The legal fiction that states can nullify US law persist in Texas

Austin American Statesman ^ | 2.6.2010 | Sanford Levinson

[wolfcreek]

An unexpected feature of this year's gubernatorial race is the revival of certain political notions identified with early American history. Republican candidate Debra Medina in particular has made nullification a major aspect of her campaign, both in her two debates with U.S. Sen. Kay Bailey Hutchison and Gov. Rick Perry and on her Web site, which includes, under the label "Restore Sovereignty," the message that the U.S. Constitution "divides power between the federal and state governments and ultimately reserves final authority for the people themselves. Texas must stop the over reaching federal government and nullify federal mandates in agriculture, energy, education, healthcare, industry, and any other areas D.C. is not granted authority by the Constitution."

She does not specify the mechanism by which nullification would take place, but, obviously, she appears to believe that the legal authority to nullify is unquestionable, making it only a question of political will.

[Jim Robinson]

Woo hoo!! Go TEXAS!!

[GeronL]

secede? nullifying is not secession.

The powers not delegated to the federal government belong to the states or to the people.

Its that simple.

[conimbricenses]

Under our current constitution, though, the federal and state government were supposed to be in charge of different things. You certainly couldn't seriously say that Washington, Hamilton, or Madison would have signed a constitution that left the states in charge of national affairs. In so far as national affairs were more important, you could say the federal government was -- and was supposed to be "in charge" -- but the states had their own sphere that Washington was supposed to keep out of. At some point the federal government came out on top. Rebheads will say it was because of the Civil War, but actually it was the introduction of the federal income tax in 1913 that gave a clear predominance to the federal government.

All and all, the article above is a delightful, if deceptively "mainstream" (and thus more likely to be inaccurate) version of history/constitutional law. That said, both it and the subsequent discussion it has produced are fraught with historical error. I would accordingly point out that the "point" where the federal government came out on top, at least in the estimable eyes of that founder-of-founders Thomas Jefferson, happened well before either the Civil War or the Income Tax. It happened instead sometime in 1826 shortly after Jefferson died, and several of his final letters plainly state as much. Consider:

A few months before his death Jefferson began preparing a counteroffensive against a legislative program of John Quincy Adams to federalize the system of road, canal, and harbor improvements under an expansive reading of the power to "regulate commerce." In December 1825 he actually drafted a bill to be proposed by one of his surrogates in the Virginia legislature that is strikingly similar to the so-called "nullification" bills on gun rights and the sort that are finding favor in state legislatures today. It proclaimed in part:

And as a further pledge of the sincere and cordial attachment of this commonwealth to the union of the whole, so far as has been consented to by the compact called "The Constitution of the United States of America," (constructed according to the plain and ordinary meaning of its language, to the common intendment of the time, and of those who framed it;) to give also to all parties and authorities, time for reflection and for consideration, whether, under a temperate view of the possible consequences, and especially of the constant obstructions which an equivocal majority must ever expect to meet, they will still prefer the assumption of this power rather than its acceptance from the free will of their constituents; and to preserve peace in the meanwhile, we proceed to make it the duty of our citizens, until the legislature shall otherwise and ultimately decide, to acquiesce under those acts of the federal branch of our government which we have declared to be usurpations, and against which, in point of right, we do protest as null and void, and never to be quoted as precedents of right.

Jefferson also explained his purpose in drafting this resolution quite clearly to several of his closest friends. To William Branch Giles:

Are we then to stand to our arms, with the hot-headed Georgian? No. That must be the last resource, not to be thought of until much longer and greater sufferings. If every infraction of a compact of so many parties is to be resisted at once, as a dissolution of it, none can ever be formed which would last one year. We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents; and separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation. But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation

To William F. Gordon (the sponsor of the resolution in Richmond):

"It is but too evident that the branches of our foreign department of govmt. Exve, judiciary and legislative are in combination to usurp the powers of the domestic branch also reserved to the states and consolidate themselves into a single govmt without limitn of powers. I will not trouble you with details of the instances which are threadbare and unheeded. The only question is what is to be done? Shall we give up the ship? No, by heavens, while a hand remains able to keep the deck. Shall we with the hot-headed Georgian, stand at once to our arms? Not yet, nor until the evil, the only greater one than separn, shall be all but upon us, that of living under a government of discretion. Between these alternatives there can be no hesitation."

To James Madison:

I have for some time considered the question of internal improvement as desperate. The torrent of general opinion sets so strongly in favor of it as to be irresistible. And I suppose that even the opposition in Congress will hereafter be feeble and formal, unless something can be done which may give a gleam of encouragement to our friends, or alarm their opponents in their fancied security.

Madison counseled Jefferson to stay the resolution temporarily because he knew of an attempt by Martin van Buren to soften the Adams bill in Congress. Jefferson unfortunately died before the situation resolved and Adams' bill passed the next year. It is plain from the text of his final letters though that Jefferson valued the union and was willing to begrudgingly tolerate is milder "usurpations" in the name of preserving its advantages, but if they became too great to bear he made it perfectly clear that Virginia should separate. His resolution also illustrates that the current strategy of the so-called "nullification" movement today with regard to federal gun laws and the sort is very much in keeping with his constitutional system.

So far as Jefferson may be considered a preeminent, although certainly not uncontested, representative of one major branch of founding-era constitutional theory, Professor Levinson is entirely wrongheaded to dismiss the present so-called "nullification" movement on the grounds that he does.

[GeronL]

Anyone happen to have $40 million laying around?
I think I heard the Jackson Ranch near Ft Hood in Lampassas County is for sale.... 9,300+ acres...

[TexasFreeper2009]

No REAL Texan would consider ANYONE born in Connecticut or Massachusetts a Texan.

And W bought that ranch in Crawford just before the election to help fool the masses.

LBJ in an example of what a Texas liberal is like, same crazy socialist ideas, more forceful personality to actually implement the agenda.

[crusty old prospector]

Like Bob Dole?

[servantboy777]

>>I need to visit Texas again before I need a passport to do so! :-) <<

Incorrigible, that comment alone has won you a lifetime passport to The Republic of Texas.

Welcome.

[Envisioning]

First of all Texas has it’s own power, more than we need in fact. If the feds cut the lines, we would be just fine, on the other hand California would be sitting in the dark.

Water - we got tons. Ports are all ours. Money - we could print our own. Roads - who wants to leave Texas ? :)

Don't forget plenty of cattle and crops!

Screw the fed!

Texas Ping!

[Jim Robinson]

"NOTE: Sanford Levinson holds professorships in law and government at the University of Texas and is a member of the American Academy of Arts and Sciences. His most recent book is ‘Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It).’"

FU Sanford Levinson and the statist horse you eode in on!!

DON'T TREAD ON ME!!

[BP2]

Too many times the States have acquiesced their States Rights — mostly out of ignorance — as a result of some inane SCOTUS or Federal Court verdict which introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the States ... and individual Americans.

I keep hoping that enough State political leaders in California will come to their senses and tell the Federal Government (EPA) to F*CK OFF about that damn Delta Smelt.

With the US Department of Interior putting the brakes on a the "2-Gates Fish Demonstration Project" in January — which would attempt to lure the Delta Smelt away from water pumping facilities in the south delta — the Federal Government interference in the San Joaquin Valley needs to come to an end!

[Jim Robinson]

Yup. And our girlyman goobernator is begging the feds for a bailout when he should be telling them to shove it up their asses. Terminator? Yeah, right.!

[rwfromkansas]

The question of nullification is tricky, but how is secession a definite no?

Keep in mind that the states joined together in union. If the very principle of that union is based on the right to withdraw, why can’t a state leave later, just leaving that union?

[Perchant]

How can a paper in Austin say something so stupid when Austin is a sanctuary city? If a city can be a sanctuary from a federal laws, a state certainly can do so as well from all federal law. I suggest they start printing their own currency before going forward with the plan. Washington/Beijing can only hurt you with their dollars.

[BP2]

> First of all Texas has it’s own power, more than we need in fact.

Indeed.

If the rest of the country were to fall off into the ocean, Texas
— and many of the other States evoking the 10th Amendment —
would be just fine.

When it comes down to it ... JUST LIKE THE RELATIONSHIP BETWEEN THE REPUBLICAN PARTY AND THE TEA PARTY ... they need us more than we need them!

[conimbricenses]

The issue you describe is far more complex and less certain than you let on. As late as 1825 no less an authority than Thomas Jefferson had this to say about the relation between state and federal, and about who created what:

“The states in N. America which confederated to establish their independance of the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independant states, and as such authorised to constitute governments, each for itself, in such form as it thought best. “They entered into a compact (which is called the Constitution of the US. of America) by which they agreed to unite in a single government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified. They retained at the same time, each to itself the other rights of independant government comprehending mainly their domestic interests. “For the administration of their Federal branch they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive and judiciary, in the manner settled in that compact: while to each severally and of course, remained it’s original right of appointing, each for itself, a separate set of functionaries, legislative, executive and judiciary also, for administering the Domestic branch of their respective governments. “Those two sets of officers, each independant of the other, constitute thus a whole of government, for each state separately the powers ascribed to the one, as specifically made federal, exercisable over the whole, the residuary powers, retained to the other, exercisable exclusively over it’s particular state, foreign herein, each to the others, as they were before their original compact.

It is certainly true that the opposing Federalist Party viewpoint gained an early foothold in the Supreme Court. But this was more a product of the early political party system than any matter of which side was "right." Most of the founders held the three branches to be co-equal in their right to interpret the constitution thereby making all three host to differing beliefs on the "states or people" issue simultaneously. The Federalist Party established its foothold on the Supreme Court and made its views known there, but only because the other two branches were firmly in the hands of the Jeffersonian Republicans after the politically disastrous Adams administration, and those other two branches - including Jefferson himself - were anything but enthusiastic in their willingness to ascribe to the early court's Federalist viewpoint.

As a final note, it is no small irony that in the landmark Federalist ruling of McCulloch v. Maryland, Justice Marshall sided with his old political faction's interpretation despite the fact that the opposing counsel for Maryland, Luther Martin, was himself a delegate to the Constitutional Convention in 1787. That circumstance put Marshall in the awkward position of telling a direct and fairly prominent participant in the drafting of the Constitution that his own witness was to be subordinated to Federalist judicial theory. This is no small point either, as Constitutional Convention records indicate that Martin was the also delegate that drafted the "Supremacy Clause" on which McCulloch was partially based.

But such were politics at the time, and even in 1819 the Supreme Court was willing to set aside "original intent" for their own political expediency.

[Carry_Okie]

In real Texan's minds, it's NOT fiction.

That right of secession may have been surrendered at Appomattox. I would be careful to research the terms of that agreement before asserting any such legal reservation.

The reality is that such nullification is derived by the power to enforce it. I seriously doubt that FedGov is prepared to invade Texas militarily to reverse a nascent precedent.

[goat granny]

Right on, that great Texan that gave us the great society..

[a fool in paradise]

Walter E. Williams says right now it is a draw whether states can secede.

The colonies seceded from the crown, showing that secession is possible.
In the 19th century, we were told that “no” states cannot secede.

He's still curious to see what a "2 out of 3" cases would bring.

[Vaquero]

Hey!!! Buttwipe!!! Sanford Levinson !!! yeah you!!!

try reading the 10th amendment there, Skidplate...

“ 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.”

[rwfromkansas]

Marbury V. Madison is what defined judicial review. Article III is pretty general in nature.

I am not necessarily opposed to the concept...something is necessary to check laws for constitutionality and the idea that the legislature or even voters are up to that task as some suggeset is absolutely absurd. I do think the responsibility rests with the courts.

But, let’s be honest....it was Marbury V. Madison that really pushed it.