Nullification Update: Legal Schmegal
I regret that I am forced to paraphrase a quote from America’s founding that says in essence that the exercise of power is only limited by what is tolerated. It sounds like Jefferson of course, but might not be. One should copy such things immediately. I’ve spent enough time trying to find it again. Anyway, it’s consistent with the overall flavor of many quotes about overreaching power and resistance. What I want to point up is that the law is an agreement of a civil society. Just as its enforcers are not respected without the threat of penalty, they are not restrained without the threat of resistance. Somewhere there is a limit to what a population will tolerate. That limit may be reached more slowly in a society that is relatively well-fed, clothed, and housed.
I have written about the duty of other officials sworn to The Constitution, like state government officials, to “nullify” federal laws thought unconstitutional; to say so and refuse to comply. Today’s legal consensus says that such a notion is anarchic and itself, unconstitutional. Now if so many supposed “pearls” of popular wisdom today are wrong, why in the world do you suppose that commonalities of today’s legal system might be any different? Might I suggest that the proliferation of lawyer jokes is no accident; that the “practice” of law is often a tool for the pursuit of an objective other than the truth? In this case, that objective would be to comport with the pop-culture notion that all power for effecting social policy stops at the federal government. I submit that the federal government was not only not intended to wield such power, it is in any case utterly incompetent to order a just and effective society.
And I’m not saying that all defenses of this commonplace misunderstanding are disingenuous. Some fine people even of generally conservative sentiment, have imbibed this ubiquitous falsehood. In the past few days, I received a response to an email that apprised me that I was arguing with the country’s best lawyer in a particular field. Whatever. My devotion is to truth and goodness, not credentials and reputations. Also, one of the earliest assertions of the unconstitutionality of Obamacare, was Virginia Attorney General Ken Cuccinelli. I like him a lot and agree with him. But at the end of last year, I watched Ken Cuccinelli on Hardball with Chris Matthews, discussing his effort to pass a bill that would grant a majority of states a process to “repeal” legislation of the federal government. The statist Matthews who sees most everything in terms of politics more than principle, opined that they were only appealing to the southern secessionist/nullification crowd. Cuccinelli interrupted and disavowed nullification, describing it wrongly, and saying he was only trying to make a modest move back toward the original balance of federal and state power His proposal was modest indeed. But an “educated” lawyer like Cuccinelli conceded that any federal mandate is a legitimate exercise that must be fought in one of two ways.
One way is to challenge it is in the federal courts, which Cuccinelli was one of the first to do as Virginia AG. In fact, Virginia had passed its own law before the passage of Obamacare, which declared its opposition to federal imposition into health care in the state. Virginia uniquely made its own law part of its case against the federal mandate. But Cuccinelli conceded that the courts could rule that the law was constitutional, even in the face of his other assertion that this would amount to the utter elimination of limited power for the federal government, implied by the enumerated powers of The Constitution. Drat! The Constitution could fall prey to the omniscient and omnipotent federal courts! Cuccinelli’s second front is the one he was pursuing with his state repeal proposal, which would give states a tiny potential with a high threshold, of limiting federal power. But there are a couple of Jefferson quotes that I DO have:
“You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …." - Thomas Jefferson: — Letter to Mr. Jarvis, Sept, 1820
“Our tenet ever was…that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.” – Thomas Jefferson, 1817, Letter to Albertn Gallatin
So, the duly contemporarily educated good conservative lawyer, Ken Cuccinelli may be in step with today’s legal consensus, but he is not in step with Thomas Jefferson and what he appeared to consider the intent of the American founders. The usual first instinct of dismissal of nullification, is to appeal to “The Supremacy Clause,” which is most often summarized, “So, federal law trumps state law.” But, what the Supremacy Clause refers to is the primacy of the principles and the enumerated powers accorded the federal government in The Constitution, and Cuccinelli’s description of nullification as “when a state doesn’t like a federal law and folds its arms and refuses to play ball,” is entirely incorrect. Nullification of a federal law by a state (that again, is sworn to defend The Constitution) is saying precisely that the law is beyond the enumerated federal powers of The Constitution. It isn’t about what anyone “likes,” it’s about The Constitution. And I assure you, that the founders had nothing like today’s popular construal of The Supremacy Clause in mind. In discussion around The Constitution’s ratification, the whole point was to assure those who feared an over-assertive federal government, and that assurance was expressed in The Bill of Rights that culminated in the explicit assertion of The 10th Amendment: 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. TexasGOPVote sent representatives to this past Saturday’s Nullify Now! Rally in Austin, which Bob Price Blogged live from. Here are a couple of excerpts from that.
Debra Medina pointed up the ignorance that still exists among conservatives:
“Politicians are still confused about what is good public policy. We are far removed from policies that promote freedom. An example - A Texas state representative, Leo Berman, is working on state nullification and the 10th Amendment. Nullification and Interposition is now resurging in Texas. House Bill 297 in Texas is a healthcare nullification bill. When the Supreme Court says a bill is constitutional the people can still say a law is unconstitutional. Berman says his bill would not have any effect if the healthcare law was declared unconstitutional. He still doesn't understand nullification.”
From the section on the address of Tom Woods, the author of the book, “Nullification: How to Resist Federal Tyranny in the 21st Century.”
“Discussing new book on Nullification. His goal was to be able to explain nullification to his seven year old daughter. ‘When the government tries to do something not on the list of what it can do, we tell them they can't. She got it completely. Perhaps the Supreme Court should be made up of 7 year olds."
"Nothing of substance will change if we go to all the trouble to get rid of Obama and replace him with Mitt Romney." (Beautiful)
"We are all tired of reacting to them (media, and law school academics). We will start doing things and make them react to us! That is Change You Can Believe In!"
Arguments about “the law” miss the point if we are prepared to submit to anything, whether constitutional or not. As I mentioned to my fellow pro-life friend, lawyers and judges on The Supreme Court ruled that abortion is a constitutional right. I also reminded him that Soviet dissident Alexandr Solzhenitsyn had advised not to fear the law, but to fear the judges that interpret it. The difference in our country is at most, one of degree...perhaps unless you are an unborn child. But now, “pro-choice” people tell us about a right to abortion, “It’s the law.” Well, judges aren’t even legislators and don’t make law, though they gave us this decree that was a brand new idea in 200 years of this society’s existence, and centuries of Western civilization before that. And since American society has passively accepted it, that idea has prevailed for 38 years. If no one has any hint of the courage and resolve of the American founders who pledged, “our lives, our fortunes and our sacred honor,” federal judges and legislators will prevail whatever they please on American society, as long as not even a state will do its constitutional duty and say, “NO!”
Maybe a financial collapse will grow some hair on our chests. As The Declaration of Independence notes,
“…all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
So this is not exceptional. America’s founders were exceptional. They believed in the justice and potential of liberty. We are watching liberty being robbed and our resources confiscated and squandered at a rate and in numbers unprecedented in world history; i.e. “suffering” a LOT. Short of collapse or the assertion of more courage, we should expect the other tendency that Jefferson wrote of: “The natural progress of things is for liberty to yield and government to grow.”