Anti-NSA Activists Discover a (Not So) New Weapon Against the Government: States’ Rights

You might’ve noticed that since the election of President Obama, there’s been a re-emergence of support for nullification. Briefly described, nullification is thought to be the right of the states to overrule federal laws, per the language of the Tenth Amendment to the U.S. Constitution. Put another way: states’ rights.

Its origins in the United States go all the way back to the founders and, of course, the issue of slavery. John C. Calhoun, the “Great Nullifier,” and other southerners embraced states’ rights, nullification and interposition (states declaring federal laws unconstitutional) as justifications for preserving slavery as the centerpiece of the pre-war South’s economy.

Following the Civil War, nullification became a core belief among pre- and post-Civil Rights Act segregationists and was the basis for the emergence of the modern conservative movement beginning in the 1950s. Martin Luther King Jr., in both his “I Have A Dream” speech and his “Letter from a Birmingham Jail,” negatively referenced nullification and interposition. And in the past few years these theories have been dusted off and re-booted for the purposes of opposing just about every Obama administration policy, law and executive order.

Enter Edward Snowden and the NSA story.

An outfit called OffNow has launched a campaign to use the Tenth Amendment, nullification and states’ rights to block NSA from doing what it’s tasked with doing, going so far as to provide model legislation which lawmakers can adapt to their individual states. The legislation bans “material support, participation or assistance, to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s) and thing(s) to be searched or seized.”

One bill in Washington state would not only ban contractors from working with NSA, but it would sever all communication between state agencies and NSA, including law enforcement. Furthermore, the law would shut off the electrical power and water supply to NSA’s facility in Yakima. Another bill would disallow evidence collected by NSA to be used in court. In all, nine states have similar laws in the works. (It’s worth noting that these laws have been floated by elected members of both parties.)

But what exactly is this OffNow group? Well, first of all, I noticed ten corporate trackers on the front page of its site, including alleged PRISM collaborators Google and Facebook. Four of those trackers are analytics bugs that surreptitiously collect information about visitors such as their IP addresses, browser, hardware and operating system information. So there’s that. Fascinating, isn’t it, how OffNow employs the services of corporations that are supplying data to NSA, while simultaneously running a nationwide campaign for states to force corporations and other agencies to disassociate with NSA.

Structurally, OffNow is a combined effort between the “repeal Obamacare” group known as the Tenth Amendment Center (11 corporate trackers on the main page of its site, including alleged PRISM collaborator Google) and the Bill of Rights Defense Committee, which includes notable activists Ben Jealous, Naomi Wolf and Daniel Ellsberg. According to Mother Jones, the hacker known as Anonymous along with Occupy Wall Street organizers invented the Twitter hashtag #NullifyNSA in solidarity with OffNow (get your #NullifyNSA t-shirts while supplies last!). The Electronic Frontier Foundation also supports OffNow’s efforts.

Yeah. That’s quite an interesting Mos-Eisley-cantina assembly of characters there, huddled under the dubious banner of nullification.

Now, to be clear, I’m absolutely not suggesting that there are racist motivations here. But the impact of further legitimizing nullification could be very, very bad. As the concept grows in popularity and becomes codified in state laws, it could not only ignite a constitutional crisis, but it could also open the door to the states blocking and overturning everything from healthcare laws to gun control laws, civil rights laws, environmental regulations and so on. In their kneejerk scramble to scare people about what NSA is and isn’t doing, these seemingly unthinking radicals are opening a massive Pandora’s Box out of which a lot of other awful things will emerge. Here’s to hoping it remains on the extremist fringes of the discourse where it belongs.

Bob Cesca is the host of the Bob Cesca Show podcast, a twice weekly political talk show. He’s also a contributor to Follow him on Twitter and on Facebook.