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.
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.
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.
Tenth Amendment anyone?
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.
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.
Some states tried that “nullification” thing in the 1860s. Federal government didn’t take it well, and the states dropped the subject.
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?
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.
They gotta.
With this SCOTUS bunch—Yeah, you too Roberts—ANYgoddamnTHING Barry wants will be A-OK.
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.
“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.
The other effort . . . Ping!
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
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
Aren’t the pot laws in Colorado and Washington a form of nullification?
“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.” —Justice John Marshall, Gibbons v. Ogden, 1824.
But after the pro-big federal government Progressive Movement succeeded in stealing control of the Senate from state legislatures, giving control of the Senate to low-information voters who were probably clueless about Congress's limited power to lay taxes, the Sentate became the enemy of the state legislatures. This is because crooks got themselves elected to Congress to "legally" steal people's money, arguably state revenues, in the form of constitutionally indefensible federal taxes.
The ninth and tenth amendments to The Constitution, as well as the supreme court decision that stated that laws against the constitution are a nullity, cement the right of the States to make their own determination and act accordingly.
I suppose the fedgov could sue the States...
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.