TAMPA, December 2, 2012 – For libertarians, the reemergence of ideas like secession and state nullification couldn’t be more welcome. Both are attempts to resist the exercise of arbitrary power, which is power never delegated to the party attempting to exercise it. They should remain the last resort for free people to resist tyranny.
The problem with both remedies is that they provoke confrontation with the federal government. That doesn’t mean they aren’t legitimate tools, but they play into the government’s hands. The government loves war and domination. State nullification and secession give the government the opportunity to employ both.
Using the state government to resist unconstitutional federal laws pits one government against another. Ultimately, it can lead to an armed confrontation between state and federal agents, each attempting to enforce their respective laws. For peaceful freedom lovers, it’s an away game.
Secession brings with it even higher stakes. Although secession is not rebellion, as the seceding state is not attempting to overthrow the existing government, the federal government will say it is. History has taught us that enough people will believe it that the government can justify a war. Like nullification, it’s also an away game.
Jury nullification gives us the home court advantage. There is no enemy that the government can fight its war against. There is no opportunity for violence because none of the government’s edicts are technically violated. Its own rules call for “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”
Fine. The trial was held. The defendant was acquitted. Go pound sand.
History supports this argument. When South Carolina’s state government nullified the Tariff of Abominations in the 1830’s, Democratic President Andrew Jackson threatened to invade the state. When the southern states peacefully seceded in the 1860’s, Republican President Abraham Lincoln did invade.
The results have been different for jury nullification. If you’re drinking a beer or enjoying a glass of wine while reading this article, you’re safe from government goons breaking down your door to a large extent because of widespread jury nullification of Prohibition during the 1920’s.
In 1851, Daniel Webster followed up his three-hour “Seventh of March” speech exhorting strict enforcement of the Fugitive Slave Act by attempting to prosecute violators himself. The accused had forcibly rescued a fugitive slave from federal marshals attempting to return him to his master. A Boston jury told the blow hard to pound sand and acquitted them all.
No civil war resulted. It was only after the southern states seceded that the government could find a pretense for war.
Conservatives in “red states” are deeply opposed to Obamacare. It has been the cornerstone of opposition to Obama’s presidency since the day it was passed. Following his reelection, dozens of petitions hit the White House website requesting federal permission for red states to peacefully secede from “Obama’s America.”
Jury nullification is far less risky. If a majority of people in those states truly do oppose Obamacare enough to want to secede over it, then it should be next to impossible for federal prosecutors to get unanimous guilty verdicts for disobeying the law. Individuals in those states can simply refuse to obey the law and juries can refuse to convict them.
It’s by no means a red state thing, either. California has effectively nullified drug prohibition for medical marijuana, while Washington and Colorado have legalized it even for recreational use. The ends are noble but the means carry unnecessary risk.
Why not fight this one on the home court as well? Individuals in all three states routinely refuse to obey the federal law. The only problem is that jurors who agree with them routinely convict them anyway, just because the government’s black-robed priest tells them they have to. That begs the question, “What if they don’t?”
The answer? Nothing. There is nothing the judge, the federal marshals or even the president and his army can do if the jury acquits. It doesn’t matter how overwhelming the evidence was against the defendant. It doesn’t matter what the judge’s instructions were to the jury. Once the jury votes to acquit, the defendant walks. The jury is dismissed. The government can only do one thing. It can pound sand.
Jury nullification is the most peaceful means to settle what everyone claims are deep, political divisions within our federal republic. It doesn’t require violence. It doesn’t require civil disobedience. It only requires one thing. For Americans to start acting like Americans again and refuse to do what they believe is wrong just because some lawyer in a government costume tells them to.
Are we at least capable of that?
Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.