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 ...
A typo, but it sings! That is what it has devolved into.
It wasn’t a typo...
I basically agree. But I wonder if the pirates who have now taken over DC had to wait for the modernization of broadcast electronic communications with its vast viewership before they could deceive low-information voters in volume.
If we ever get that Amendments Convention, this is the kind of amendment I would like to see proposed.
Exactly..
Equal shares in the Senate, but proportional shares in the House and the Executive.
Given that, the states have sold their equal shares to the national parties. The national parties are unequally voting those shares, because the Democrats are ruthless and the Republicans are feckless.
Following the metaphore of shares, the Democrats are risk-taking and the Republicans are risk-averse. Can you guess who is profiting the most from that investment?
-PJ
Boot licker. My ancestors were not "fringe kooks". So < expletive deleted > you.
Exactly. The Founders original design was brilliant. They limited the administrative powers to be exercised by the federal organ outside its physical area of jurisdiction via enumeration while simultaneously giving it full, local, municipal authority over the area inside it.
Unfortunately, the prevalent idea today is that everyone in the nation is subject to everything any branch federal government does.
Yes IMO. But I’m a big states righter. There was a bill in Congress fairly recently to uniformly insititute reciprocal CC in all states. My US Rep Rob Woodall voted again’st it and I agreed with him. He says its better for the individual states to handle their own reciprocity or else they are ceding power to the Feds that they cannot get back. GA has reciprocal agreements with 26 states and working with others to add to the list. I’m OK with that. Others may disagree.
Many people point to the over-reach of the Commerce Clause as the cause for this, but I think that today, it is the over-reach of the 14th amendment "equal protection" clause that is the culprit.
The federal government is using "equal protection" to make the states irrelevant, citing the "unfairness" of people in one state being subjected to more restrictive laws than people in another state.
This naturally leads to the choices made in the most liberal states being forced onto the citizens of all the other states. Couple this with the "full faith and credit" clause of Article IV, and you have a bludgeon that the liberals wield to force the whole nation to comply with gay marriage, abortion, gun control, education policy, and any other Leftist agenda item that liberals can think of.
-PJ
Agreed. The most disturbing thing to me, however, is that I've found no Constitutional basis for the existence of a '14th Amendment citizen' as contemporary government erroneously applies the concept today.
Only in the time frame of it's writing and for the explicit purpose of engendering the freed slaves with citizenship, (because at that point, they had none) is the 14th Amendment remotely Constitutional.
IMO, the deconstruction of our country is based on the legal fallacy that the 14th operates in perpetuity...something it could no more do than the grandfather clause could be applicable today.
Nothing will make a judge angrier than talk of nullification. The black robed god will not be mocked.
Listen speed bump, you are a fringe kook. There is no such thing as nullification. Try it with your next run-in with the law. Tell they judge you nullified the law. See what happens, speed bump.
Just change it to "I am a boot licking Federal butt boy" and be done with it.
I was just observing historical precedent, not indulging my own opinion.
If we’re gonna do it, have no delusions about it being easy or respected.
...being necessary to the security of a free State...
The logic flows from the Preamble.
Note that it is the People's liberty that is being secured. Also note that the only places where "secure" and "security" are mentioned are the Preamble, the 2nd amendment, and the 4th amendment protection of being secure in one's person, houses, papers, and effects.
We the People of the United States, in Order to... secure the Blessings of Liberty to ourselves and our Posterity...
The 9th and 10th amendments reiterated the point, and the 2nd amendment backs it up with the method of enforcement.
Note that the 1st amendment contains the desired approach "to petition the government for a redress of grievances."
Today, the government has found a way to deny anyone who wishes to petition for redress. It's called "standing," and apparently, nobody has it anymore. And being secure in one's person, houses, papers, and effects, has also recently fallen by the wayside.
If this keeps up, the only method left to the People to maintain "the security of a free state" for "Ourselves and our Posterity" will be the 2nd amendment way.
-PJ
I already pointed that out in first post. Winner goes to the most murderous.
But the People do.
"Winner goes to the most murderous" is true if nobody blinks in the game of brinksmanship that Hamilton wrote of in Federalist 46. It happened in the civil war when it was the states that seceded. It didn't happen in the Cuban Missile Crisis when Dean Acheson famously said "By that time, we hope that cooler heads will prevail."
But we know that Obama does not back down. He doesn't have the ego for it. His first and only inclination is to double-down when backed into a corner.
And as I wrote above in my deconstruction of Hamilton's Federalist 46, Obama is itching to incite rebellion. I do believe that the win will go to Obama the Nobel Peace Prize winner, which is why I support the Article V convention approach to sidestep the federal government.
-PJ
Can you guess who is profiting the most from that investment?
We don’t need a third party...
What we need is a Second Party..
I agree with Judge Andrew Napalitano. The states formed the federal government not the other way around. If the states want to nullify a federal law that is not enshrined in the Constitution, they can. And it doesn’t require a revolution to do it.
No. “shall not be infringed” means that the states don’t have the right to infringe (i.e. limit or restrict in any way whatsoever).
Madison wrote Federalist #46, not Hamilton.
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