular, a plausably deniable level of obstruction from local officials could occur. The way is paved by the marajuanna decision: that the federal and state governments may have conflicting laws, and so long as it can't be demonstrated that the state is using its power to stop enforcement of federal statues, no crime was committed.

I'm not sure how to regard this. Both the interpretation of the commerce clause and the negative nullification are blatantly unconstitutional, but I can't help but laugh at the fact that supporters of an absolute federal government are being mocked by the very monster they unleashed.