Tom Woods, one of the top libertarian thinkers of our time, has written a piece about state nullification. As he has done in the past, he argues that states have a right to nullify federal laws, regardless of what the U.S. Supreme Court says. He argues his side from all different avenues.
I think it is important to make arguments using various avenues. There are moral arguments, Constitutional arguments, and just common sense arguments.
One of the things that Tom Woods has argued is that the Supreme Court is an arm of the federal government. So why would we depend on it as the final decision maker? He is absolutely correct. The Supreme Court justices are nominated by the president and approved in the Senate. But regardless, would we really want to give dictatorial power to 9 people in robes?
I would like to take this whole thing to its logical conclusion. Let's say that someone argues that state nullification, let alone state secession, is impermissible. It doesn't matter whether the person arguing this point is trying to use a Constitutional argument or just giving his opinion. This person is basically giving his consent to a dictatorship.
Let's say the president issues an executive order that mandates all babies to be bottle-fed. Mothers are no longer allowed to breast feed because it is unfair that some working mothers don't have the same opportunities as stay-at-home mothers. It is not equal, therefore the president orders all breast feeding to stop in the name of fairness and equality. If you don't like my example, pick another example of a law that you would strongly disagree with.
But you and many of your fellow Americans do not like this executive order. You think the executive order is unfair. You think it is illegal because the president didn't get legislation passed by Congress. But even if Congress passed something, you still deem it unconstitutional, aside from the fact that it is tyrannical and does not belong in a free society.
So someone challenges the ridiculous "law" or executive order to the U.S. Supreme Court. But let's say the U.S. Supreme Court upholds the executive order. Let's say that the Supreme Court rules that it is looking out for the general welfare and is therefore constitutional. According to the anti-nullification crowd, that is the end of it.
Of course, you could come up with even more outrageous examples, whether you think they are realistic or not. Maybe the president declares a national emergency and declares himself (or herself) dictator. If the Supreme Court upholds it, then that is the final word. Unless you can appeal to your so-called representative in Congress to impeach. But maybe the new dictator will just declare that he can't be impeached. After all, he is the dictator. As long as the Supreme Court upholds everything, then the anti-nullification crowd can't really complain too much.
The choices here would be a revolution or some kind of nullification or secession (or accepting slavery). So the anti-nullification/ anti-secession people are either in favor of violent revolutions or else they are in favor of giving dictatorial powers to the federal government.
They can say that "it can't happen here" all they want, but do they really know that. What if it did happen here? Would they then deem it ok for states to nullify or secede? And who is to decide what goes over the line? These are some tough questions that the anti-nullification crowd needs to answer.