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


On Christmas Day, in the Morning
In recent years at Christmastime, I have posted a response to the preposterous-but-malevolent claims broadcast on Fox News and elsewhere that there is a......
By Frederick Clarkson (2 comments)
Hallelujah, Mike Huckabee, Hallelujah
Fox News personality Mike Huckabee had a defining moment in the wake of the Newtown massacre. One that as we enter the 2016 presidential......
By Frederick Clarkson (2 comments)
Moses And Michele: Departing Member Of Congress Spreads More Misinformation
The Religious Right's Moses fixation continues to grow.As you might recall, the Texas State Board of Education recently demanded social studies textbooks that highlight......
By Rob Boston (0 comments)
Christian Right Silent about Bob Jones U Sex Abuse Report
One of the deep scandals of our time, and apparently times past, is that sex abuse, particularly of children, has been so tolerated and......
By Frederick Clarkson (2 comments)
Boot These Bigoted Bans: Movement Seeks To Remove Anti-Atheist Bias From State Constitutions
Eight states still have provisions in their constitutions that either bar atheists outright from holding public office or require people to believe certain things......
By Rob Boston (1 comment)
James Madison and Tax-Supported Chaplains
In light of former Sen. Rick Santorum's recent silly declaration that “the words ‘separation of church and state’ is not in the U.S. Constitution,......
By Chris Rodda (0 comments)
Death to Obama; Death to "Homos"; What's Next?
When the Obama administration was young, threats against the president were common, and sometimes quite public. One notorious such incident was that of Rev.......
By Frederick Clarkson (0 comments)
Rick Scarborough's America
When Stand Up Sunday was convened by Mike Huckabee in Houston it was to feature the leading spokesmen for the Religious Right agenda.  The......
By wilkyjr (0 comments)
The Republican Diversity Program... Is Working
I don't usually write directly about electoral politics, but sometimes I bring an outsider's perspective to how the inside looks to some of the......
By Frederick Clarkson (1 comment)
American Christian Right Leaders in Rome
The remarkable and growing alliance between conservative Catholicism and protestant evangelicalism was on prominent display at a recent event at the Vatican. My colleague......
By Frederick Clarkson (0 comments)
Religious Supremacism on the Rise Against Marriage Equality
This is a crosspost of an op-ed I recently published at LGBTQ Nation.  -- FC Christian right undermines marriage equality with religious supremacism FREDERICK......
By Frederick Clarkson (0 comments)
The Author of Loathing Lincoln Explains Why Some on the Christian Right Loathe Lincoln
One under-reported result of the 2014 elections was the rise of Neo-Confederate politics in the U.S. This included the election of unabashed apologist for......
By Frank Cocozzelli (2 comments)
A Catholic Theocracy Grows in Florida
Catholic Right pizza mogul Tom Monaghan and his Ave Maria School of Law are back in the news.  Journalist Eleanor Bader has a new......
By Frederick Clarkson (6 comments)
Mississippi Madness: Group Wants To Designate An Official Religion
A group in Mississippi is collecting signatures for a ballot initiative to change the state constitution in several ways.The proposal put forth by the......
By Rob Boston (5 comments)
I Stand Sunday Part 2
I Stand Sunday took place in Houston, Nov. 2, 2014, motivated by the cities' mayor who subpoenaed sermons from local pastors.  The host church......
By wilkyjr (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 (2 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 (4 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 (1 comment)
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)
Eugene Delgaudio may lose his day job as Virginia county supervisor
Surprised no one's noticed this, but one of the nation's most virulent homophobes is in a fight to keep his day job.  Eugene Delgaudio is best known as the head of Public Advocate......
Christian Dem in NC (0 comments)
Starkville Becomes First City in Mississippi to Pass Resolution Recognizing LGBT Residents
This caught me by surprise. I guess times are a changin in Dixieland. ------------------------------------- Cross posted from the HRC blog. Starkville Becomes First City in Mississippi to Pass Resolution Recognizing LGBT Residents January 21,......
COinMS (0 comments)
Robert Knight: Running against evolution could potentially be a winner for the GOP
In one of the starkest instances yet of how far gone the religious right is, one of its leading activists thinks that he's found another potential wedge issue that could drive more people into......
Christian Dem in NC (2 comments)
First Catholic official convicted in child sex abuse scandal has conviction overturned
Last year, Monsignor William Lynn, the Archdiocese of Philadelphia's secretary for clergy, was convicted of reassigning a priest whom he knew had molested a young boy to a parish that had a school attached......
Christian Dem in NC (0 comments)
Quotes From Sarah Palin 'War on Christmas" Book v. Quotes From 1920s Anti-Jewish Propaganda
The point of this comparison is not to cast Sarah Palin as a Nazi. Rather, my intent is to underline uncomfortable similarities between contemporary "war on Christmas" talking points propagated by elements of the......
Bruce Wilson (0 comments)
Francis sets up commission on how to deal with pedophile priests
Late yesterday Pope Francis announced--apparently after some prodding--that he will set up a panel to advise him on how to deal with child abuse by priests. The announcement was a forthright acknowledgment by the......
Christian Dem in NC (0 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.