Monday, January 24, 2011

More on Nullification...

 Last week I did a post on Idaho being one of the first states to possibly use nullification to stop Obamacare.  They are being joined by 6 or 7 other states.  My learned attorney friend, Mark of Ordered Liberty, disagrees.

Mark said this in the combox:
Well, I'm going to disagree with you on this one. Interposition and nullification are not legitimate constitutional remedies for congressional over-reach. A state has no ability to, in a question of federal law, defy the federal government. While Jefferson & Madison proposed nullification as a remedy for the Alien & Sedition Acts, no court has ever agreed with the idea. John C. Calhoun supported nullification as a way of fighting federal tariffs, which adversely impacted the slave-states of the South prior to the Civil War. The last time nullification was seriously proposed was during the Civil Rights movement in the 1950's and 60's, when the Southern power-structure sought to defy congressional and judicial defense of the equal rights of all American citizens.

It is a discredited idea, and one that has never been embraced as part of our constitutional structure. I cannot imagine that a federal court, as a consequence, would uphold a state's defiance of a validly enacted congressional statute. 
Since I'm not an attorney and would never get into a discussion of the legality of nullification, all I can offer is an opinion based on common sense.  It seems to me, and to quite a few other people, that the Federal government is completely out of control.  They have taken over vast areas of the economy, interfered in areas that should be reserved to the states, and operate in a manner that brings to mind a school yard bully.

Every year the citizens of this country turn over vast amounts of their hard earned money to the Feds - money that is held hostage and subsequently doled out to finance things they have no business being involved in to begin with.  This has been going on so long that the citizens seem to think it's just the way things should be.  When ObamaCare came along, people began waking up to the fact that perhaps things really are not quite right.

I believe that many (actually - almost all) of the things the Feds are doing are unconstitutional and should be returned to the states to regulate.  Instead, what I have witnessed during my lifetime, is the states rolling over, theoretically shrugging their shoulders, and saying, "What can we do - it's Federal law?"  Now, that just strikes me as weird.

If we are to believe that in all cases Federal law trumps state law, then there is really no reason to have states to begin with.  We should just become one big blob of a country ruled by some elites in Washington, DC.  And that, my friends, is about what we have become.  If Washington doesn't get their way by passing a law, they invoke regulations through departments such as the EPA and Department of Education, which I believe are unconstitutional. Are we not to be governed by representation?  I didn't vote for these rogue agencies, nor the people appointed to run them, and I didn't vote for Obama's 30 plus "czars."

Nullification appears to be a viable way for the states to say, "Whoa, dude - that's not constitutional and I think we'll take a pass."  Enter the Supreme Court, who will of course say, "sure it's constitutional because the Constitution is a "living document", and we'll twist it any old way we want."  Naturally, Roe v Wade and the matter of abortion comes to mind - an issue best referred to the individual states.

In the New York Ratifying Convention of 1788, Hamilton stated:
"I maintain that the word "supreme" imports no more than this: that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government. The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding."

The federal government does not exist and has no power outside of the Constitution. Thus, the States have the absolute right to nullify any act outside the Constitution.
It appears to me we have people who are trying to uphold the Constitution, while others are trying to turn it into some sort of document that changes and morphes to suit purposes that may or may not be constitutional.  It is clear we can't always depend on the SCOTUS to interpret things correctly, or we wouldn't have decisions like Roe v Wade.

The case of Cooper v. Aaron, (1958),  resulted from the Brown v. Board of Education decision ending racial segregation in schools across the country and is the most quoted when it comes to discrediting nullification.   The Court held that, “The United States Constitution is the supreme law of the land per the Supremacy Clause of Article VI."  But I think desegregation was also something that should have been handled by the states.  If it had been handled by the states, the outcome would have probably been better.   So we have the Supreme's declaring the Federal government the top dog based on a law that in my opinion is unconstitutional.  Sort of turns into a big circle, doesn't it?

While the concept of nullification may not be viable constitutionally, as my friend Mark has stated (the above statement by Hamilton is, after all, not part of the the Constitution), it seems to me that something should be in place to protect the rights of the states. If, as I believe, the constitution is there to protect the states as well as the country as a unity of states, then we should start paying heed to the correct interpretation.  Otherwise, the next step could well be either revolution by the people, or the imposition of a police state by the Feds, and I don't think anyone wants either of those scenarios.

John Carey over at Sentry Journal has posted an hour long video of Thomas Woods on state nullification.  I have not had time to watch, but it's on my list for later today.  According to Mr. Carey, Thomas Woods book Nullification: How to Resist Federal Tyranny in the 21st Century is one of the driving forces behind Idaho and six other states exploring nullification of Obamacare.


From: Publius-Huldah: 
H/T to  Jim Gourdie of   Conservatives on Fire 

Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, and Jefferson. 

During August 2010, the People of The State of Missouri approved Proposition C and nullified key parts of “obamacare”.  As a matter of constitutional principle, may the People of the States lawfully do this?  Or must they submit to every law made by Congress whether it is constitutional or not?  Are federal judges the final authority?
I will prove that the States have the Right and the Duty to nullify unconstitutional acts of  Congress.  The only real question is whether Americans have the Will to reclaim our Constitutional Republic & the Rule of Law, or whether they will submit to the rulership of men who “don’t care” what the Constitution says, and who see obamacare as a way “to control the people”.  click on title to read the rest
The aforementioned Tom Woods has this to say about the issue

And the Dumbest Guy in the World Is…

…Ian Millhiser of the hilariously misnamed ThinkProgress, who says, “The Constitution expressly states that Acts of Congress ’shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding,’ so our founding document specifically denies the states a veto power over federal laws.”
This guy has a law degree, people.  A law degree.  And he thinks he has defeated Thomas Jefferson with this third-grade analysis.
What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”  read the rest
I'll have to leave it to the legal beagles of the world to quote case law and wrangle over what's constitutional and what's not.  As for me, I'll continue to rely on common sense with a bit of Occam's razor, the Peter Principle, and the Word of God to help me.

Linked by:

Blue's Blog
Larwyns Links at Doug Ross
Conservatives on Fire

and I thank you...


Blue said...

Excellent post, Young Lady!

I think it's all about money. The states go along because, if they don't, the Fed cuts off their funding for roads or some other building project. The states lack the intestinal fortitude to not comply. Example: Iowa was a state that was not going to mandate seatbelt use. The Fed said "Fine... we won't give you any highway money. The choice is yours". Iowa, of course, enacted a seatbelt law.

The Fed pays a good portion of the day to day operating expenses of the state of California. Something like 60% of California's state tax receipts go to pay legacy costs for retired state employees. The claim is that it will be 80% by 2014. California can't afford to argue with the Fed. Those of us in fiscally responsible states pay to keep the less responsible states running.

I agree with you that the majority of things that the Fed sticks it's nose into would be better handled by the states. It's quite obvious that the Fed wants control of everything....


Adrienne said...

Blue - Exactly! I was going to elaborate on that very thing but with my ADD I have to be careful or next thing you know I'll be talking about some shiny object...oh wait - a bird just flew over. ;-)

Mark D. said...

This is about as good a statement of the pro-nullification argument that I've seen made. Nice use of the quote from Hamilton as well -- one of my favorite founders! That said, there is a certain flaw in the logic of nullificatino and that involves the concept of federalism. What is the relationship between the states and the federal government. The idea that nullification proposes is that the state may defend its own citizens against federal laws that it believes violate the Constitution. Essentially, the state is telling the federal government that the federal government's law is not enforceable within the boundaries of the state. Let's take that to its logical conclusion. What happens when the IRS shows up to enforce a provision of ObamaCare? Do the Idaho State Police arrest the IRS agents who try to enforce the provision? If they do, and the IRS agents call in the Federal Marshalls for support, what happens then? Does the governor call up the National Guard to repell the Marshalls? Possibly. But what happens when the President, as he is entitled to do by Art. II of the Constitution and by federal statutory law, nationalizes the National Guard and then orders it to support the IRS workers? This is what happened in the South during the Civil Rights Era. The segregationist governors would call up the National Guard, and the president would then nationalize the Guard, and order them to stand down.

Ultimately, we live in a system where there is divided sovereignty. The states have authority over state issues, and the feds have authority over federal issues. For a state to assert authority over federal issues -- to be able to decide on its own whether federal law is constitutional or not, well, that goes against that principle, as well as the principles set out in the court case you cite, Cooper v. Aaron. State courts decide questions of federal law all the time, but those decisons can be appealed into the federal court system. And states can bring suit in federal court -- as most are doing against ObamaCare. But the idea of interposition, that's just too much.

BTW, since you brought up the founders, here are some important American historical figures who did not believe in interposition:

1) Patrick Henry
2) St. George Tucker
3) John Randolph of Roanoke
4) Andrew Jackson
5) Jefferson Davis

Henry was an anti-federalist. The rest identified themselves with the Jeffersonian Republican Party or its later descendent, the Democratic Party. Davis, of course, was the president of the Confederate States of America. All of them rejected the idea of interposition and nullification, arguing that it violated the principle of federalism under the Constitution.

John Carey said...

Excellent post Adrienne! I thank you for the mention. Many will disagree with my position but my position is one that was embraced by many of the founders to include Thomas Jefferson. 1. The States created the federal government, not the other way around. 2. States enter the union voluntarily through ratification of the constitution. 3. The founders never intended for federal judges to involve themselves in State matters unless it was of a constitutional concern. And 4. The federal government has only 17 enumerated powers granted by the constitution, while the powers of the States are virtually unlimited. And it is from this position I feel that the SCOTUS was out of bounds when they ruled against nullification in the 1950s. States need to be able to check an out of control federal government and the concept of nullification is as old as our nation. Just because the SCOTUS rules one way doesn't mean it was a correct ruling. That's my 2 cents for what it's worth.

Anonymous said...

Thanks for the H/T and a really big thanks for the blog of the week selection.

On nullification, I agree with John. The Founders meant for there to be checks and balances on each branch of government and not just on the Executive and Congressional branches. Having said that, the conundrum is when the Executive or the Congress or a State disagree with the decision of the Supreme Court, who decides who is right. Obviously the Supreme Court can't rule on itself. I guess the best solution is to elect more conservatives and appoint more conservative judges that could then undo some of the damage done in the past.
Not easy, is it?

Mark D. said...

The Supreme Court does commonly rule on its own opinions. It is called "upholding" and "overturning." The Supreme Court case of Brown v. Board of Education, for example, which inspired the last frenzy of nullification talk back in the 1950's and 60's, overturned Plessy v. Ferguson, which was also a Supreme Court case. That's just one example out of many that can be cited.

As for nullification of Civil Rights Laws, the United States Constitution was amended after the Civil War in a way that makes such nullification impossible. The 14th Amendment expressly binds the states to the federal standards of due process. Those can and are and should be judicially enforced by the federal courts. It also expressly gives Congress jurisdiction to craft legislation to enforce the provisions of the 14th Amendment. Thus, the idea that the federal government should not be involved in securing civil rights simply does not square with the actual text of the Constitution, something that I always thought conservatives were supposed to care about. If you don't like it, the answer is repeal of the 14th Amendment, not the embrace of a daffy idea like nullification.

Adrienne said...

Blue - as usual I agree with you. I think we were separated at birth

Adrienne said...

Mark - blush

Adrienne said...

John - exactly. If the states can't protect themselves from an out of control government we should just abolish the whole concept of states.

I watched the video you posted (Tom Woods) Excellent!

Adrienne said...

Conservative on Fire - nothing worth having is ever easy...

Mark D. said...


The states can't be abolished under the Constitution. At least not without the state in question consenting to it.

The idea is one of separate and discrete areas of authority. The federal government has control over national issues that effect the entire Union. The states have control over those issues that are strictly involving the individual states. That idea is called federalism, and is in accord with Catholic social teaching -- the principle of subsidiarity. Where the dispute comes in regards which issues are national and which are local. When disputes arise, the proper venue for resolving them is not a fight in the street -- or between federal agents and members of the state police -- but in court.

Nullification confuses not only federal and state jurisdiction, it confuses the roles played by the states in our system and the roles played by the courts. It is a usurpation of judicial authority by a state. Or it would be if it had ever been done. But it hasn't ever been done. Fortunately.

Adrienne said...

Mark - "The states can't be abolished under the Constitution. At least not without the state in question consenting to it. "

I was speaking sort of tongue-in-cheek.