Well, I've been convinced.
Nullification is a valid, constitutional, legal, viable remedy for Central Government over-reach.
I became enamored of the idea the moment I heard about it, but then I heard that Mark Levin has expressed his opinion in no uncertain terms, and with his typical dose of insults, that Nullification is unconstitutional, and that anyone who believes otherwise is a Leftwing Kook.
I mostly respect Mark Levin and his opinions. He seems to me to be as angry and as concerned about the dangerous Statism that has taken over our country as I am. I enjoy his rants...because I generally feel the same.
So it was with some concern that I read about his vehement disagreement, and, indeed, howling vituperation against any that support Nullification as a currently viable tactic, or dare suggest that Jefferson and Madison, particularly in the Kentucky and Virginia Resolutions against the Alien and Sedition Acts, were encouraging it.
As a result of this disharmony in my own brain, I sought out argument from both sides, and have read, not exhaustively, but significantly the arguments for both sides.
Here, in a nutshell is what I have come up with:
THE ANTI-NULLIFICATION SIDE:
Insists that all laws passed by Congress are required to be obeyed by all people of the United States. Period. That to permit anything else is to invite anarchy and break up the Union.
That if Congress acts beyond its Constitutional mandate, we may....while obeying their unconstitutional laws...work to form a Constitutional Amendment Convention of 2/3 of the States in order to amend the Constitution to force the Central Government, who is violating the Constitution, to obey the Constitution. (more on this later*)
The fact that this is a long-term, perhaps multiple decade endeavor matters not. Until such curative Amendments are ratified by 3/4 of the States and the Constitution be duly amended, there can never be any justification for not obeying a law passed by Congress, ordered by the President, or permitted by the Supreme Court...no matter how illegal, vile, criminal, immoral or unconstitutional.
But wait, what if the Congress, seeing the States working to hold a Constitutional Amendments Convention, passed a law outlawing such a convention? Such a law would obviously be a direct violation of Article V of the Constitution. But if, by anti-nullifiers logic, we must always obey all laws passed by Congress, unconstitutional or otherwise (or risk anarchy!) what are we to do if they pass laws—unconstitutional or otherwise— that close any route of redress?
Please note that people who claim Nullification illegal claim the same about Secession, so we couldn't even legally take our ball and go home!
Aren't they in fact saying that the Central Government can do anything it wants and we just have to obey it? How is this different from tyranny? How is this different from an absolute monarchy.
Do you suppose the Founders had this in mind when they ratified the Constitution?
So...no matter how cleverly and hysterically they argue their point, this is always what is comes down to: We have no right to resist an unconstitutional government. We must be good, little submissive, obedient subjects to our master, the Central Government.
Of course that's not what they THINK they're saying, but if you take their argument to it logical conclusion, that's where it ends up.
Sorry Mark. Much as I love ya, buddy, you're wrong.
(Happily I'm so insignificant, he will never become aware of my dissing his feeble argument, and therefore will be spared being pierced by his high-pitched slings and arrows.)
Regarding the fact that Mark is a trained lawyer, and therefore some might give him the advantage in this argument just because of his "expertise"....please note this wonderful quote:
"Being trained in the law should not be mistaken for being well educated."
I love that...and I believe most of my attorney friends would agree. Besides, this is not an issue of law, but of history. And in that, others are more expert. And it is to those I turned to find the argument FOR Nullification.
On final thought: "Constitutional law is not The Constitution, it is what judges have said about The Constitution"
THE PRO-NULLIFICATION SIDE:
The States have the right to nullify an UNCONSTITUTIONAL law within their own borders; refuse to enforce it; refuse to cooperate with Federal agents in enforcing, and indeed act as a shield for their citizens against any Federal action to arrest, intimidate or otherwise harass them.
This cannot be used willy-nilly against any old law they don't like, but only those deemed unconstitutional, in that they violate guaranteed natural rights, or are beyond the permitted scope and jurisdiction of the powers enumerated to the Federal Government by the Constitution.
This argument necessarily requires that the Supreme Court, as part of the Central Government, NOT be the final arbiter of Constitutionality of Congressional or Executive acts. It reclaims the right of States, as parties to the Compact that created the Federal Government...to judge the Constitutionality of its laws.
This is as it was in the beginning...and should be today. The Supreme Court, in a series of its own decisions, granted itself the power to be the Oligarchical Rulers of America, by seizing the final and unquestionable right to determine what is, and what it not permitted and Constitutional.
By a branch of the Federal Government, created by the States and the People, this is an intolerable usurpation of power, and must be checked.
Nullification is one way to do that.
In brief: If the States and The People have no right to independently resist the unconstitutional encroachments of the Central Government of their liberty, their persons, their jurisdictions, their territory, their property, but must obey its every dictat while pleading to that same Central Government for redress, then the Constitution is a sham, and the United States of America has ceased to exist as it was founded, and Liberty and Rights are nothing more than empty words sans meaning and substance.
That may be okay for some, but it ain't okay by me.
* This is a simplistic and in one sense unfair way of putting this argument...even though it does have some obvious merit. The fact is, the Central Government Judiciary Arm, the Supreme Court, has violated the spirit and meaning the the Constitution in favor of itself and its fellow Central Government branches by "interpreting" certain phrases in the Constitution to mean what they were never meant by the Founders to mean, most particularly the Commerce clause and the General Welfare clause.
Amendments can be put in place that clarify, define and limit any further such "interpretations" that increase the size and reach of the Central Government—and, in fact, eliminate any powers previously assumed by the Central Government based on such "interpretations".
This would obviously be a good thing.
If the Central Government would be ruled by the Amended Constitution. The suggestion above is not outrageous in imagining that if the Central Government will not be ruled by the clear and knowable truth of the Constitution as currently constituted...why would anyone trust that such a body would suddenly be brought to heel by more words on paper?
Surely there must be a real method of enforcement by which the States can bring the Central Government under Constitutional control.
And it is this that the Anti-Nullifiers do not permit by their argument.
And here are a few others you might recognize who agree - commenting on the book "NULLIFICATION" by my new hero, Thomas Woods.
“During these times that challenge our freedoms there is no one more
qualified to make U.S. history relevant to the fight against big
government than Thomas Woods. This book is a must read for all who
cherish liberty.”-Barry Goldwater Jr., Former Member of Congress
“Thomas Jefferson said, ‘Whensoever the General Government assumes
undelegated powers, its acts are unauthoritative, void, and of no
force.’ It turns out that at least two thirds of congressional spending
is absent of any constitutional authority. That means that at the very
least, it is going to take the vigorous use of nullification to restore
the American republic. Anyone in the Tea Party movement or elsewhere who
really wants to limit government ought to start with this highly
readable and informative book.”-Walter E. Williams, John M. Olin Distinguished Professor of Economics George Mason University
“In clear and well-documented arguments, Tom Woods gives hope to
those who wish to tame the federal monster as the Framers intended — by
using the utterly lawful and historically accepted principle of
nullification. You must read this book.” -Hon. Andrew P. Napolitano, Senior Judicial Analyst FOX News Channel
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