Contributor Post Created with Sketch. Nullification, Anyone?

 

One sub-theme of the “popular constitutionalism” movement is state nullification. This is the idea that a state should be able to declare a federal law inoperative within its borders, if the state believes that the law exceeds constitutional boundaries. Libertarian professor Thomas E. Woods is on a national “Nullify Now” tour, and the idea has been gaining some respectability.

I’m not persuaded. Presumably nullification only becomes necessary when court challenges don’t do the trick, e.g., if the Supremes won’t strike down Obamacare, then the States will do it. But the idea of states openly ignoring Supreme Court decisions (however wrongheaded) just seems like a disaster for the rule of law.

Am I missing something or is nullification just a really bad idea?

There are 41 comments.

  1. Profile Photo Member

    I’m with you. It completely undermines federalism, upon which our system depends. I was also under the impression that the Civil War solved the question of nullification.

    • #1
    • September 8, 2010, at 9:20 AM PST
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  2. Michael Tee Inactive

    United States Constitution, Article VI, Clause 2.

    This is just another step towards secession.

    • #2
    • September 8, 2010, at 9:21 AM PST
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  3. Aaron Miller Member

    No, I think you’re right. A state’s refusal to obey a national law is properly a last resort.

    Are we to that point? Maybe.

    Gradual tyranny must cross a line before we should reject it by civil disobedience or by force, but where is that line? I’ve asked myself that question for years and am no closer to an answer. If such a time comes, I fear it may pass us by before we realize what we’ve lost.

    Nobody knows the point at which a nation becomes irredeemable. We should trust in law and our present system as long as possible, and perhaps it’s best to wait overlong… to allow for hope at the expense of prudence. But if our system should ultimately fail, the cost will be increased for every year we wait.

    … which isn’t to suggest that states’ disobedience can only end in catastrophe.

    • #3
    • September 8, 2010, at 9:24 AM PST
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  4. Profile Photo Member

    With the Federal government blatantly trampling on the Constitution and the courts relying on flawed precedents, what other choice do the states have?

    Standing upon the 10th Amendment, whatever the consequences, at least brings public attention to the absolute necessity to reign in the Federal government and to defy the tyranny of judicial fiat.

    • #4
    • September 8, 2010, at 9:24 AM PST
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  5. G.A. Dean Inactive
    Adam Freedman: Presumably nullification only becomes necessary when court challenges don’t do the trick, But the idea of states openly ignoring Supreme Court decisions (however wrongheaded) just seems like a disaster for the rule of law.

    I believe you are correct. The States can, and do disagree with Congress, but the Supreme Court is the body who adjudicates between them. Once they have ruled, the States need to get into compliance.

    During my commutes this month I have listened to a course on Lincoln, and the famous debates with Douglas touched upon this very question. Douglas argued that a locality (in this case a territory, not a state) can effectively nullify a ruling by failing to pass “friendly local legislation” that would support it. In other words, they could ignore it.

    Lincoln took this assertion apart. It sounds viable but cannot stand up to a challenge, or the Union becomes meaningless. Of course, Lincoln then had to face an attempt, by some States, to nullify his election. That effort ended badly too.

    • #5
    • September 8, 2010, at 9:24 AM PST
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  6. River Inactive

    Nullification is certainly risky, as the Confederate States of America discovered. Defying Washington D.C. must be a last resort.

    The enormity of federal abuse we endure now dwarfs anything ever imagined by the Founders, Abraham Lincoln, or most of the great legal thinkers of our history.

    The formula for responsible action should be based only on the words of our founding documents. From the Declaration:

    “…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”

    The Tenth Amendment to the Constitution shows us how badly we’ve gone off the rails since our founding:

    “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.”

    Seems clear to me we have a case for bringing the federal government to heel.

    • #6
    • September 8, 2010, at 9:26 AM PST
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  7. Adam Freedman Contributor
    Adam Freedman Post author
    Kenneth: Standing upon the 10th Amendment, whatever the consequences, at least brings public attention to the absolute necessity to reign in the Federal government and to defy the tyranny of judicial fiat. · Sep 8 at 9:24am

    I completely agree that the 10th Amendment needs to be taken seriously (interestingly, it was briefly resuscitated for the purpose of striking down the Defense of Marriage Act). But if we take the 10th Amendment seriously, it’s because we take the whole Constitution seriously, including the bit that makes the Supreme Court supreme. As much as I hate it, if Justice Kennedy decides that the latest Consolidated Omnibus Horror Show passes muster, don’t we have to abide by that?

    • #7
    • September 8, 2010, at 9:48 AM PST
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  8. tabula rasa Member

    Nullification is a bad idea. The philosophy underlying nullification led to the Civil War.

    At the same time, when we’re in a period of federal overreaching, as we are now, the natural response is to say “to h*** with them.” And I agree that the Tenth Amendment has been criminally ignored.

    Nonetheless, the better course is the one we’re on. Retake power and change the law the old fashioned way (repeal it or fundamentally amend it).

    • #8
    • September 8, 2010, at 9:50 AM PST
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  9. Profile Photo Member
    Adam Freedman
    Kenneth: Standing upon the 10th Amendment, whatever the consequences, at least brings public attention to the absolute necessity to reign in the Federal government and to defy the tyranny of judicial fiat. · Sep 8 at 9:24am
    I completely agree that the 10th Amendment needs to be taken seriously (interestingly, it was briefly resuscitated for the purpose of striking down the Defense of Marriage Act). But if we take the 10th Amendment seriously, it’s because we take the whole Constitution seriously, including the bit that makes the Supreme Court supreme. As much as I hate it, if Justice Kennedy decides that the latest Consolidated Omnibus Horror Show passes muster, don’t we have to abide by that? · Sep 8 at 9:48am

    I think a bit of Constitutional crisis might be instructive. At the very least, it will remind people that we actually have a Constitution and that it embodies principles we ignore at our existential peril.

    • #9
    • September 8, 2010, at 9:58 AM PST
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  10. Mark Wilson Member
    River: The enormity of federal abuse we endure now dwarfs anything ever imagined by the Founders, Abraham Lincoln, or most of the great legal thinkers of our history.

    Seems clear to me we have a case for bringing the federal government to heel. · Sep 8 at 9:26am

    “Dwarfs anything ever imagined by the Founders”? Let’s not lose perspective here. The Founders knew and rebelled against a true tyrant. They anticipated the kind of abusive and ambitious men who would seek power. Then they built a constitution with many features designed to protect liberty against those men. Those safeguards are still mostly in place. Our republic is still, on the whole, healthy and functioning. We will have a regular election this November, and the winners and losers will abide by the voters’ decisions.

    • #10
    • September 8, 2010, at 10:09 AM PST
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  11. Aaron Miller Member

    The Founders rebelled primarily because of “taxation without representation.” Correct? That’s what I was taught throughout my public school history classes, anyway (the damage of which I’ve been undoing ever since).

    If that’s so, what level of taxation would be too tyrannical to bear now? On how small a proportion of issues can our “representatives” represent us before delegitimizing our government? Does it matter if they heed us on minor issues but ignore us on great ones, like Obamacare? Or should we have different standards than the Founders did?

    What is the baseline of freedom?

    • #11
    • September 8, 2010, at 10:20 AM PST
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  12. Jimmy Carter Member

    “…and the winners and losers will abide by the voters’ decisions.” Voters including, but not limited to, illegals, felons, the deceased….

    • #12
    • September 8, 2010, at 10:24 AM PST
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  13. Profile Photo Member

    I think nullification is a legitimate LAST course of action for one reason: the law one might seek to nullify was passed by the same legislators that have given us our current balanced budget.

    In other words, if they are incompetent in one area, why would we assume they are infallible in another?

    But we ought always to allow they system to work if it will.

    • #13
    • September 8, 2010, at 11:29 AM PST
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  14. David Parsons Inactive
    Kenneth: With the Federal government blatantly trampling on the Constitution and the courts relying on flawed precedents, what other choice do the states have?

    I have to get on board with Kenneth. The big controversy in Arizona is a perfect example of what the issues are, and, more importantly, what has gone wrong.

    Fact: It is the duty of the federal government to enforce our immigration laws and protect our national borders.

    Fact: The federal government has utterly failed in that duty.

    Fact: Out of pure exasperation (not to say desperation), Arizona has determined to protect its own borders and enforce the immigration laws.

    Fact: While still refusing to assume its duty, the federal government has effectively declared war on Arizona and is trying to prevent the state from protecting itself.

    Fact: That is a sure recipe for revolution.

    If the federal government abrogates any specific responsibility, I believe that the states have the right to assume that responsibility. I believe that is well in keeping with the spirit of the Tenth Amendment.

    • #14
    • September 8, 2010, at 11:46 AM PST
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  15. Pilgrim Thatcher
    Adam Freedman
    Kenneth: Standing upon the 10th Amendment, whatever the consequences, at least brings public attention to the absolute necessity to reign in the Federal government and to defy the tyranny of judicial fiat. · Sep 8 at 9:24am

    … But if we take the 10th Amendment seriously, it’s because we take the whole Constitution seriously, including the bit that makes the Supreme Court supreme. As much as I hate it, if Justice Kennedy decides that the latest Consolidated Omnibus Horror Show passes muster, don’t we have to abide by that? · Sep 8 at 9:48am

    Right on, Kenneth. Adam: What “bit of the Constitution made the Supreme Court supreme?” I thought the acquiescence of the political branches in the Supreme Court’s decision in Marbury vs Madison brought judicial supremacy by a judicial interpretation of the judiciary’s powers. What in the Constitution would prohibit the Congress from restating a struck-down statutue with the added proviso “the recent decision of the Supreme Court notwithstanding, this Act has been reviewed, declared constitutional by this Congress and is hereby reinstated. s// the President of the US”

    • #15
    • September 8, 2010, at 11:56 AM PST
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  16. G.A. Dean Inactive

    To finish the point… The other important elections in the ‘baseline for freedom” are the votes within the legislature, in this case Congress. If those are abused, then we are tipping into tyrany.

    The revolutionary generation rejected taxes imposed by a legislature foreign to them. If you want to understand their feelings, imagine if a Congresswoman from San Francisco, or a Senator from Nevada were to dictate the laws and taxes imposed on you in Texas. Oh, that’s not hard to imagine? Well that’s the problem.

    • #16
    • September 9, 2010, at 1:15 AM PST
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  17. Mark Wilson Member
    River

    I beg to differ. We are this close to genuine slavery. Tyrants in our modern age of technology are many orders of magnitude more evil and destructive than King George or any other tyrant of past centuries. Mao, Pol Pot, Stalin, and Hitler dwarf the mad rulers of prior centuries.

    Thanks to satellites, computers, cell phones, cameras, and planes, modern age tyrants can spy on, track, and snatch up anyone in the world at any time. There’s no escape anymore. No wilderness left to hide in. That’s something no previous generation could imagine.

    Entire slave nations – China, North Korea, and the Soviet Union – proved George Orwell to be a modern prophet. · Sep 8 at 12:20pm

    There is no comparison between USA 2010 and any of the tyrants and countries you have listed. You are just talking about the potential power of a hypothetical American tyrant, which I agree is unsettling. But our Constitution is still strong, and despite setbacks, the love of freedom is still the primary political driver for a huge number, if not a majority, of Americans.

    • #17
    • September 9, 2010, at 1:17 AM PST
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  18. Pilgrim Thatcher

    G.A. Dean: #20 “…But they are considered to be just because they are imposed by properly elected representatives, against whom we have recourse, at least in theory…”

    I am afraid the last phrase is the rub. Elected representatives pass “laws” that are unread, empty shells for unelected bureaucrats to fill in the blanks. The reelection rate of incumbents and the resistance to term limits show the true independence of the “Emirs of Incumbastan”{M. Steyn}

    Even with significant changes in the House and Senate, the stasis in the Congress allows the EPA, Homeland Security, Justice Department etc to rock merrily on.

    SCOTUS is only affected by elections long past and the courts have gotten so arrogant that I believe they no longer “follow the election returns”

    • #18
    • September 9, 2010, at 1:18 AM PST
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  19. Aaron Miller Member
    G.A. Dean

    The “baseline of freedom”, as you call it, is the election. We live in a republic, and in such a society there will be laws and restriction and taxes too, sometimes lots of them. But they are considered to be just because they are imposed by properly elected representatives, against whom we have recourse, at least in theory.

    That’s a pretty good minimum standard. If elections lose their legitimacy, so does the whole of government.

    But, as I said, I’ve thought about this periodically for years. And I’ve realized there’s really never one standard. For example, in pre-war Germany, when fairly elected officials actively promoted hatred against Jews, that was also reasonable grounds for an uprising. I know I’m negating my own question by saying this, but we basically have to wait and see what injustices, or what turnarounds, will come.

    G.A. Dean: To finish the point… The other important elections in the ‘baseline for freedom” are the votes within the legislature, in this case Congress. If those are abused, then we are tipping into tyrany.

    So… unread bills, budgets “deemed” passed, circumventing normal majority rules, and so on?

    • #19
    • September 9, 2010, at 1:55 AM PST
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  20. Aaron Miller Member
    G.A. Dean:

    The revolutionary generation rejected taxes imposed by a legislature foreign to them. If you want to understand their feelings, imagine if a Congresswoman from San Francisco, or a Senator from Nevada were to dictate the laws and taxes imposed on you in Texas. Oh, that’s not hard to imagine? Well that’s the problem. · Sep 8 at 1:15pm

    Many thanks. I’ve always been a bit disbelieving that a people would rise up in rebellion primarily over taxation. But when taxation is just an example, a symbol, of culturally foreign politicians exerting dominance, it makes perfect sense.

    • #20
    • September 9, 2010, at 2:00 AM PST
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  21. Nathaniel Wright Member

    When dealing with the Judiciary, the issue of nullification as secession is potentially moot. As Hamilton wrote in Federalist #78:

    “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

    The Judiciary only has power insofar as the other branches of government enforce its judgment — through the use of the Sword and Purse. States are perfectly within their rights to ignore Supreme Court decisions, so long as they are willing to deal with the possibility of other branches supporting the SC decision.

    As Calhoun’s supporters (who were State Nullification advocates against Legislated Law) learned, when the Sword and Purse are against you then you must yield. Calhoun also advocated secession, but states have no right to secession — only revolution as the Civil War so aptly demonstrated. But things only get that far if the Executive and the Legislative support the Judicial.

    • #21
    • September 9, 2010, at 2:07 AM PST
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  22. Mark Wilson Member
    Aaron Miller

    G.A. Dean:

    The revolutionary generation rejected taxes imposed by a legislature foreign to them. If you want to understand their feelings, imagine if a Congresswoman from San Francisco, or a Senator from Nevada were to dictate the laws and taxes imposed on you in Texas. Oh, that’s not hard to imagine? Well that’s the problem. · Sep 8 at 1:15pm

    Many thanks. I’ve always been a bit disbelieving that a people would rise up in rebellion primarily over taxation. But when taxation is just an example, a symbol, of culturally foreign politicians exerting dominance, it makes perfect sense. · Sep 8 at 2:00pm

    The Declaration if Independence is a good place to find reasons for the revolution.

    • #22
    • September 9, 2010, at 2:25 AM PST
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  23. Adam Freedman Contributor
    Adam Freedman Post author
    Pilgrim Right on, Kenneth. Adam: What “bit of the Constitution made the Supreme Court supreme?” I thought the acquiescence of the political branches in the Supreme Court’s decision in Marbury vs Madison brought judicial supremacy by a judicial interpretation of the judiciary’s powers. What in the Constitution would prohibit the Congress from restating a struck-down statutue with the added proviso “the recent decision of the Supreme Court notwithstanding, this Act has been reviewed, declared constitutional by this Congress and is hereby reinstated. s// the President of the US”

    Right – Marbury established judicial review of congressional legislation, but I don’t think it was a stretch. Article III gives SCOTUS power to determine “all cases” arising under the Constitution and the laws of the US. The issue here is not Congress’s power to reinstate a statute struck down by SCOTUS, but the power of a State to defy a law passed by the political branches and upheld by SCOTUS. I have great respect for the 10th Amendment, but I don’t think it goes that far.

    • #23
    • September 9, 2010, at 2:26 AM PST
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  24. Aaron Miller Member
    Mark Wilson

    The Declaration if Independence is a good place to find reasons for the revolution.

    Doh!

    I’ve never read it before and compared it to modern times. There’s a temptation to stretch the similarities, but it’s interesting. Thanks.

    • #24
    • September 9, 2010, at 2:41 AM PST
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  25. Aaron Miller Member

    After rereading the Declaration of Independence, it seems the Founders apparently waited until they were under widespread physical attack from their government before finally declaring a formal rebellion:

    He has abdicated government here, by declaring us out of his protection and waging war against us.

    He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

    He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy…

    But I suspect the rebellion began sooner as disorganized uprisings.

    What books would y’all recommend on the events leading up to the Revolutionary War? I’ve obviously forgotten more history than I care to admit.

    • #25
    • September 9, 2010, at 3:14 AM PST
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  26. G.A. Dean Inactive
    Aaron Miller

    I’ve never read it before and compared it to modern times. There’s a temptation to stretch the similarities, but it’s interesting. Thanks. · Sep 8 at 2:41pm

    Both then and now the critical distinction is one of process. Both tyrannies and healthy republics levy taxes and place other burdens on the citizens, and the people in both don’t enjoy it. But in the republic they have a say in the matter and recourse for their unhappiness.

    This is what is so disturbing and dangerous about an administration and majority party so committed to “ends by any means.” Legislating through the courts, ramming through laws by subterfuge and tricks, and other efforts to subvert the people’s influence are tyrannical and wrong, no matter the merits of the ends pursued.

    A “benevolent dictator” is still a dictator, and in a world populated by men and not angels, ultimately abusive and evil.

    • #26
    • September 9, 2010, at 3:29 AM PST
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  27. Mark Wilson Member
    G.A. Dean

    This is what is so disturbing and dangerous about an administration and majority party so committed to “ends by any means.” Legislating through the courts, ramming through laws by subterfuge and tricks, and other efforts to subvert the people’s influence are tyrannical and wrong, no matter the merits of the ends pursued. · Sep 8 at 3:29pm

    I object to the word tyrannical. Let’s not water down our historically important vocabulary by overusing it. They are still just the majority party. We have an election coming up!

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    • September 9, 2010, at 3:39 AM PST
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  28. Michael Tee Inactive
    Nathaniel Wright: The Judiciary only has power insofar as the other branches of government enforce its judgment — through the use of the Sword and Purse. States are perfectly within their rights to ignore Supreme Court decisions.

    Calhoun also advocated secession, but states have no right to secession — only revolution as the Civil War so aptly demonstrated. But things only get that far if the Executive and the Legislative support the Judicial. · Sep 8 at 2:07pm

    Um, no. The Federalist Papers notwithstanding, in the history of the U.S. declaring a law unconstitutional means the states cannot abide by it through the Supremacy Clause. If you can point to an example where individual states abided by an unconstitutional statute with no recourse, I’d be happy to concede this point.

    The Civil War ended the idea of secession. Until that point it was widely understood that the Constitution was a contract amongst individual states. Hence, the contract clause.

    • #28
    • September 9, 2010, at 4:49 AM PST
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  29. David Parsons Inactive
    Aaron Miller:

    What books would y’all recommend on the events leading up to the Revolutionary War?

    The finest book I ever read on that subject is Paul Revere’s Ride (1994), by David Hackett Fischer. It is exhaustively researched and full of surprising facts & amusing anecdotes. More than anything, it is a poignant tribute to the courage of ordinary Americans (many of them poor & sickly) who were willing to put their lives on the line for Independence. The American Revolution marked the birth not only of a new form of government, but a new kind of citizen with a new way of thinking.

    • #29
    • September 9, 2010, at 5:03 AM PST
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  30. Bulldawg Inactive

    I KNEW there was a reason I wore my Anglo-Confederate Society tie from Ben Silver of Charleston to the office today.

    The rule of law depends on the ability to enforce and/or the willingness to obey said law. Nothing more and nothing less. It is when the law becomes anathema to the governed that the willingness to obey leaves and the ability to enforce must be applied.

    I haven’t seen anyone discuss the idea of jury nullification whereby a jury simply ignores the law to act as it sees fit. “Jury in criminal cases possesses de facto power of ‘nullification’ to acquit defendant regardless of strength of evidence against him.” Cargill v. State, 255 Ga. 616, 340 SE2d 891, 914. Inherent in nullification is the presupposition that the source of all power resides in the governed, not the governor.

    When the support and consent of the governed is not consistent with the passage of a statute, the congress and president who passed it did not have the authority from the will of the people and accordingly, as an ultra vires act, if it is not struck down, the state legislatures ought to nullify it.

    • #30
    • September 9, 2010, at 6:14 AM PST
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