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


Ross Douthat's Hackery on the Seemingly Incongruous Alliance of Bannon & Burke
Conservative Catholic writer Ross Douthat has dissembled again. This time, in a February 15, 2017 New York Times op-ed titled The Trump Era's Catholic......
By Frank Cocozzelli (1 comment)
`So-Called Patriots' Attack The Rule Of Law
Every so often, right-wing commentator Pat Buchanan lurches out of the far-right fever swamp where he has resided for the past 50 years to......
By Rob Boston (0 comments)
Bad Faith from Focus on the Family
Here is one from the archives, Feb 12, 2011, that serves as a reminder of how deeply disingenuous people can be. Appeals to seek......
By Frederick Clarkson (5 comments)
The Legacy of George Wallace
"One need not accept any of those views to agree that they had appealed to real concerns of real people, not to mindless, unreasoning......
By wilkyjr (6 comments)
Betsy DeVos's Mudsill View of Public Education
My Talk to Action colleague Rachel Tabachnick has been doing yeoman's work in explaining Betsy DeVos's long-term strategy for decimating universal public education. If......
By Frank Cocozzelli (6 comments)
Prince and DeVos Families at Intersection of Radical Free Market Privatizers and Religious Right
This post from 2011 surfaces important information about President-Elect Trump's nominee for Secretary of Education, Betsy DeVos. -- FC Erik Prince, Brother of Betsy......
By Rachel Tabachnick (21 comments)
Religious Freedom is Not Just for Christian Conservatives
Religious freedom is one of the central issues of our time. Arguably, it a central issue in any time, and every time, at least......
By Frederick Clarkson (2 comments)
Dallas and its Historic Connection to the Religious Right
There has been a recent rash of demonstrations outside of the famous First Baptist Church in Dallas, Texas.  The current pastor appears to be......
By wilkyjr (3 comments)
Fr. Frank Pavone Claims the 2016 Coughie Award!
Yes, folks it's time for the presentation of the annual Coughlin Award. As always, the competition was fierce. But this year, the gold......
By Frank Cocozzelli (1 comment)
Christmas Broadcasting Traditions
It is time to once again note the preposterous-but-malevolent claims that there is a War on Christmas. The annual revival of this repulsive anti-Semitic......
By Frederick Clarkson (5 comments)
Steve Bannon: Alt-Right Anti-Catholic or Political Opportunist?
In March 2016 Trump campaign strategist and CEO Steve Bannon made a comment that could be construed as being blatantly anti-Catholic. He accused the......
By Frank Cocozzelli (4 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)
How The Election of Trump Made My Life Easier
I might be one of a select few who didn't vote for Donald but would have to say Trump's election made my life easier...I......
By wilkyjr (10 comments)
The Bakke Plot To "Infiltrate" Secular Institutions
Back in 2012-2014 I did a lot of writing and research on The Gathering, the yearly meeting of elite evangelical right philanthropists who collectively......
By Bruce Wilson (1 comment)
The Term "Alt-Right" is All Right
There is a misguided effort underway to not use the term "alt-right."  The effort, currently led by the Center for American Progress, claims that......
By Frederick Clarkson (6 comments)

Fear
What I'm feeling now is fear.  I swear that it seems my nightmares are coming true with this new "president".  I'm also frustrated because so many people are not connecting all the dots! I've......
ArchaeoBob (4 comments)
"America - love it or LEAVE!"
I've been hearing that and similar sentiments fairly frequently in the last few days - far FAR more often than ever before.  Hearing about "consequences for burning the flag (actions) from Trump is chilling!......
ArchaeoBob (2 comments)
"Faked!" Meme
Keep your eyes and ears open for a possible move to try to discredit the people openly opposing Trump and the bigots, especially people who have experienced terrorism from the "Right"  (Christian Terrorism is......
ArchaeoBob (6 comments)
More aggressive proselytizing
My wife told me today of an experience she had this last week, where she was proselytized by a McDonald's employee while in the store. ......
ArchaeoBob (4 comments)
See if you recognize names on this list
This comes from the local newspaper, which was conservative before and took a hard right turn after it was sold. Hint: Sarah Palin's name is on it!  (It's also connected to Trump.) ......
ArchaeoBob (3 comments)
Unions: A Labor Day Discussion
This is a revision of an article which I posted on my personal board and also on Dailykos. I had an interesting discussion on a discussion board concerning Unions. I tried to piece it......
Xulon (4 comments)
Extremely obnoxious protesters at WitchsFest NYC: connected to NAR?
In July of this year, some extremely loud, obnoxious Christian-identified protesters showed up at WitchsFest, an annual Pagan street fair here in NYC.  Here's an account of the protest by Pagan writer Heather Greene......
Diane Vera (3 comments)
Capitalism and the Attack on the Imago Dei
I joined this site today, having been linked here by Crooksandliars' Blog Roundup. I thought I'd put up something I put up previously on my Wordpress blog and also at the DailyKos. As will......
Xulon (0 comments)
History of attitudes towards poverty and the churches.
Jesus is said to have stated that "The Poor will always be with you" and some Christians have used that to refuse to try to help the poor, because "they will always be with......
ArchaeoBob (13 comments)
Alternate economy medical treatment
Dogemperor wrote several times about the alternate economy structure that dominionists have built.  Well, it's actually made the news.  Pretty good article, although it doesn't get into how bad people could be (have been)......
ArchaeoBob (5 comments)
Evidence violence is more common than believed
Think I've been making things up about experiencing Christian Terrorism or exaggerating, or that it was an isolated incident?  I suggest you read this article (linked below in body), which is about our great......
ArchaeoBob (8 comments)
Central Florida Sheriff Preached Sermon in Uniform
If anyone has been following the craziness in Polk County Florida, they know that some really strange and troubling things have happened here.  We've had multiple separation of church and state lawsuits going at......
ArchaeoBob (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 (2 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 (2 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 (11 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.