Nullification isn’t constitutional, Tucker rushes to assure everyone, since he doesn’t see it mentioned anywhere in the U.S. Constitution itself. But that’s the thing about the powers of the states: they don’t have to be mentioned explicitly. Only the powers of the federal government (as well as the restrictions on the states) are to be specifically enumerated. That’s the nature of a limited, federal system. And as I show in the book, the power of nullification was indeed assured to the people at the state ratifying convention of Virginia, the state from which so many of our most important statesmen and thinkers hailed. Add to this the obvious, commonsense point that a federal government allowed to have a monopoly on determining its own powers will continuously discover new ones, which happens to be precisely what has occurred, and you have a logically unassailable case for state nullification. (For that matter, where in the Constitution is the federal government granted the exclusive, monopoly power to judge its own powers infallibly? Assigning certain kinds of cases to the Supreme Court is not the same thing, and the Supremacy Clause, as I show in the book, merely begs the question.)
Some of us are a little tired of electing do-nothing plastic men who intensify our fiscal problems, and then hope the rubes fall for their pretty talk about limited government. We’re also impatient with the equally failed strategy of waiting for the federal government’s own courts to roll it back – a foolish approach Jefferson viewed with contempt, since he knew the federal courts would simply rubber-stamp federal usurpations. Forgive me if I remain unconvinced that the best strategy for rolling back government is to wait for a good Supreme Court, perhaps in the year 2874, or to keep writing to my bought-and-paid-for congressman.
Two dozen states nullified the REAL ID Act of 2005, and the federal government had to back down. California persisted in its medical marijuana policy after the Supreme Court said to cut it out. (Alabama, Mississippi, and Louisiana wrote amicus briefs in support of California, by the way, since even though those states disagreed with its policy, they also believed in the Tenth Amendment to the Constitution.) Several states have already nullified various federal gun regulations. Cap-and-trade nullification is being drafted as we speak.