Nullification

I love the following blog entry, even though its from Oct. 2010. It tells us about a powerful weapon for rolling back big government - from the roots up: one town, or county or state at a time.

Nullification - and the very act invokes a solid lesson for the voting population about states rights (and Individual rights) trumping federal powers - it teachs them about the concept of sovereign states banding together under a constitution but only on the declared condition that they retain all the powers they, and the people had before the constitution was ratified unless specifically delegated to the federal government in the constitution they were ratifying.

I've always been irritated at the child-like position officials put people in when they make immoral, unconstitutional demands backed by irrational arguments and then expect grown adults to obey. It is really sweet when someone points at the naked emperor and just says, no. And I love that part in this blog about states "...nullifying the Fugitive Slave Law in spite of a Supreme Court decision upholding it." Clearly there can be more than one authority on what is constitutional and if this isn't resolved in the next decade or so, Jefferson's tree is going to be watered as society decides which it going to be the ultimate authority - we the people demanding our life, liberty and pursuit of happiness, or the Progressives demanding we submit to their altruistic vision of the all-powerful federal government.

NULLIFYING UNCONSTITUTIONAL FEDERAL ACTS

By Larry Pratt
October 5, 2010

The November elections are roughly a month away, and they couldn’t come soon enough.

More Americans are seeing every day how out-of-control federal officials have become. As Angelo Codevilla aptly put it, they have become The Ruling Class, and a very corrupt one at that.

Patriotic Americans are hoping that the November 2 elections will bring this growing soft tyranny to a halt, but it remains to be seen if congressional Republicans will have the gumption to reverse what they themselves contributed to when they controlled the federal government. If the Senate in 2011 includes Senators Sharron Angle (NV), Marco Rubio (FL), Joe Miller (AK), Ken Buck (CO), Christine O’Donnell (DE), Mike Lee (UT), and a few others, then the GOP caucus may well be forced to cut programs and agencies rather than continuing to bloat them.

But the states, happily, have not been waiting for the federal cavalry to come over the hill. States have rediscovered their powers of nullification rooted in the Tenth Amendment. That wonderful amendment reads that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Historically, the most widespread use of nullification was in the North in the years shortly before the War Between the States. They passed laws nullifying the Fugitive Slave Law in spite of a Supreme Court decision upholding it. That point needs to be stressed. The Supreme Court is not the last word in determining what is constitutional. The voters of each state are. If they re-elect politicians who will nullify Supreme Court opinions and unconstitutional laws or regulations, then so be it.

The states have now nullified the REAL ID Act, which would have converted state driver’s licenses into a national ID card filled (electronically) with all kinds of personal information. Years past the deadline, that unconstitutional act has never been implemented. In addition, many states are nullifying Obama’s efforts to socialize American medicine (or have already done so).

And of particular interest to gun owners, eight states have recently enacted a Firearms Freedom Act. These Acts provide for a nullification of all federal gun laws in cases involving guns made in a state, and which remain in the state. Wyoming’s law has one extra provision that is almost perfect.

The Wyoming statute provides for a penalty of up to 365 days in jail for a federal official who attempts to impose a federal gun law in contravention of the state’s Freedom Act. Perfection would require amending the law to provide for up to 366 days in jail. That extra day – even if the sentence were suspended following conviction – would trigger the federal law which would revoke the offending agents’ civil rights, including their right to keep and bear arms. I personally do not think that revoking a person’s Second Amendment freedoms for non-violent crimes is constitutional, but for the time being this penalty provides a handy tool for removing the federal boot from our necks.

A 366-day provision inspired by the Wyoming law not only needs to be inserted into all states’ Firearms Freedom Acts, it needs to be part of any state law nullifying all unconstitutional federal laws and regulations. For a first-class treatment of the history and contemporary promise of the use of the Tenth Amendment, one need look no farther than Thomas Woods’ Nullification: How to Resist Federal Tyranny in the 21st Century.

© 2010 Larry Pratt - All Rights Reserved
(Edited by Steve Wolfer on 1/09, 9:15pm)

Post 1

Monday, January 9, 2012 - 9:54pm

Awesome post Steve.

Monday, January 9, 2012 - 10:18pm

Thanks, Jules. I'm just re-posting that fellow's blog - and I don't know anything about him except that I liked the two or three articles of his I've read.

It is empowering and uplifting to see people taking some concrete actions and in those actions be able to visualize a larger movement along a new and powerful path to a heroic goal.

(Edited by Steve Wolfer on 1/09, 10:20pm)

Post 3

Saturday, January 14, 2012 - 10:19am

"Nullification" is one of those words that gets a bad knee-jerk rap, because of the way it was used in the 50's in the South to fight desegregation. The word appears in MLK's "Dream" speech.

I am a huge fan of MLK's "Dream" speech. Every year around now, I take the time to freshly read the words again, or listen to it online, word for word. It can't be cherry picked; it must be taken in its entirety, and when it is, it is one of the greatest anthems to freedom and liberty ever spoken, anywhere.

It is not about forced association or forced anything; it is about the fundamental nature of peer based freedom, the very cornerstone of freedom. In a nation that claims to support freedom and free association, one of the most important ways we defend our freedom is to respect the freedom of others sharing freedom in this nation, and that is ultimately what MLK's speech is about.

When considered in the context of its times, it is a truly remarkable, heroic, inspiring and compelling anthem to freedom. That is why I re-read it every year, and why the MLK holiday is a welcome reminder to re-read it, and why, for having made that speech alone, it is entirely fitting that MLK's birthday be celebrated by Americans. He authored the greatest anthem to freedom ever uttered.

That is his public record. The petabytes of internet noise -- innuendo and whispered nonsense about FBI files and womanizing and communist party ties and, I don't know, why not toe fungus is totally unimportant; his legacy is those public words and thoughts, and they are great words and thoughts.

I don't blame MLK in the least for taking down the concept 'nullification,' because he was accurately referring to its use in the context of civil rights. The blame is with a nation, or a part of a nation, that tolerated its abuse in that context, not with MLK for referring to it in that iconic speech.

Unfortunately, that abuse today taints its use in other legitimate contexts, totally unfairly. Without taking that once abuse head-on and distancing from it, I'm afraid 'nullification' is carrying some too heavy baggage to be useful in American politics.

regards,
Fred

Post 4

Saturday, January 14, 2012 - 10:44am

I was a six year old boy. Our family piled into the Oldsmobile one summer in 1961, and took one of those family road trips to visit distant relatives:

PA to OK to LA to FL and then back to PA.

No air conditioning! Windows open the whole way...

Somewhere between FL and PA, on the way home, somewhere in the deep South, we are tooling up the road in the sweltering heat and come across a little roadside shop that serves soft-drinks and ice cream or whatnot. It isn't real crowded, but there is a small line of folks. It is a day hotter than Hell. My dad parks the car, and he and I get in the short but sweltering line while my Mom and sister stretch their legs in the dusty little parking lot. Maybe there was a little shit shop, I forget. But the man in front of us in line, another traveler on the highway, a black man whose family was sweltering in the car next to us, is refused service, told to get lost by some lout practicing his form of 'free association' in commerce.

My father calls bullshit on this, and practices his own form of free association in commerce; he buys four extra cold drinks, and gives them to the man for his family, who is grateful for the cool drinks for his wife and daughters. I don't exactly remember the entire exchange, the man probably paid for them, but the essence of the conversation was just 'This just isn't right.' And then he glares at the shop owner, like, what the Hell is wrong with you, you reptilian piece of shit? It's the most angry I think I've ever seen my father. My mother was scared to death as we pulled out, convinced we were going to get followed on the road for violating the local tribal customs; there was that kind of totally un-American fear in the deep South of the 60's. My father's blood was boiling. I don't remember his exact words, but the essence was, "This sure as Hell isn't why I fought in Europe."

That was the context in which MLK made his "I have Dream" speech in 1963. Hopefully, we've forgotten most of that context. It has at least been beaten back into the cracks and crevices and slime and underbelly of America, where it belongs.

We defend our individual freedom in America by respecting the freedom of our peers in America when we are all politely navigating in the public sphere. What we do in our free association homes and churches and socius is freely ours, but one of the foundations of defending that individual freedom is respect for each others freedom on the public commons.

Post 5

Saturday, January 14, 2012 - 10:53am

Two excellent posts, Fred.

Both nullification and 'states rights' have been abused in the service of bigotry. I too remember a drive through the deep south, about 1963, and seeing the gas stations with the "White" and "Colored" restrooms.

Post 6

Saturday, January 14, 2012 - 11:10am

Steve:

Yes; America and American concepts were not quite the clear cut winners in our Civil War. America and American ideas both won and lost in that war when the Union prevailed.

Freedom both advanced in some areas...and declined in others.

It was like a too heavy dose of chemotherapy; it killed the cancer, and then some, 'states rights' being a healthy tissue victim.

Post 7

Saturday, January 14, 2012 - 6:39pm

Fred ...

Thank you for that tribute to the 'Dream' speech. Beautifully stated.

Allow me to also recommend MLK's 'Letter from a Birmingham Jail'.

http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

Ken

Post 8

Sunday, January 15, 2012 - 10:45am

Ken:

From that letter:

"Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal."

Wow.

regards,
Fred

Post 9

Sunday, January 15, 2012 - 12:25pm

This states a necessary but far from sufficient condition.

Post 10

Sunday, January 15, 2012 - 1:02pm

And yet, if we could rid our laws of those that don't meet this necessary condition, it would be a hell of a start.

Post 11

Tuesday, January 17, 2012 - 12:22pm

No where in the Federalist Papers is there a mention of the power of nullification by the States. Also the Supremacy Clause of Art IV declares all laws passed by Congress pursuant to the Constitution or supreme over State law.

There is no Constitutional basis for nullification, nor did the Founders contemplate such a power.

reuben.

Post 12

Wednesday, January 18, 2012 - 12:46pm

Hi Reuben,

I think you meant Article VI not IV. In Clause 2 it states: This Constitution, and the laws of the United States which shall be made in Pursuance thereof;... shall be the supreme law of the land..."

That, to my mind, is an excellent argument for Nullification. It says that the laws must be in pursuance of the Constitution. Only the Constitution is at all times supreme. Only if they are made pursuant to the constitution shall the the laws become included as supreme.
----------------------

And I think someone has given you bad information regarding the Federalist Papers. Take a look:

Hamilton, discussing this issue in the Federalist, #33 wrote about bad acts by the federal government "...which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union ... EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION ... "

He goes on to say that a law made by Congress which is not authorized by the Constitution, "...would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…"

Take a look at the Federalist No. 27 where Hamilton says, "...the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS… "

And then in Federalist No. 78 Hamilton wrote: "...every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

Federalist No. 33, 27, and 78 tell us that all acts of Congress which are not authorized by the Constitution are “void” - they are “mere usurpations and deserve to be treated as such”. They are not made “in Pursuance” of the Constitution and have “supremacy” over nothing.

Nullification of usurped powers is a natural right - it is the remedy against insupportable oppression by the federal government. It is a right that the people possesed prior to the constitution. It is a right we exercised to free ourselves of the British colonial government.

I've copied much of this information from an argument between a National Review writer, Allen C. Guelzo, arguing against Nullification and someone calling themselves "Celticreeler" who responded to the article.

There are two other places I'd look to for the Founding Father's attitudes towards nullification: One is Jefferson's letters, in particular the letter to the framer's of the Kentucky state constitution where he recommended that they include the right to withdraw from the union if the federal government overstepped its powers, and the second is to the ratification documents for the different state conventions - many of which made clear that they would never view the federal powers as having any validity if they went beyond the constitution.
---------------

The constitution makes it clear that it cannot pass laws that step outside of the powers specifically granted. And nearly everything we read by the founding fathers cries out with the determination to give the federal government very limited powers, and to find ways to keep that power in check and to never let it grow.
--------------

But the clearest expression of the very heart of the right to nullification comes from the Declaration of Independence:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights... That to secure these rights, governments are instituted... That whenever any form of government becomes destructive of these ends, it is the right to alter or abolish it..."

Nullification is the people altering a form of government that has become destructive of man's inalienable rights.

Post 13

Wednesday, January 18, 2012 - 4:24pm

So therefore the current government should indeed be abolished..

Post 14

Wednesday, January 18, 2012 - 6:59pm