NC Renegades

This is a  comment on the September 11, 2012 article: Skip Stam on Nullification.

by Dave Burton

When the federal government enacts blatantly unconstitutional laws, i.e., laws which contradict any U.S. Constitutional provision, such as the 1st, 2nd, or 10th Amendment, Congress and the President are, in effect, practicing “nullification” of the U.S. Constitution. So if a State enacts a law which effectively restates a provision of the U.S. Constitution, contradicting (“nullifying”) the unconstitutional federal statute, it seems clear that the State has the high moral ground.

That’s all the State has, though. Most informed observers agree that such strategies are doomed in the courts. Every judge and every lawyer in America has had the supposed supremacy of the Supremacy Clause pounded into their heads, their whole professional lives. None of them will rule in favor of a State statute which conflicts with a federal statute, not even in a State court.

Never mind that the 2nd Amendment, the 10th Amendment, and all other Constitutional amendments are supposed to take precedence over the Supremacy Clause! State courts and lower federal courts all bow and scrape to the federal courts, so if the federal courts have ruled that a federal statute is constitutional, then State nullification can’t possibly work.

Practically speaking, nullification is a a fool’s errand. As long as Obama has a bigger army than McCrory, and as long as law schools indoctrinate young lawyers (who become young judges) with the supposed supremacy of the Supremacy Clause over the rest of the Constitution, nullification has little hope of success.

The picture is even bleaker, if that’s possible, when States pursue a nullification strategy to oppose federal laws that are not very clearly unconstitutional. Ron Paul and his acolytes pretend that every law they dislike is unconstitutional. They’re idiots. Foolish public policy is not necessarily unconstitutional. Real conservatives know better than to pursue such foolishness.

By far the better strategy for restoring constitutional government is to elect strict-constructionist Republican Presidents, and support your local Federalist Society. A few more strict-constructionist Justices like Clarence Thomas on the SCOTUS would transform the legal landscape, far more than State nullification could ever hope to!

(BTW, please don’t call strict-constructionists “constitutionalist.” That just conveys legal illiteracy, and Ron Paul nuttiness.)

At best, nullification strategies can obligate State AGs to support legal challenges in the federal courts to unconstitutional federal statutes. If you insist on pursuing State nullification, then that’s how you should do it. Here are a few strategic principles to keep in mind:

Continue reading →