Nullification Is About Results, Not Principle

Missouri plans to start nullifying federal gun laws.  I can predict that a number of liberals will proceed to have a freakout about this, which I think is completely unwarranted.  Why?  In the American context, the issue of federalism is mixed up with a lot of vaguely pathological substantive disagreements.  Federalism is at heart a procedural issue, whereas the proper stance of gun rights is a substantive disagreement.  The Senate filibuster is similarly a procedural issue, as is the requirement for Congressional consent to declare war.  Calling an argument procedural isn’t necessarily the same thing as calling it trivial – federalism is much more important than the filibuster, and the Congressional-consent-for-war issue cuts to the very heart of Western norms of governance.

That being said, both left and right in the US have difficulty untangling the procedural issue of federalism with the various odious right-wing policies it has been associated with.  Starting with the “peculiar issue” of slavery, going on to Jim Crow and now many abortion laws, federalism has served as a sort of code. Rightwingers read “states’ rights” as code for their substantive vision of American society, and leftwingers as code for rightwingers’ desire to oppress various groups.  But despite this historical legacy, it doesn’t have to be this way – and it actually isn’t.

If we consider politics as the means for advancing policies to improve America, one can and should exploit ambiguities in the Constitution to advance their vision for America.  Missouri Republicans aren’t pushing for nullification because they wish to inherit Calhoun’s legacy and declare war on the wicked North.  If they begin rejecting federal taxes and subsidies, perhaps I’ll reconsider that statement.  They’re pushing for nullification on this specific issue because they like guns.  Liberals are doing the exact same thing with marijuana laws.  And that’s okay – nobody is out to destroy the Union.

As long as that stays the case, it’s not really much to get too upset about. Spillover effects are the main reason to consider whether a given law crosses those boundaries; and needless to say, one’s view about the possible spillover effects depends a lot on one’s opinions on the substantive issues at hand.  The Constitution defines the acceptable rules of the political contest pretty broadly, and gives political actors a lot of freedom to define the rules in practice.  Liberals don’t have to like Missouri nullifying gun laws…but if it’s really over the line, then file a lawsuit.  Getting high and mighty about the boundaries of federalism like it’s a sacred issue helps nobody.

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