On Nullification
John Minehan printable version print page     Bookmark and Share
Fri Jun 21, 2013 at 09:23:23 PM EST
At the time his book, Nullification, appeared in 2010, I contacted author Thomas Woods, Jr., Ph.D. about the book.  Woods is as gracious as he is educated and he took the time to answer my questions in detail.  While Dr. Woods is a brilliant man, he is not a practicing lawyer and he did not see how ineffective nullification is as a legal theory.  

Given a Federal judicial system, a system of Federal prosecutors and Federal peace officers (as early as the 1790s including Federal Marshalls and customs officials and now including the FBI, ATF, DEA, SEC, IRS, Treasury and other agencies with enforcement arms) it is (and essentially always has been) impossible for a state to nullify a Federal law in the sense of preventing its enforcement.

Further, while Woods is absolutely correct in saying that an unconstitutional Federal law does NOT constitute the "supreme law of the land" under the Supremacy Clause ("This Constitution,and the Laws of the United States WHICH SHALL BE NADE IN PURSUENCE THEREOF; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." [EMPHASIS added]) nullification would seem to contradict the intent of the Supremacy Clause by allowing the states to unilaterally nullify Federal law, perhaps for reasons of "faction" or for passing advantage.

Indeed, the reason for adopting the Constitution and forming a more powerful Federal government was to increase the utility of the Union, for example, by preventing states from obstructing the flow of commerce from other states or keeping the states from fighting border fights (neither of which was unknown under the Articles in the 1780s), while avoiding the usurpations of Liberty that the Colonists perceived during the 1760s and 1770s under Lord North's government.  To do this, a powerful and centralized, but not totalitarian, Federal Government was required.  Nullification seems to defeat this purpose.

However, the evidence is that nullification was not thought clearly unconstitutional by the Framers.

While it is not set out in the Constitution , neither is it prohibited. Possibly, the Framers believed that the House being elected by the People while the Senate was selected by state legislatures would preclude these issues or that the right to petition the government would resolve these issues. Neither did, but James Madison's support for the nullification of the Alien & Sedition Act by Virginia and Kentucky in 1798 provides evidence that nullification was NOT considered per se unconstitutional, certainly not as an act of protest.

However, as described above, it remained strikingly ineffective in my view as a practicing attorney. It seemed, in the immortal words of Rocket J. Squirrel, "Again?  That trick never works!"

Then I realized that the virtue of nullification lies not in directly changing law but in marshalling consensus and demonstrating resolve.  It does not, it cannot change the law by itself, but heralds the political will to change the law or the state of political power

While the Alien & Sedition Act might have continued to be enforced by US Attorneys in Federal Courts in Virginia and Kentucky in 1798 and 1799, by the election of 1800 the electorate had turned against John Adams and the Federalists.

While President Jackson might have forced South Carolina to back down in the Nullification Crisis of 1832, Congress quickly mitigated the "Tariff of Abominations."

While the Supreme Court forced Wisconsin to back off from its nullification of the Fugitive Slave Law, that act of nullification demonstrated that the states of the north were no longer content to live in  (per Lincoln's phrase) "a house divided."

Nullification, like jury nullification which has tacitly existed in American common  law since Zenger's case in 1733,, is not law but a check on law.  Since it is equitable but lawless, and always runs the risk of anarchy but tends to moot "lawless order," it must be a last resort.  

Louis XIV said that artillery was "The Last argument of Kings."  If so, Jury nullification is the last argument of juries and nullification is the last argument of state legislatures.




Display:
http://www.tomwoods.com/blog/interview-with-a-zombie/

Woods and his opponents talk past each other.  Nullification does not change law (despite what Wood believes); it signals a change in consensus on law that heralds a change in law or political change.

by John Minehan on Fri Jun 21, 2013 at 10:51:36 PM EST


http://www.libertyclassroom.com/nullification/

by John Minehan on Fri Jun 21, 2013 at 11:33:14 PM EST

Some things Woods sees as "Nullification," are not generally seen as being Nullification in the classic sense.  

California essentially legalized (not decriminalized) medical marijuana about ten years ago.  

They didn't nullify Federal criminal law with regards to marijuana, which required the contraband to move in interstate commerce or wire or mail to be used in moving the contraband.  It was entirely possible to have purely intrastate traffic and that was clearly legal in California and did not involve nullifying Federal law on the subject, because that transaction did not implicate those laws.  

Where the contraband moved in interstate commerce, the Bush (and early on, the Obama) Administration continued to prosecute under the Federal statutes.  However, due to Obama Administration Policy, these Federal Laws are no longer enforced in California.  

It isn't strictly Nullification, but it is an example of how Federal law can be changed by a demonstration of an new consensus in an important state.

Also, where states are offered Federal money to opt into a Federal program and turn down the money also isn't nullification per se, but as with the Real ID Act and the 55 MPH coast to coast this kind of state resistance to Federal policies is more common and more successful than most people see initially.  

The demonstrated resistance to setting up the Exchanges and adopting the Medicaid Expansion, probably bodes very badly for PPACA, for that reason.  

by John Minehan on Fri Jun 21, 2013 at 11:48:33 PM EST




But only indirectly. Like when juries refused to convict bootleggers for the crime of making and selling illegal alcohol. Unfortunately the courts have been instructing juries to not ever consider nullification. As in the effects of a law on a particular person. - We are still plagued by the (some) Drug war since 1914 and it still remains. Until it is finally ended we will still see this low order "war" between states and the Federal govt.

by Nightgaunt on Mon Jun 24, 2013 at 04:53:49 PM EST


WWW Talk To Action


Thoughts on the Finale of the Finn Debacle
Now that Bishop Robert Finn has finally resigned his leadership of the Diocese of Kansas City-St. Joseph, Missouri -- here are some final thoughts......
By Frank Cocozzelli (2 comments)
DeVos and School Privatization Funders Backing Philadelphia Democratic Mayoral Candidate
The Betsy DeVos-led American Federation for Children (AFC) and its core funders have spent more than fifteen million dollars in Pennsylvania over the last......
By Rachel Tabachnick (1 comment)
Religious Right Rabbi: Christian Coalition Favorite Daniel Lapin Resurfaces
Back in the 1990s when I was regularly covering the antics of TV preacher Pat Robertson's Christian Coalition, one part of the job was......
By Rob Boston (0 comments)
Christian Right leaders escalate anti-LGBTQ threats
As marriage equality has advanced around the country, and the U.S. Supreme Court is set to rule on the issue in June, threatening language......
By Frederick Clarkson (1 comment)
Could Support for LGBTQ Rights Disrupt the Coalition of Jews and Evangelical Christian Zionists?
Some might say that the relationship between the conservative US Jewish community and Evangelicals is inviolable, with support for Israel being the cement that......
By Bill Berkowitz (1 comment)
Whine Festival: Second-Tier Religious Right Leaders Still Don't Like Marriage Equality
The U.S. Supreme Court will hear oral arguments tomorrow in Obergefell v. Hodges, the marriage equality case.In preparation for this, a sad collection of......
By Rob Boston (0 comments)
Whither the Christian Right in the Democratic Party?
You don't have to be a Hillary hater (and I'm not) to recognize that Clinton and other Democratic Party leaders have had long and......
By Frederick Clarkson (1 comment)
Bishop Robert Finn Resigns Leadership of St. Joseph-Kansas City Diocese
Bishop Robert W. Finn, the Opus Dei Bishop who was convicted by a Missouri court for failing to report suspected child abuse by a......
By Frank Cocozzelli (5 comments)
Two Overlooked Indiana Outcomes that Could Haunt the Christian Right
I think there are two underreported features of the fallout from Indiana that we should make sure do not get lost in the hoo......
By Frederick Clarkson (2 comments)
Terms, Definitions & Glossaries for Writing about the Religious Right
One of the challenges in writing about the Religious Right and what to do about it is the matter of terms and definitions. That's......
By Frederick Clarkson (0 comments)
President Obama Can Help Stop Religious Discrimination
Barry Lynn, the longtime executive director of Americans United for Separation of Church and State, recently posted an important essay at Huffington Post. In......
By Frederick Clarkson (0 comments)
Marriage Matters: Thoughts On The Recent Unpleasantness In Indiana
Last week I taped an interview with Sister Maureen Fielder, host of "Interfaith Voices," a popular radio program exploring religious issues that is carried......
By Rob Boston (1 comment)
The Campaign Against Pro-LGBTQ Denominations
The recent endorsement of marriage equality by the Presbyterian Church (USA) seemed like a good moment to discuss the campaign to divide and conquer......
By Frederick Clarkson (0 comments)
Upcoming Conference: From Abortion Rights to Social Justice
The 29th annual conference From Abortion Rights to Social Justice: Building the Movement for Reproductive Freedom will be held from April 10-12 at Hampshire......
By Frederick Clarkson (2 comments)
Why Is Bishop Robert Finn Still In Power?
As I reported in September 2014, Bishop Robert Finn, head of the Diocese of Kansas City-St. Joseph, Missouri has been under Vatican investigation to......
By Frank Cocozzelli (2 comments)

Demon Mammon?
An anthropologist from outer space might be forgiven for concluding that the god of this world is Mammon. (Or, rather, The Market, as depicted by John McMurtry in his book The Cancer Stage of......
daerie (0 comments)
Anti-Sharia Fever in Texas: This is How It Starts
The mayor of a mid-size Texan city has emerged in recent months as the newest face of Islamophobia. Aligning herself with extremists hostile to Islam, Mayor Beth Van Duyne of Irving, Texas has helped......
JSanford (0 comments)
Evangelicals Seduced By Ayn Rand Worship Crypto-Satanism, Suggest Scholars
[update: also see my closely related stories, "Crypto-Cultists" and "Cranks": The Video Paul Ryan Hoped Would Go Away, and The Paul Ryan/Ayn Rand/Satanism Connection Made Simple] "I give people Ayn Rand with trappings" -......
Bruce Wilson (10 comments)
Ted Cruz Anointed By Pastor Who Says Jesus Opposed Minimum Wage, and Constitution Based on the Bible
In the video below, from a July 19-20th, 2013 pastor's rally at a Marriott Hotel in Des Moines, Iowa, Tea Party potentate Ted Cruz is blessed by religious right leader David Barton, who claims......
Bruce Wilson (0 comments)
Galt and God: Ayn Randians and Christian Rightists Expand Ties
Ayn Rand's followers find themselves sharing a lot of common ground with the Christian Right these days. The Tea Party, with its stress on righteous liberty and a robust form of capitalism, has been......
JSanford (3 comments)
Witchhunts in Africa and the U.S.A.
Nigerian human rights activist Leo Igwe has recently written at least two blog posts about how some African Pentecostal churches are sending missionaries to Europe and the U.S.A. in an attempt to "re-evangelize the......
Diane Vera (1 comment)
Charles Taze Russell and John Hagee
No doubt exists that Texas mega-church Pastor John Hagee would be loathe to be associated with the theology of Pastor C.T. Russell (wrongly credited with founding the Jehovah's Witnesses) but their theological orbits, while......
COinMS (0 comments)
A death among the common people ... imagination.
Or maybe my title would better fit as “Laws, Books, where to find, and the people who trust them.”What a society we've become!The wise ones tell us over and over how the more things......
Arthur Ruger (0 comments)
Deconstructing the Dominionists, Part VI
This is part 6 of a series by guest front pager Mahanoy, originally dated November 15, 2007 which I had to delete and repost for technical reasons. It is referred to in this post,......
Frederick Clarkson (1 comment)
Republican infighting in Mississippi
After a bruising GOP runoff election for U.S. Senator, current MS Senator Thad Cochran has retained his position and will face Travis Childers (Democrat) in the next senate election. The MS GOP is fractured......
COinMS (5 comments)
America's Most Convenient Bank® refuses to serve Christians
Representatives of a well known faith-based charitable organization were refused a New Jersey bank’s notarization service by an atheist employee. After inquiring about the nature of the non-profit organization and the documents requiring......
Jody Lane (5 comments)
John Benefiel takes credit for GOP takeover of Oklahoma
Many of you know that Oklahoma has turned an unrecognizable shade of red in recent years.  Yesterday, one of the leading members of the New Apostolic Reformation all but declared that he was responsible......
Christian Dem in NC (2 comments)
John Benefiel thinks America is under curse because Egyptians dedicated North America to Baal
You may remember that Rick Perry put together his "Response" prayer rallies with the help of a slew of NAR figures.  One of them was John Benefiel, an Oklahoma City-based "apostle."  He heads up......
Christian Dem in NC (5 comments)
Mississippi Religious Freedom Restoration Act.
Yes, that's right. We have totally lost our religious freedom in Mississippi and it must be restored by our legislators. ......
COinMS (2 comments)
Bill Gothard accused of harassing women and failing to report child abuse
Surprised no one's mentioned this, but one of the longest-standing leaders of the religious right is in a world of trouble.  Bill Gothard has been active in the fundie movement for over half......
Christian Dem in NC (2 comments)

More Diaries...




All trademarks and copyrights on this page are owned by their respective companies. Comments, posts, stories, and all other content are owned by the authors. Everything else 2005 Talk to Action, LLC.