TOTAL Popular Misperception On Nullification

Recently, intentions have been overridden by circumstance. Starting a day with a few topics in mind, another priority intrudes on plans. I have been posting on the idea and the necessity of nullification, and had a couple of entirely different matters in mind for discussion. But on Monday’s “Special Report With Brett Baier” on FOX News, they ran a story on the Nullification idea being considered in Idaho. Unfortunately, the much derided supposedly conservative FOX News Channel, was as misinformed as every other media outlet. The story typically referred to “a controversial centuries-old maneuver…nullification.” It cited The Attorney General of Idaho, Lawrence Wasden’s issuance of a legal opinion discounting nullification saying, “There is no right to pick and choose which federal laws a state will follow.” This sounds like my previous citation of another state attorney general who is proposing a constitutional amendment to allow 2/3 of states to repeal a federal law, but quickly rejected the idea that he was after “nullification,” which he described as a state deciding not to play ball with a law it didn’t like. This attorney general, Virginia’s Ken Cuccinelli is a good guy and Idaho’s Wasden probably is, too. But, I’m little more surprised that an attorney today would learn no better in law school than I am that public grade-schoolers are taught the truth of global warming.

But it isn’t about "picking and choosing" or what anyone likes, it’s VERY explicitly about The Constitution. And attorneys are taught what a University of Idaho professor expressed in this FOX News story: “This (Idaho) law would eviscerate The Supremacy Clause, it would flip The Constitution on its head, and it would return us to the days of The Articles of the Confederation, which the framers rejected.” That analysis may have the virtue of some contemporary consensus among law academics, but it does NOT have the virtue of being the truth. In law school, aspiring attorneys are taught “the Supremacy Clause Of The Constitution” which states, “This Constitution, and the Laws of the United States which shall be made in pursuance 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. The assertion of nullification which Thomas Jefferson commended is that unconstitutional laws are NOT “pursuant to” the principles stated in The Constitution. That is why all officials at every level in The United States must swear an oath to The Constitution and hold all others accountable to it, whether upwards, downwards or laterally. Like all other officials, the judiciary are not independent of constitutional accountability. In The United States, there is NO entity vested with absolute power. The Supremacy Clause does not mean that states are bound by any law that the Congress wants to pass, as simple-minded pop-culture voices imply. It means that states are bound to the principles of The Constitution and the enumerated powers of the federal government.

The story further told that The Supreme Court had “frowned upon the idea of state nullification,” and again typically and misguidedly cited 1958 “state laws banning compliance with the desegregation ordered in Brown v. Board of Education.” If it weren’t such a commonplace, such analysis of the matter would be dizzyingly dim-witted. Set aside that Brown v. Board was a Supreme Court decision, not a piece of legislation like the later Civil Rights Act of 1964. The point of these events was that equal protection under the law was precisely pursuant to the constitutional principle of equality under the law. The 14th Amendment had corrected the flaw in American practice which had not recognized an entire class of human beings (black people) as equal under the law. And The ’64 Civil Rights Act specified specific laws that continued to do so. Federal orders like the health care law, intruding upon and constraining private behavior have nothing to do with equal protection under the law. Just as states may nullify unconstitutional laws, states may not take action in defiance of constitutional principle. Here’s a video of Tom Woods, whose book on Nullification informed major actors in Idaho:

As an aside, some many months ago I reported my own deliberation about the element of the ’64 Civil Rights Act which directed the conduct of not public but private business. Would not such regulation be better undertaken by states? Yes, that would be better IF the states would do that. However at the time, most of the elements of the Act were directed at the states themselves which were exercising discrimination in their law. Then at that time, they could hardly be entrusted with dictating equality in private commerce. Today, such behavior would be broadcast and publicly scorned. But not so at that time.


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