Nullification...

from Walter Williams.

I have tons of outside work to do, but I wanted to touch on a tricky subject.

Yesterday Walter Williams subbed for Rush Limbaugh.  Before heading outside I heard him talking about nullification by the states of Obamacare.

This morning I noticed that iOwnTheWorld reported on this: 

Walter E. Williams: States should nullify Obamacare — won’t lead to military action against states 

And then on Renew America I saw this:

Nullification chatter escalating, but could it actually happen? 

Here is a reprint of what I wrote on nullification back on 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.

and

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.


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