Struggling With Nullification

Our American Constitution ^ | February 3rd, 2014 | Rob Natelson

[Jacquerie]

Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. IOW, it depends on your premises.

Unfortunately, people often discuss/debate, and attack each other over—the merits or demerits of nullification without making their premises clear. The result is quarreling among people who are fundamentally on the same side.

The Constitution has been characterized as:

* A compact (i.e., contract) to which only the states are parties, by which the states granted power to federal officials. This is the pure interstate compact theory, expressed in Jefferson’s 1798 Kentucky Resolutions.

* A “compound” compact, created by the people but to which the states are parties. This was apparently Madison’s post-ratification view (see, for example, the equivocal wording about the nature of the Constitution in his Notes on Nullification), and may have underlain his 1798 Virginia Resolution.

* A popular grant: that is, a grant of power from the people—mostly to federal legislators and officials, but in some cases to state legislative authorities (as in the Time, Places, and Manner Clause) or to state legislators (as in Article V). This view was expressed by some of the seven state legislatures that formally repudiated the Kentucky and Virginia Resolutions. It also was Chief Justice John Marshall’s conclusion in the famous case of McCulloch v. Maryland (1819).

You can make the best case for narrow-definition nullification as a constitutional prerogative if you adopt the first of the three alternatives. The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.

[Jacquerie]

A bit long, but worthwhile read.

[T-Bird45]

Agreed, it was a worthwhile read and I should probably do so multiple times before attempting much of a response or reaction. On first reading, though, I’d say the article appears well-sourced and the author supports his choice of Constitutional construct, the people holding and granting all rights. The bits of narrative from known players of the time, like Patrick Henry, make me believe we moderns have an incomplete understanding of the contentious nature of the nation’s founding.

[Texas Mulerider]

"I rise, Mr. President [John C. Breckinridge], for the purpose of announcing to the Senate that I have satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States...I hope none who hear me will confound this expression of mine with the advocacy of the right of a State to remain in the Union, and to disregard its constitutional obligations by the nullification of the law. Such is not my theory. Nullification and secession, so often confounded, are indeed antagonistic principles. Nullification is a remedy which it is sought to apply within the Union, and against the agent of the States. It is only to be justified when the agent has violated his constitutional obligation, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other States of the Union for a decision; but when the States themselves, and when the people of the States, have so acted as to convince us that they will not regard our constitutional rights, then, and then for the first time, arises the doctrine of secession in its practical application." - Jefferson Davis, Jan. 21, 1861

[Pollster1]

From the article: "Finally: Once the pure state compact theory falls, it is very hard to justify nullification (narrowly defined) as a constitutional remedy. It remains instead a remedy reserved by natural law for when the Constitution has wholly failed—in other words, in situations justifying revolution."

I fundamentally disagree. Nullification by the elected representatives of the people within individual states is an entirely appropriate remedy for mild or moderate federal violations of a Constitution in which the people delegated specific and enumerated powers to a federal government. The breach of one aspect of a contract must have a constitutional remedy before the entire contract has wholly failed, or an irretrievably broken status becomes inevitable. Nullification of individual unconstitutional federal laws is the natural and proportionate remedy to such illegal federal actions.

[Usagi_yo]

No, no formal right of nullification. The bark is louder than the bite as there is no bite.

It’s a public relations, propaganda, protest tool. Just another squeaky wheel.

Then again as in all things like this, it all comes down to who’s willing to be the more murderous.

[jmaroneps37]

Tenth Amendment anyone?

[RKBA Democrat]

I agree, this is a good read. I also agree that there is no state right to nullification in the sense that a state can invalidate a federal statute. It can, however, refuse to enforce it. That’s no small thing as the Federal government usually relies on the states to do its work. That’s the reason in my view why the CO and WA marijuana laws are being tolerated: the Feds don’t have the ability to enforce their laws anyway. So they’re posturing and calling it an experiment when in reality there isn’t much they can do about it anyway.

Something to keep in mind.

[Mechanicos]

Amazing, an entire analysis of nullification that did not once mention what the Constitution itself says relating to the State’s reserved powers outlined in Amendments 9 and 10.

After all that twisting and turning the end result per this author is the 10th amendment is void and the states have no authority to pass laws nullifying bad federal laws. Which is absolute garbage.

[ctdonath2]

Some states tried that “nullification” thing in the 1860s. Federal government didn’t take it well, and the states dropped the subject.

[Macoozie]

"natural and proportionate remedy to such illegal federal actions."

Very nicely done, you old WordSmith you!

So, so do we call for revolution if our gas tax is too high? Fighting within the system to make necessary corrections is a citizens duty.
While the article is well thought out and constructed, the author embraces rampant lawlessness when a "proportionate remedy" is clearly available.

[Pollster1]

Some states tried that “nullification” thing in the 1860s. Federal government didn’t take it well, and the states dropped the subject.

We need to be more patient with such attempts. Just has the far left has been working toward full communism for over a century without giving up, we need to work toward freedom, for generations if necessary, and even after FedGov and the far left react poorly toward our initial efforts.

[Pollster1]

So, so do we call for revolution if our gas tax is too high? Fighting within the system to make necessary corrections is a citizens duty. While the article is well thought out and constructed, the author embraces rampant lawlessness when a "proportionate remedy" is clearly available.

No, but we do (continuing your somewhat creative gas tax example) make it illegal to assist FedGov in collecting that gas tax within the state and make it illegal for any FedGov representative to attempt to enforce the gas tax law within the state. Good luck to FedGov figuring out what to do if their agents risk arrest and are guaranteed zero cooperation within state boundaries, and if state residents are prohibited by state law from reporting gasoline sales figures to FedGov.

[oincobx]

The Fed gov response to withholding gas tax revenue would be to withhold money for highways. I don’t think you will find too many state legislators willing to give that up.

[DoodleDawg]

The basic idea is that if other states have broken the compact by letting their agent (the federal government) run amok, then aggrieved states (compacting parties) have the right to protect themselves.

What if the other states say, "We haven't broken anything. You're wrong, the compact is intact, and your actions aren't Constitutional." Who gets to decide who is right?

[Paine in the Neck]

Tenth Amendment anyone?

Precisely. This is an argument over who decides where the boundaries of authority recognized in 10A lie. That only one party to a dispute over those boundaries is permited to assert their power is nonsense and would be recognized as such by the Framers who so rightly valued checks and balances. Nullification is the States side of the 10A argument. The 17th Amendment, by eliminating the States' direct voice in the Federal government, has made nullification even more important.

I keep meaning to make up some tee shirts.

[yefragetuwrabrumuy]

Importantly, except for taxation, states can “nullify without nullification”, in many circumstances.

Most recently, the Arizona legislature is fighting back against the obscenity of the surveillance state, simply by passing a law that any evidence gained from such illegitimate practices cannot be used in state courts. It doesn’t matter if the feds gather it, and give it to state or local police agencies. Unless it is derived from a written warrant, it is not evidentiary.

Another good example is for a state to pass a law that there can be no direct cooperation between local police authorities without the express involvement and permission of the county Sheriff. While right now this includes just police activities, in the future it should be expanded to include “gifts”, often RICO-based, of money and equipment direct from the feds to local police departments.

Importantly, a good argument can be made that federal agents in a state must abide state laws, that they have no inherent immunity from prosecution for committing unlawful acts, as individuals, *or* under the color of authority.

[Flintlock]

They gotta.

With this SCOTUS bunch—Yeah, you too Roberts—ANYgoddamnTHING Barry wants will be A-OK.

[nmrancher]

What is not stated is that the Constitutional Convention had originally written the Preamble to read “We the States of...” and then the states present at the Convention were listed. The Preamble was changed to read We the People prior to submission to the Continental Congress. I think the original Preamble shows intent.
Also, the states ratified the Constitution, not the people by popular vote, although the people voted for delegates attending the state ratification conventions.
The states also ratify amendments to the Constitution. The states elect the President through the electoral college.
I maintain that the states have power to nullify unconstitutional laws and court decisions as in the Kentucky Resolution of 1798.

[Georgia Girl 2]

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

These are the enumerated powers of the Federal Government.

[nmrancher]

Many states passed legislation against Kelo decision in support of the 5th amendment right to just compensation for private property taken for public use.