Posted on 01/22/2015 6:10:45 AM PST by reaganaut1
When the Tea Party wave arrived in 2010, it swept away much of the Republican Party's existing structure, and instituted a more populist approach. But as waves tend to do, it left some even older debris in its wake. "Nullification," the theory that states can invalidate federal laws that they deem unconstitutional, had its heyday in the slavery debate that preceded the Civil War, but it has found new currency since 2010.
The theory has never been validated by a federal court, yet some Republican officeholders have suggested states can nullify laws, including Senator Joni Ernst, who gave the GOP rebuttal to the State of the Union. Missouri legislators passed a bill that would have nullified all federal gun laws and prohibited their enforcement. My colleague James Fallows has described efforts by Republicans in Congress to block duly passed laws—refusing to confirm any director of an agency established by an act of Congress, for example—as a new form of nullification.
Now Mike Huckabee seems to be opening up a new front. The Supreme Court last week agreed to hear a case on whether same-sex-marriage bans are unconstitutional. There's no such thing as a sure bet with the Court, but many watchers on both sides of the issue believe the justices will strike down the bans. Some conservatives seem resigned to the fact that the fight is lost; not Huckabee. Here's what he told radio host Hugh Hewitt Tuesday:
One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one.
(Excerpt) Read more at theatlantic.com ...
Well, if the judges are appointed by a tyrannical President, and approved by a supine Congress, then you get a total tyranny, albeit one that takes time (a couple of terms) to get installed, given the average life expectancy of the judges.
The concept of nullification has been around since the founding. Mr Jefferson and Mr Madison wrote the Virginia and Kentucky resolution which nullified Mr Adam’s Sedition Act. So, if Mr’s Jefferson and Madison thought the process to be constitutional, who are we to argue?
Keep in mind that a federal court will probably never grant power back to the states since the concept of incorporation became prevalent. And hey, why give power back when you can use it as a huge baseball bat to beat the peasantry over the head at every turn?
So, based on the over whelming disadvantage that we are placed in by our “federal overlords,” we need some strong governors and state legislatures to take up the nullification process and begin whittling the general gov’t down to size (see enumerated powers in that little document known as “The Constitution of the United States of America”).
May The God of Heaven save the good people of the Untied States of America and may He judge in Holy Righteousness those who have led us into slavery.
So it seems that the only person the author favors engaging in nullification is this president. Through his refusal to enforce settled immigration law, to his defiant reversal of other laws through use of a phone and a pen, this president is an habitual nullifier. Only those who disfavor homosexual “marriage” are out of line.
I agree. When the States came together and formed the Union and the Federal government, they delegated certain very limited rights to it and kept the rest of the rights to themselves. Because the States created the Union and the Federal government, they are all parties to that compact, and in cases were there are many parties to a compact and no common judge, they each have the right to judge for themselves that the contract is being held to. The Federal government has no such power because it was created by the compact and is not part to it.
based on the over whelming disadvantage that we are placed in by our “federal overlords,” we need some strong governors and state legislatures to take up the nullification process and begin whittling the general gov’t down to size
Texas is about to swear just such a Governor in, Gregg Abbott. As Texas AG he has been doing a pretty damn good job of fighting nobama’s Gubmit. Timid he is not!
Could'a fooled me!
Federalist/Anti-Federalist ping.
In the fwiw department.
5.56mm
When judges write law what’s the point of a legislature? Why do we need to waste the money and effort? What is the point of voting, it means nothing if a judge says it means nothing. We are not a republic, we are not even a democracy at this point, more a fascist oligarchy.
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes." - Abraham Lincoln"[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal." - Thomas Jefferson
The Constitution, via the states and the people, DELEGATES certain ENUMERATED powers to the federal government. The basic presumption of the Constitution is if it's not a power delegated by the Constitution, then it doesn't belong to the feds. Whatever rights and powers the Constitution does NOT delegate to the feds or prohibit from the states or individuals, is retained by the states and the people. This is confirmed by the Ninth and Tenth Amendments which among many other Constitutional texts and understandings, the feds have pushed aside.
The Supremacy Clause (Art VI, Sec2) says that the Constitution and all U.S. laws MADE IN PURSUANCE THEREOF, are the Law of the Land. The Constitution does not support unconstitutional federal laws or acts.
Taken together, the Supremacy Clause and the presumptions of the Constitution as confirmed in the Ninth and Tenth Amendments supports state supremacy and the idea of state nullification of unconstitutional federal acts and decisions.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The Tenth Amendment.
State nullification of unconstitutional federal acts is simply the Tenth Amendment in action. It's time.
While this could be de facto nullification, it would likely not be called that, if for no other reason than to avoid the historical comparisons, and existing precedent.
Likely the argument would be both that incremental unconstitutionality is still unconstitutional, even if its parts had been declared constitutional over time; and that judicial *stare decisis* (Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed”) aka judicial precedent, *also* cannot produce unconstitutional decisions based on previously declared constitutional parts.
In short, that the verbatim constitution overrules executive, legislative, and judicial misinterpretation, interpolation, and excessive extrapolation.
The especially applies to previous cherry picking of minor clauses in the constitution, then using them to overrule the greater principles in the document.
The most abused of these minor clauses being the Interstate Commerce clause abused by FDR; and the General Welfare clause abused by LBJ. The two together essentially overruling the constitution, and building a corrupt palace on a pile of garbage.
Fascism has reached its zenith with its insistence that an elite gang of thugs can dictate and impose its will on the entire country. Based on nothing more than his personal politics Obama insists he has absolute authority. This does not reflect law or constitution. It is the actions of a tyrant bent on the destruction of this nation.
this is coming from a Marxist rag that considers Christie and McCain conservative
“I agree. When the States came together and formed the Union and the Federal government, they delegated certain very limited rights to it and kept the rest of the rights to themselves. Because the States created the Union and the Federal government, they are all parties to that compact, and in cases were there are many parties to a compact and no common judge, they each have the right to judge for themselves that the contract is being held to. The Federal government has no such power because it was created by the compact and is not part to it.”
You are SO Right!
“Although the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence, and by which it was, in fact, created; yet as the creature of that compact, it must be bound by it, to its creators, the several states in the union, and the citizens thereof. Having no existence but under the constitution, nor any rights, but such as that instrument confers; and those very rights being in fact duties; it can possess no legitimate power, but such, as is absolutely necessary for the performance of a duty, prescribed and enjoined by the constitution. Its duties, then, become the exact measure of its powers; and wherever it exerts a power for any other purpose, than the performance of a duty prescribed by the constitution, it transgresses its proper limits, and violates the public trust. Its duties, being moreover imposed for the general benefit and security of the several states, in their politic character; and of the people, both in their sovereign, and individual capacity, if these objects be not obtained, the government will not answer the end of its creation: it is therefore bound to the several states, respectively, and to every citizen thereof, for the due execution of those duties. And the observance of this obligation is enforced, by the solemn sanction of an oath, from all who administer the government.
The constitution of the United States, then being that instrument by which the federal government hath been created; its powers defined, and limited; and the duties, and functions of its several departments prescribed; the government, thus established, may be pronounced to be a confederate republic, composed of several independent, and sovereign democratic states, united for their common defence, and security against foreign nations, and for the purposes of harmony, and mutual intercourse between each other; each state retaining an entire liberty of exercising, as it thinks proper, all those parts of its sovereignty, which are not mentioned in the constitution, or act of union, as parts that ought to be exercised in common. It is the supreme law of the land, and as such binding upon the federal government; the several states; and finally upon all the citizens of the United States.... It can not be controlled, or altered without the express consent of the body politic of three fourths of the states in the union, or, of the people, of an equal number of the states. To prevent the necessity of an immediate appeal to the latter, a method is pointed out, by which amendments may be proposed and ratified by the concurrent act of two thirds of both houses of congress, and three fourths of the state legislatures: but if congress should neglect to propose amendments in this way, when they may be deemed necessary, the concurrent sense of two thirds of the state legislatures may enforce congress to call a convention, the amendments proposed by which, when ratified by the conventions of three fourths of the states, become valid, as a part of the constitution. In either mode, the assent of the body politic of the states, is necessary, either to complete, or to originate the measure
“Their submission to it’s operation is voluntary: it’s councils, it’s engagements, it’s authority are theirs, modified, and united. It’s sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of it’s functions, as such, in the most unlimited extent.”
Both excerpted from:
BLACKSTONE’S COMMENTARIES:
WITH
NOTES OF REFERENCE,
TO
THE CONSTITUTION AND LAWS,
OF THE
FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE
COMMONWEALTH OF VIRGINIA.
IN FIVE VOLUMES.
WITH AN APPENDIX TO EACH VOLUME,
CONTAINING
SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY
TO FORM A CONNECTED
VIEW OF THE LAWS OF VIRGINIA,
AS A MEMBER OF THE FEDERAL UNION.
BY ST. GEORGE TUCKER,
PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND
ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.
PHILADELPHIA:
PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,
NO. 17, SOUTH SECOND-STREET.
ROBERT CARR, PRINTER.
1803.
Abel Upshur, The Federal government: Its true nature and character
by BY ABEL P. UPSHUR
NEW YORK: VAN EVRIE, HORTON & CO., No. 162 NASSAU STREET. 1868.
(Abel Upshur served as Secretary of the Navy 1841-43)
good reply—I notice the enemy foreign or domestic has once again —in his State of the Obamaination speech—telegraphed what der Fuhrer expects his supreme Court to do concerning same sex marriage.
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