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.

[Force of Truth]

Texas can’t claim independence until it 1) Stops taking federal money and 2) Stops paying taxes to the federal government. Good luck with that.

[Christian_Capitalist]

So then could 49 states decide to disassociate themselves from the 50th and kick it out of the Union?

49 States could elect to leave the 1787 Constitutional Union and form their own Union if they wished, sure. Each individual State has the right to leave the Union any time it wants, for any reason or no reason, whatsoever; and independent, Sovereign States can form any compact of association they choose.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

[Non-Sequitur]

Each individual State has the right to leave the Union any time it wants, for any reason or no reason, whatsoever; and independent, Sovereign States can form any compact of association they choose.

But can a state be turned out of the Union against their will if the other states choose to end their assocaiation with them?

[conimbricenses]

The Supreme Court did nominally deem secession "unconstitutional" in the case of Texas v. White, decided shortly after the Civil War. The case is far from the court's finer moments though, and its ruling is questionable on several grounds - among them that it was authored by Justice Salmon Chase, previously Secretary of the Treasury, on a lawsuit about the validity of treasury securities under a policy that Chase himself authored and implemented while Secretary. His argument itself is also rather poor, consisting of a clumsy melding between the weaker and more extreme iterations of Lincoln's "union mysticism" and an intentionally selective reading of American constitutional history to that point in time.

It is a ruling against secession, and as such has carried weight in its subsequent use by the court. But to state that it precludes secession (or "nullification" for that matter) in perpetuity as an unquestionable and unchallenged matter of fixed precedent is something akin to saying the same for any poorly reasoned court rendering (that is to say Plessy v. Ferguson meant the same for segregation in past decades, or Roe v. Wade means the same for abortion today) when in fact we know that the court can and should vacate such bad positions, and actually does just that from time to time.

[loboinok]

If memory serves the idea that a state could nullify a federal law died in 1832.

Apparently, Montana doesn't hold to that idea!

[guitarplayer1953]

The US Constitution is silent on the issue of secession. There is no provision in the Texas Constitution (current or former) that reserves the right of secession, but it does state that "Texas is a free and independent State, subject only to the Constitution of the United States" ... not to the President of the US or even the Congress of the US.

Both original and current Texas Constitutions state that political power is inherent in the people and (just as the Declaration of Independence declares) "the people have the right to alter their government in such manner as they might think proper."

Texas and Hawaii are two states that were once recognized as independent nations, before choosing to join the Union. Their voluntary decision to join the Union did not come with an explicit agreement that they could never leave.

Some people claim that the Civil War proved that secession is illegal. Whether one was in favor of the North or the South, all that war actually "proved" is that a state or group of states can be militarily forced to continue being a part of a group. Superior strength does not prove morality or legality as any citizen of the former Soviet Union can attest.

Some people are under the mistaken impression that the US Supreme Court decision in Texas v. White "proved" that secession is unconstitutional. Actually, that decision was not based on any precedent or anything in the Constitution and was in direct conflict with the actions of the then-President Grant who had to sign an act to "re-admit" Texas into the Union and allow them to send Representatives back to Congress. If Texas had never left, as the Court declared, it would not have been required to be "re-admitted" and Grant would not have needed to sign the declaration. This is a conflict that has never been fully cleared up.

Bottom line: There is no law forbidding or allowing secession. If Texas or any other state decides to secede, the resulting peaceful separation or war will depend not on law, but on the will of whomever happens to be Commander-in-Chief at the time.

One can also argue, and constitutional scholars certainly have, that the 'readmission' of Texas to the union did not violate the Supreme Court's decision in Texas vs. White...it was is superfluous, and indeed, did not, in and of itself violate, and was not contrary, to the Texas vs. White ruling. Simply speaking, there was no precedent for handling this situation. The readmission of Texas in early 1870 came just a short few months after Texas vs. White, and Congress and the President did not forsee the long-term implications of the Supreme Court decision. Just like there is no explicit wording in the Constitution forbidding secession, there is no wording in the Constitution specifically outlining the statutory process for the readmission of states.

Because of this, if state's rights proponents continue to argue that a state's right to secede is implied because they joined the union as 'independent states', a strong argument can also be made that an indissoulable union was also implied in the Constitution. Membership in a union does not dimish in importance or totality a state's sovereignity. That's the whole point of federalism. However, it does imply relinquishing some power to the national government. Indeed, federalism is 'shared' power, but it is not 'equal' power, at least in the example of the US. Clearly national dominance was designed into the structure of the Constitution.

[Kimberly GG]

oh geeez....God help us all.

[Who is John Galt?]

Except that 37 our of 50 states (44 out of 57 for Barack Obama) didn't join anything. They were admitted, and only with the permission of a majority of the other states as expressed through a vote in both houses of Congress. Why shouldn't leaving require the same?

"Why shouldn't leaving require the same?" Look at only the second clause of the Constitution (I assume that you've read at least the first two) to find your answer:

Article. I. Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

If your argument was correct, then Representatives would have to apply to the federal government for permission to resign, before giving up their House seats, just because the Constitution specifies requirements for their admission.

You're an idiot - or maybe just the intellectual equivalent of the 'Crotch Bomber,' as I've noted before...

;>)

[Who is John Galt?]

But can a state be turned out of the Union against their will if the other states choose to end their assocaiation with them?

How would you describe the status of the State of Rhode Island and the Providence Plantations, after nine (NOT 13) of the State's fellow members seceded from the existing union and adopted our current Constitution?

Hmmm?

;>)

[Who is John Galt?]

http://avalon.law.yale.edu/18th_century/ratri.asp

Note the date (as compared to the date our Constitution was adopted by other States) - and the specific terms (please see the "3d" clause ;>)...

[Grunthor]

“The only reason he served one term is because he was a damned liar.

[Grunthor]

“And we wound up getting what we didn’t deserve, two terms of Clinton.”

Then maybe, just maybe, H.W. should have kept his word.

[Mrs. Don-o]

Thank you for that clear, concise argument.

[MrPiper]

lol. Man you guys just do not get it. The Feds would cut off everything. Power, water, access to ports, MONEY, seized all assets outside of Texas and close the roads to major cities

Uh,, and how would they do that when Alabama, Louisiana, Mississippi, Arkansas control those roads and join Texas to overthrow the communist dictator? Power and water??? get real, its here already and not supplied by big communist "O".

[beanshirts]

Wow what a thread, I haven’t had a chance to go and read through it all yet.

One of the important things to remember of nullification is that... as the US Constitution did not delegate the authority to rule or decide over the constitutionality of federal actions to the Federal Government (which of course includes the Supreme Court of the US)... those powers (like all other not enumerated in Article I, Section VIII of the Constitution) are reserved (as reaffirmed by the 10th Amendment) to the states.

Therefore, it’s ultimately up to the states to determine when federal actions are in violation of the Constitution and therefore null and void, not the Supreme Court (an arm of the Federal Government itself).

Even if one believes in the principle of judicial review regarding the Supreme Court... it merely serves as A check on the power of the legislative and executive branches of the Federal Government... it does not possess the exclusive right to the decide upon the constitutionality of Federal actions (either legislative or executive) as that authority was not addressed in the US Constitution and was therefore retained by the states upon ratification.

[MrPiper]

Nice words except that that does not abrogate the contract with the unites States of America

Uh,,,point of order... the USSA broke the contract first by passing laws that "the people" do not want. Said contract is NULL and VOID!

[mad_as_he$$]

Yup you go ahead there sparky. You are on to the path to freedom.

BTW one thing I am sure of is Louisiana can NEVER secede. The land was owned by the united states of America before it was a state.

[kittykat77]

Just let Mr. Zero appoint 2 new SCOTUS and repeal the first and second amendments and watch what happens....

Relax -- I suggest you look up what the process is to REPEAL constitutional amendments.

The SCOTUS cannot repeal constitutional amendments; only the people can repeal constitutional amendments.

The process for repealing an amendment is the same process as passing a constitutional amendment, and it involves all 50 states and usually takes a long time.

[MrPiper]

BTW one thing I am sure of is Louisiana can NEVER secede

Oh really,, just tell the folks in N.O. that they are going to have to start paying taxes instead of living off them!!!!!!!

[vigilo]

“I thought the civil war settled the question once and for all. The federal government rules supreme.”

The people, the states and the nation existed before the federal government. Why do people not understand this? The Federal Government is a creation, not a creator. The civil war settled nothing.