Checking the Federal Monopoly: A Bipartisan Case for States’ Rights

We all know monopolies are bad. Lack of competition lets them get away with all sorts of bad behavior, from treating workers poorly to ignoring the wishes of their customer. Most people agree that government has some role to limit monopolies.

But what happens when government becomes the monopoly?  When the federal government passes the Patriot Act, or Real ID, and tells its dissenters, “If you don’t like it, tough”?  How about when the federal government passes the NDAA, allowing US citizens to be locked up without a trial; or claims the right to assassinate its citizens via drone strikes; or appoints drug czars who claim marijuana is as dangerous as heroin?

We worry about the power Wal-Mart would have if it became a monopoly, but at least Wal-Mart can’t lock us up without a trial.

This is not to say that the federal government hasn’t done anything good. The Civil Rights Act pushed then-racist Southern states to accept racial equality. The Environmental Protection Act protected thousands of endangered species, and the Clean Water Act helped prevent tragedies like this.  But on balance, the federal government has become a monopoly we should no longer be proud of.

Of course, there’s a difference between a corporate monopoly and a government. If you don’t like the government, you can vote our elected officials out. But in 2012, 114 million people voted; your vote was only one of those. Congressional elections, where incumbents win over 90% of the time, can be even harder to affect than presidential ones. In a country our size, with politicians as entrenched as ours, does your vote really check the federal monopoly?

The solution so rarely acknowledged is one that dates back to 1798: more states’ rights, ie nullification. This solution isn’t perfect: states in the South, for instance, might use this as an excuse to prevent LGBT protections (I think fears that they’d reinstate racism are overblown; this is, after all, the 21^st century). But on balance, states’ rights beat the system we have now. State governments offer more choice and better democracy.  They can cater to their citizens without the top-down, one-size-fits-all approach we see in Washington.

Take the example of legalized marijuana.  The federal government’s current laws ignore the wishes of Colorado and Washington voters, although to his credit Obama may not enforce them.  If the federal government legalizes marijuana, it will be ignoring the wishes of countless states that don’t want to legalize. The issue is not whether arguments against marijuana make sense. The issue is that voters in different states are clearly split on this issue, and a one-size-fits-all law that makes the drug legal in all 50 states tramples voters’ wishes just as surely as our current laws do.

By contrast, state elections are as democratic as they come. There were only 1.8 million votes cast in Colorado’s last gubernatorial races. One vote may still not make the difference, but it matters a hell of a lot more than 1 in 114 million. At the local level, you have more influence to both guide and check your government. At the federal level, that influence just isn’t there.

And ultimately, if you don’t like a state, you can leave. If you don’t like the federal government, tough. Emigration’s a monster. If you give the federal government all the power, and then they use that power to indefinitely detain US citizens or tap your phones, you’re SoL until the next election at the very least (and that’s assuming you’re enough of a power player for your voice to count at the federal level). If your state passes those same policies, you can leave the state without leaving our great nation.

Here’s how states are using nullification—the practice of voting to ignore a federal law they deem unconstitutional—in the 21^st century. Colorado and Washington used it to legalize marijuana. Several states proposed nullifying the TSA. More are looking at nullifying the NDAA. Some are nullifying tighter gun laws, and others have tried to nullify Obamacare.

The record in itself is telling. Nullification isn’t some far-right doctrine that’s code for racial oppression. It’s bipartisan and flexible. It was admittedly used in the 1960s as an attempt to block the Civil Rights Act. And the time before that, it was used to block the Fugitive Slave Act.  In the 1850s, when the federal government that handed down Dred Scott vs Sanford said black people were property, it was to states—who nullified the Fugitive Slave Act and declared Dred Scott bad law—that black people turned for support.

It’s worth pointing out that you do not have to support nullifying everything. You can nullify X without nullifying Y. This makes it one of the most flexible tools out there for citizens to change their government.

We all have our favorite example of government overreach. Obamacare or the NDAA. Real ID or drone strikes on US citizens. Nullification lets you stand up and fight back against government overreach, but in a way that doesn’t require dismantling the entire thing.

Nullification isn’t liberal or conservative. But I contend that its principles—choice and competition, a bigger voice for the individual citizen—are deeply American.

Note: I’ve mostly focused on the moral case for nullification. For the judicial case, click here .

Note: If you want to learn more about current nullification bills, or get involved, here’s a great resource.  For current examples of attempts to nullify the NDAA, or to help with the effort, here.