DEBATING STATE NULLIFICATION OF FEDERAL LAWS

As Eleven States Declare Sovereignty Over Obama’s Action observed early in 2009, Obamcare stirred up a ruckus.

State governors — looking down the gun barrel of long-term spending forced on them by the Obama “stimulus” plan — are saying they will refuse to take the money. This is a Constitutional confrontation between the federal government and the states unlike any in our time.

In the first five weeks of his presidency, Barack Obama​ has acted so rashly that at least 11 states have decided that his brand of “hope” equates to an intolerable expansion of the federal government’s authority over the states. These states — “Washington, New Hampshire, Arizona, Montana, Michigan, Missouri, Oklahoma, [Minnesota]…Georgia,” South Carolina, and Texas — “have all introduced bills and resolutions” reminding Obama that the 10th Amendment protects the rights of the states, which are the rights of the people, by limting the power of the federal government. These resolutions call on Obama to “cease and desist” from his reckless government expansion and also indicate that federal laws and regulations implemented in violation of the 10th Amendment can be nullified by the states. (continued here)

Since then much of America has debated and slowly begun to take seriously state nullification of Federal laws. Dear Federal Government: Go To Hell, an essay at the Tenth Amendment Center, cites this Rasmussen poll, 54% Say States Should Be Able To Opt Out of Federal Programs.

So why is state nullification such a rarity? Well, it really isn’t, as the Jim Crow laws attest. Even after the Civil War, and after being garrisoned with Federal troops during Reconstruction, Southern States stubbornly passed laws stripping Blacks of their constitutionally guaranteed rights. What war could not accomplish and troops could not enforce, Blacks eventually did themselves. With nonviolent protests — civil disobedience — Blacks shamed Whites into recognizing their civil rights.

So what would state nullification look like? I am not sure, but About the Tenth Amendment and Nullification – An Email From A Friend Challenges My Assumptions at REDSTATE provides a clue. Here the author describes a process that requires guts and persistence. An orderly process usually defines American Law. Since no process is defined for state nullification of Federal laws, nullification requires the determined obedience of the citizenry to state Law and determine disobedience to Federal Law.

If people really were fed up (no pun intended) they simply would not purchase insurance and they would refuse to pay the fine. Would states come to their defense, and if so how, when the feds tried to collect the fines or render punishment for refusing to pay? Who knows? Has anyone even thought about how the states could come to the defense of its citizens who individually decide to defy the feds in this regard? See what I mean? Talk, talk, talk. (from here)

Frankly, I would prefer more orderly process. I am not ashamed to admit fear. I would much rather see Conservatives win elections and win in the courts. Nonetheless, we have no such guarantees. Just as have some in the past, we too may see the worse.

When free men want to remain free, we have one final option. We say NO! We refuse to be sheep. We refuse to acquiesce and politely accept our enslavement. We nullify bad Law by refusing to obey.

One last thought. The Roanoke Tea Party supports state nullification. See 4th Circuit Court: Nullification Chronicles Part 3. They are fans of Thomas E. Woods. Since Woods supports Ron Paul, I probably don’t see eye-to-eye with Woods on at least a few subjects. Nonetheless, this book review, A Brilliant Exposition on the Effectiveness of Nullification, sounds interesting.

So while I am hesitant at this point to go down the nullification road, I still consider those folks allies and remind them to be patient.

When I began entering into the give and take of legislative bargaining in Sacramento, a lot of the most radical conservatives who had supported me during the election didn’t like it. “Compromise” was a dirty word to them and they wouldn’t face the fact that we couldn’t get all of what we wanted today. They wanted all or nothing and they wanted it all at once. If you don’t get it all, some said, don’t take anything. I’d learned while negotiating union contracts that you seldom got everything you asked for. And I agreed with FDR, who said in 1933: “I have no expectations of making a hit every time I come to bat. What I seek is the highest possible batting average.” If you got seventy-five or eighty percent of what you were asking for, I say, you take it and fight for the rest later, and that’s what I told these radical conservatives who never got used to it. — Ronald Reagan (from here)

Total agreement is not required to define someone as a friend — not that I will ever get use to disagreement. Did Reagan ever stop fighting?

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About Citizen Tom

I am just an average citizen interested in promoting informed participation in the political process.
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12 Responses to DEBATING STATE NULLIFICATION OF FEDERAL LAWS

  1. A fair and reasoned argument. We all are friends in freedom. We just need to realize that the situation is dire and the situation may require thinking outside of the proverbial box.

    But a lot to push back on. I personally love Ron Paul when it comes to economics and a strict interpretation of the Constitution. His foreign policy ideas are not always to my liking, but critics of Paul tend to focus on the foreign policy issues and ignore how right he is on the domestic issues. The left is willing to subvert the Constitution on Obamacare. But the right can’t selectively support the Constitution on one hand, and then ignore it when it suits their purposes. Paul runs afoul of people because he raises uncomfortable issues on things like the ceding of the power to declare war to the executive branch.

    While we do support nullification, I would prefer a more orderly process as well. That process could be brought about by simple steps. Not easy steps mind you, but simple. Repeal the 16th and 17th Amendment and defund the Federal beast and allow the states back into the Federal Constitutional process as the founders intended. Elect federal officials who actually take their oath to uphold and defend the Constitution seriously. De-fund the numerous and onerous Federal agencies that have entwined themselves around the economy and our lives. And leave the states and the localities to decide which of these programs they will pick up/alter/abolish. Anyone not believe that was what the founders intended? This means that states can choose to do things like Romneycare, or not. Most of the money would stay home and localities and states can choose their own paths.

    As much as I detest Woodrow Wilson and the 16th and 17th Amendments, at least those progressives actually had to change the Constitution to affect change. Politicians have, with impunity, violated the Constitution, almost on a whim since the 1930s. And here we find ourselves now, with the Constitution in shreds.

    Your analogy to Jim Crow laws is very apt. It took a grassroots movement of civil rights patriots to raise their issues long enough for the Federal government to finally step in and intercede to protect their rights. It wasn’t orderly. It wasn’t pretty. But eventually the Federal government handled their duty and upheld the basic Constitutional rights of citizens being infringed upon by states.

    As in the 60’s there is a need for a Civil Rights Movement. Today the villain is not the states, but the Federal Regime that is instituting laws in clear violation of the Constitution and with the express purpose of exercising authority it wants, but does not constitutionally have. Our state officials not only have the right, but the duty, to step up and protect us from that tyranny.

    And it will take effort at the local, state and federal level to get back to the Constitution we all cherish. Yes nullification isn’t clean and pretty. But the situation is dire and it is time to decide whether it is more important to defend our rights or to be polite and orderly.

    Our founders did not achieve their freedom by being orderly and polite. And unfortunately, I don’t believe we will either…

    Chip Tarbutton
    President
    Roanoke Tea Party

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  2. Pingback: Orderly or Free? | Roanoke Tea Party

  3. Eric the 1/2 troll says:

    “What war could not accomplish and troops could not enforce, Blacks eventually did themselves.”

    The war was about slavery and it DID acoomplish its abolition over state’s protest. Further, there were federal troops and law enforcement that were a BIG part of forcing the South to accept federal law. Black protests occurred PRIOR to federal laws being enacted not AFTER. Most black protests occurred in the early 60s. Federal Civil Rights Laws werre passed in 64, 65, and 68. Loving v. Virginia was in 1967 and forced 16 states to reverse their interracial marriage bans. It was EXACTLY the proper use fo federal law backed up by federal troops that forced the south to give up their states rights position of legalized discrimination. There were plenty of cries of federal tyranny from the south in those days as well.

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  4. Eric the 1/2 troll says:

    “Frankly, I would prefer more orderly process. I am not ashamed to admit fear. I would much rather see Conservatives win elections and win in the courts. Nonetheless, we have no such guarantees. Just as have some in the past, we too may see the worse.

    When free men want to remain free, we have one final option. We say NO! ”

    And you would be no more right than were the leaders in the south in the civil rights era who did the same thing. Just like I can not ignore laws that I do not agree with without accepting the consequences – neither can you.

    Dr. King never advocated that blacks should not be arrested for breaking the laws they broke. He never remotely advocated any form of insurrection. He changed the laws he wanted changed by demonstrating how truly evil they were. If this is the roll you seek, then I say “fine” give it a try. But I think you will have a hard time making this case. Because the law is not in any way, shape, or form evil in the manner that Jim Crow was.

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  5. Citizen Tom says:

    Chip – Thanks for stopping by again. Very much appreciate your comments.

    I have a similar reaction to Ron Paul. I have an itch to vote for the man, and I regret I cannot. National Defense may not be the primary function of the Federal Government, but it sure comes close. As the Commander in Chief, our president must get it right.

    Eric – Take a look at your two comments. You argue with yourself.

    What the Civil War accomplished was holding the Union together. Technically — legally — the Civil War ended slavery, but Blacks remained highly exploited, second class citizens. That’s what forced Martin Luther King and so many others to demonstrate how truly evil those laws were.

    Step back and look what is happening to our country now. Congress has deceitfully imposed highly unpopular laws upon us. By any objective measure Obamacare is unconstitutional. In spite of all the baloney promises, it is an open secret that Obamacare would nationalize and destroy our healthcare system. When government becomes so perverted, it becomes the enemy.

    Anyway, I don’t understand your complaint. As I described it, we would implement state nullification of a Federal law via civil disobedience. As some people still alive today can tell you, that’s no fun. I don’t want to go there. However, if I have to, I hope I have the courage to do so.

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  6. Scout says:

    “By any objective measure Obamacare is unconstitutional. . .” seems a bit hyperbolic. This is a matter in the courts and the courts have split on the issue. The current health care system may ultimately be found to have constitutional infirmities, but the dispute is in new territory and the answer seems less clear than you state it to be.

    On the larger point, being an older fellow who lived through the first part of the 19th Century, nullification is sheer folly that would destroy the Nation. I remain, as I was then, squarely in the Webster/Jackson/Lincoln camp on this. That Democratic Planters feel otherwise is not enough for me.

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  7. To your point, Tom, we need to elect strict constitutionalists and the same need to be appointed to the bench. Then, the federal government could shink and we wouldn’t need this discussion. (One can always hope).

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  8. Citizen Tom says:

    Scout – Hyperbolic? Our elected officials take an oath to support and defend the Constitution. The Constitution itself requires such an oath. Nonetheless, the supporters of Obamacare studiously avoided any discussion of that law’s constitutional infirmities. They did not care.

    Would you like to do their work for them? Would you like to explain what in the Constitution empowers Congress to pass such a law? As it is, all you have said is that you disagree, you are an old fellow, and you are in a certain camp. So? All I see is an icon and empty words. Is it possible that you could frame an argument that make your case?

    Freedom – I agree. If we don’t win the election, and we get people who don’t care what the Constitution says, then we get people who believe might makes right. Heaven help us when those folks feel that they can actually say what they believe and get away with it.

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  9. Scout says:

    I was taking issue, Tom, with your statement that “by any objective measure, ‘obamacare’ is unconstitutional.” If it were that clear, we wouldn’t have protracted litigation on the issue and divisions in the Circuits. There’s no precedent that has dealt with the same issues. I think you’re starting at the end of the analysis, as opposed to reasoning your way through. Again, the Supreme Court (that’s where this is headed) may ultimately decide that elements of the ACA are unconstitutional. If they do, it won’t be because it was obvious from the beginning.

    I’ve always been in the “camp” of those who favor a more narrow interpretation of the Commerce Clause, but that’s not the end of the story in the constitutionality of health care legislation. There are other parts of the document in play also. Let’s see how it works through the system then have a nice chat about it.

    Glad to see Freedom By the Way lining up against the Calhounists. Nullification is a pernicious, extra-constitutional doctrine abhorrent to constitutional conservatives.

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  10. Eric the 1/2 troll says:

    “As I described it, we would implement state nullification of a Federal law via civil disobedience. ”

    Fine, I have no problem with you breaking the law as long as you don’t complain when you have to pay the price. I think the difference between your position (post a hypothetical SCOTUS acceptance of the entire law) and Dr. King’s position is that the Jim Crow (and associated laws) were truly evil laws that anyone could see were counter to American values (a conclusion that WAS in this case upheld by the SCOTUS). Your position would run counter to the conclusions of our entire US legislation system with all its checks and balances (two houses of Congress, a Presidental signature, and hypothetical approval by the SCOTUS). You will have a hard row to turn to convince the US citizens of the worth of supporting your law breaking. Of course, you also think taxation to fund social security (which also jumped through the same hoops) is theft – for the same reasons, good luch with convincing the population of that position as well.

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  11. Citizen Tom says:

    Scout – Your position is self contradictory. Here at this comment you beat on your chest and tell us you can protect your own rights, suggesting anyone who cannot is wimp. Here in your latest comment you explain that we cannot determine what our rights might be. It is all too very complicated.

    Have you forgotten how the Constitution begins. It is our document. It belongs to We the People. We decide what it means. If we think our elected officials have stepped beyond the powers we gave them, then we organize by whatever means necessary and toss them out on their ears.

    Eric – I think Obamacare is evil. When you can tell people how to spend whatever they might earn, you have enslaved them.

    Perhaps you think we have a right to health care. Perhaps you think Obamacare is necessary to make that happen. Yet Democrats sold it with a pack of lies beginning with the lie that any of us have the right to force someone else to pay for our health care.

    Anyway, I have a question for you. When you cannot explain what makes Obamacare constitutional, why should the fact Congress passed that legislation and Obama signed make you comfortable with it? The majority is always right? And the Jim Crow laws were what?

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  12. Scout says:

    You need to read more carefully. Your reference is to my opposition to what I view as a loopy, extra-constitutional idea that was thrown around here and elsewhere that the individual states are charged with litigating in court to defend residents’ federal constitutional rights. I didn’t suggest that people not inclined to defend their own rights are “wimps”, only that defense of individual rights is an individual responsibility. And I’m totally perplexed as to where you got the idea that I’ve advocated a position that “we cannot determine what our rights might be.” I have said that the health care reform issue is one that is unsettled. As for the “We, the People. . .” reference, welcome aboard. Precisely. It doesn’t say “We, the States. . .” By Jove, I think he’s got it.

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