Posted on 02/08/2014 4:37:09 AM PST by 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.
(Excerpt) Read more at constitution.i2i.org ...
Exactly! It’s not nullification when congress and the federal courts were never authorized to create the laws at issue. It’s enforcement.
Not true. Early state constitutions were legislative acts. By the mid-80s some were rewritten and ratified by conventions of the people. The Framers recognized the higher-order nature of popularly ratified constitutions and incorporated that method in their draft constitution.
Tuesday August 6, 1787
In Convention.
Mr. John Francis Mercer from Maryland took his seat.
Mr. RUTLIDGE delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member:
"We the people of the States of New Hampshire, Massachussetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity."
Agree. I bought a copy of David Robertson's record of the VA ratifying convention for that very purpose. What a food fight! A little known factoid is that uber Anti-Federalist Patrick Henry had great admiration for the British system of king, lords and commons.
I rarely invoke the Federalist/Anti-Federalist ping list, but this is an exceptional article.
OK, how about this scenario. Congress passes a law saying that if you have a concealed carry permit in one state then you are free to carry in all the states in the Union that allow it. Massachusetts says that it is federal overreach and that the 10th Amendment allows them to decide concealed carry laws in their state. They will not allow that law to be enforced and that only people with valid Massachusetts permits can have a handgun in their car. Are they right?
The best way to nullify unconstitutional laws is to stop them when they are still in congress, when they are still just bad ideas. The way to accomplish that is to return to the constitution of our framers, re-federalize the government, bring the states back to the senate.
Interest v. interest, horizontal and vertical division of power was the Framers’ design to secure our freedom. That they got it right is reflected in the sorry state of our freedoms.
I am thoroughly enjoying the state resistance movement. Despite the dinosaur media’s attempt to ignore it, there is widespread revulsion with our consolidated government in DC.
Our determination to fight oppression will be better spent if more effort is devoted to an Article V amendment convention than nullification.
A pity that we have two states willing to refuse to enforce the federal drug laws, but it has never occurred to any state to refuse to obey Roe v. Wade, Doe v. Bolton, or Casey vs. Planned Parenthood.
Truthfully, I look to conservative majorities in both houses and the office of the POTUS, to get enough change. Just a constitutional convention may not be enough. It is time for the removal of the metastatic cancer, and that is so extensive it needs to be done from within.
The office of the POTUS must be strongly reduced in power and arrogance. The judiciary needs major organizational reforms and repurposing. Congress also needs a major adjustment to how it does business.
And then the fun really begins. It is a matter of percentages. By what percentage should the federal government be reduced in size? 10%? 30%? 50%? What agencies should be eliminated, and which should be downsized?
At the same time, mostly because it is faster, congress will pass constitutional amendments for both a balanced budget amendment and a presidential line item veto, then send them to the states for consideration. Right now, the states are very close to holding a convention over the balanced budget amendment, so congress would do this with the idea of approaching it from the other direction, which many consider to be a safer option.
Miles to go and so very much to do.
I see re-federalizing the consolidated government as the keystone to reform. Without it, little of substance can be accomplished. With it, all is possible, including the overthrow of a court that long ago not only entered the political arena, and dropped all pretense of judicial legitimacy, but has increasingly inserted itself into the social compact, the civil society, as well. There is a fetid crust of anti-American Scotus decisions, dozens of them, that must be repealed in order to restore republican liberty. That cannot happen until the states once again consent to judicial nominees.
The other effort . . . Ping!
A whole lot of educating needs to be done,
but I am unfortunately not blessed with a teacher’s heart or mentality.
When you explain a problem and lay out a solution to the problem,
some people just still can not see it, or refuse to see it.
I have a low tolerance for the hard-heads and the stubborn.
Also,
I would not be surprised to find there are “operatives” at work.
One thing that needs no second thought is the fact that we are facing a momentous election this year and we should put all the effort we can in supporting candidates who will begin the cleaning of the beltway cesspool.
The author makes the common mistake of using Madison's letter against Nullification/Secession to Edward Everett as a basis for his conclusions.
While the letter to Everett made discussed the question whether or not States were obligated to adhere to those constitutional edicts they had previously agreed to, it did NOT address whether or not a State could take action if it felt the federal government was abusing its power for political purposes.
In his letter to Everett the previous April, Madison penned this interesting postscript:
P.S. No notice has been taken in the inclosed paper of the fact, that the present charge of usurpations & abuses of power, is not that they are measures of the Govt. violating the will of its Constituents, as was the case with the Alien & Sedition Acts, but that they are measures of a Majority of the Constituents themselves, oppressing the Minority thro’ the forms of the Govt. This distinction would lead to very different views of the topics under discussion. It is connected with the fundamental principles of Rep: Govt: and with the question of comparative danger of oppressive Majorities from the Sphere and Structure of the General Govt. and from those of the particular Govts.
James Madison to E Everett, April 1830
Thank you for weighing in. That ping list has some of the best FReeper brainpower at this site.
I sense in this statement a fundamental break from the author.
The author speaks of the Constitution as a grant of powers from the people, but you write of a delegation of power to the federal government. Is this a distinction worth discussing?
In a delegation, one is assumed to retain their power, but is allowing another to exercise it under their authority.
In a grant, one is ceding ownership of it to another for them to control as they please.
Can a delegation be revoked and powers returned? Can a grant be revoked and returned?
-PJ
For what it's worth, I'm reposting a deconstruction of mine of Federalist 46 that I posted in October 2013.
It appears that Federalist 46 has been obsoleted by the 17th amendment.
I don't think is the case anymore. Federal handouts have made people more beholden to the federal government. In fact, liberals are at war with state governments. Take Gay Marriage as an example. They pit one state against another, taking an advantageous result in one state to the federal level to force it upon the rest.
Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow.
People have become more partial to the federal government, but not because of better administration. They're being bought by taxpayer monies approved by a Congress that no longer feels beholden to their respective states. The states have much to fear, because of federal encroachment of federal power.
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.
The 17th amendment has upended this assumption. The roles have been reversed.
It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States.
And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations?
Because of the 17th amendment and the need for raising campaign funds, Senators are now more interested in the "collective welfare of their particular" party, not their state, because it is the party that drives much of their campaign financing. All of the liberal agenda in Washington was driven by party and national special interest, not state issues. States are pawns, a means to a national agenda end.
Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.
We saw this play out in Arizona over their immigration policy. Holder sued Arizona to prevent them from enforcing state immigration laws that the federal laws already permitted them to do.
On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
We saw this play out with the recent federal government shutdown and retaliation of closing national parks in all the states. The militarization of civil police are becoming much more intimidating to the average citizen of a state who is considering civil unrest.
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.
This is exactly what the Article V movement is trying to accomplish. Rally the states around the idea of taking back control of the federal government through exercising their Article V power to propose the amendments of change that Congress is unwilling to.
But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.
We would have to see if this plays out. Would the whole of the people align with the states in support of an Article V convention, or would they align with the Congress and the President to maintain the status quo? There's the rub.
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
This reads like a Nostradamus prophecy. It is exactly what has happened over the last decade, most recently accelerated.
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence... Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
Here is a gem for the 2nd Amendment people. It is clear from this passage that the 2nd amendment was specifically intended to prevent a tyrannical government from forming, for fear of an armed populace.
And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
The argument here is that the people will rise up in arms against a federal government that encroaches beyonds its limited, enumerated powers. And knowing that, it would be madness for the federal government to even try to engage with force, knowing that death and destruction that would naturally follow. Given the stockpiling of hollow-point bullets, and military anti-mine personnel carriers now being distributed across the United States, I think that our government is actually planning to do something just like this.
What I see is a discussion of brinksmanship and inevitable civil war instigated by a federal government that refuses to back down to states that push back on encroachment.
On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.
I see signs that our current federal government is planning for exactly such a crisis, and is actively trying to incite it.
The proponents of an Article V convention is an attempt to avoid a direct head-to-head conflict with the federal government by side-stepping them and taking a parallel path to making Constitutional change.
-PJ
We hope to have it in book form one of these days.
If I had your defeatist boot licking attitude I would have blown my own head off long ago. What keeps a sniveling weasel motivated? tell us?
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