Practically speaking, nullification is a a fool’s errand.

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:

1. A nullification law is a State law. Congressional candidates have nothing to do with it. (Greg Brannon, call your office!)

2. A nullification law should attempt to nullify only a very, very clearly unconstitutional federal statute. Your goal should be to set a legal precedent in which nullification has been upheld in the federal courts, and your best shot will be when the State law and the U.S. Constitution clearly speak in one voice, opposing the federal statute.

3. Ideally, the nullification law should quote and explain the U.S. Constitution’s provisions upon which it is based, and those explanations should be consistent with any current judicial precedents.

4. Target an unconstitutional federal law which has not already been upheld by the SCOTUS. Ultimately you’ll have to win in the SCOTUS, and if they’ve already ruled against you that’s highly unlikely.

5. Don’t include in-your-face provisions that will offend federal judges, like demands that State troopers arrest federal law enforcement officers. Such provisions just make success in the courts even less likely.

6. Instead, give your nullification law some teeth by including a provision which obligates the State’s AG to defend the law in the courts.

7. Don’t bother at all unless you have a strong, conservative State Attorney General, who will do a credible job of making your case in the federal courts. (Cooper is not that man!) A weak defense is worse than none at all!

Skip Stam is a strong, pro-life, pro-family, strict-constructionist conservative. Before he was in the legislature he did enormous amounts of pro bono legal work for conservatives. But he is also a practical man. He will not support tilting at windmills, or make-believe legal theories. If you want to get Stam on board, you have to convince him that your strategy is practical, that it is honest, and that you’re not a nut. 

      
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Hans
Hans
8 years ago

Practically Speaking, “Nullification” Is An Act of Defiance …

And all defiance is ultimately a personal act, not political abstraction.

Mr Burton lost his argument when he resorted to name-calling and an appeal to superior moral authority: “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…”

We who aspire to Liberty must ultimately be the judge of what is “Constitutional”; what has been authorized through our consent to be governed. We must retain and exercise the right to individually judge the limits on power ceded to those who act as our agents.

According to maxims of common-law:
* All presumptions of law are rebuttable
* Written law cannot lawfully or morally violate rights of a free man
* Force, perjury, or subornation of perjury, voids all

Legislation that is inconsistent with limits of the grant of authority (constitution) is enacted with the threat of force for non-compliance. Unconstitutional law is void -- no law at all.

Beyond “constitutionality”, we also retain the right to judge whether the “legal” grant of authority in a constitution, or amendment, or statute, or regulation, is destructive to our unalienable rights in life, liberty and property. Such infringements must also be deemed void -- no law at all.

This judgment cannot be delegated. Ultimately it is we, as individuals, who must make the assessment of what is void and exercise our defiance. Men and women at Liberty can delegate neither their reason nor their conscience.

Nullification is proper; it is defiance; and it is personal.

brocktownsend
8 years ago
Reply to  Hans

Mr Burton lost his argument when he resorted to name-calling and an appeal to superior moral authority: “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…”

Amen.

daveburton
8 years ago
Reply to  brocktownsend

1. It’s ironic to hear Ron Paul acolytes getting irate about “name-calling” in a reply to an article & comments full of name-calling directed at one of the most reliably conservative leaders in Raleigh.

2. I didn’t make up that bit about Ron Paul and his acolytes pretending that the laws they dislike are unconstitutional, w/o regard to what the Constitution actually says. Ron Paul does it all the time, and his defenders defend it.

Ron Paul claims to be a “Constitutional Conservative,” but he is very selective about what parts of the U.S. Constitution he respects.

He is “way out there” on many issues. He’s the guy who says even genocide overseas is none of our business. He opposes sending even food aid to victims of genocide. He says it’s unconstitutional; hear him yourself:
http://www.youtube.com/watch?v=gI5MKFoFda0
(be sure to listen all the way to the end, to hear the serious candidates’ excellent rebuttals)

Article I, Section 8, paragraph 10 of the Constitution explicitly authorizes the federal government to “…define and punish… Offenses against the Law of Nations,” and there’s no clearer offense against the Law of Nations than genocide. The notion that the federal gov’t has no constitutional authority to interfere with genocide is pure nonsense.

Here’s another example of Ron Paul’s lies about the Constitution. He pretends that that the Interstate Commerce Clause doesn’t even cover interstate commerce! He not only voted against outlawing sex-selection abortions, he claims the federal government is without authority to restrict or regulate transporting of underage girls across state lines to procure out-of-state abortions without their parents’ knowledge. It’s obviously interstate commerce, so the federal government plainly has authority. Yet Ron Paul has repeatedly joined Democrats in defending that appalling practice from federal interference. Google “CIANA” for details, or see these sites:
http://www.nrlc.org/news/2005/NRL05/HousePassesCIANA.html
http://actualgrit.wordpress.com/2011/12/17/on-ron-paul-pro-life-really/

Don’t let anyone tell you that Ron Paul and his supporters are “conservative.” It’s nonsense. Ron Paul has been an enemy of the conservative movement for a long, long time. 1976 was the last year that Ron Paul endorsed Ronald Reagan. In fact, during Reagan’s presidency, Ron Paul bashed the President and quit the Republican Party!

Pandering to creepy nutcases is a consistent habit for Ron Paul, too. Now he panders to 9-11 “Truthers” like his friends, Lew Rockwell & Alex Jones.

Jones and Paul are tight. Paul’s been on Jones’ radio show over 200 times. Here’s Alex Jones talking about conservatives:
http://youtube.com/watch?v=dU5hxTVJrX4

Jones “thinks” (I use the word loosely) that secret conspiracies or space aliens are “the world’s controllers.”
http://www.youtube.com/watch?v=z44YhGjX2is

He also says the government is intentionally poisoning you with vaccines and fluoride to keep you docile.
http://www.youtube.com/watch?v=-ZnxyxxhW48
http://www.youtube.com/watch?v=NTaBfHcgKJQ

Here he is in action, abusing Michelle Malkin:
http://www.youtube.com/watch?v=i-DoxqvqjxM

Obama finally disassociated himself from Jeremiah Wright, but Ron Paul won’t disassociate himself from Alex Jones.

Ron Paul is not worthy of your support. He has a long, sleazy record of pandering to white supremacists, 9-11 “truthers,” and other creepy nutcases. Here’s Ron Paul pandering to one of the 9-11 “truther” nuts, who claim the 9-11 attack was an “inside job” (i.e., President Bush was behind it):
http://youtube.com/watch?v=3u0tgNUfOL8

On the issues, Ron Paul is more libertarian than conservative. Though he got a 96% rating from the ACU, he had a 100% NRTLC rating only 4 out of 11 years, dropping as low as 56% in 2005-2006. AFP rated him 95% last year, but his CWfA rating averaged only 77% over 9 years, his NRA lifetime score is 67%, and his average AFA score is a miserable 49%.

Ron Paul doesn’t just lie about the Constitution, either. He lies about his opponents, and other things, too. For instance, he lies about his own racist newsletters!

In 1995 Ron Paul told CSPAN that “I put out” the newsletters, which had titles like “The Ron Paul Investment Letter,” “The Ron Paul Political Report,” “The Ron Paul Survival Report,” and “The Ron Paul Political Report: Special Issue on Racial Terrorism.” Among many other outrageous things, his newsletters accused MLK Jr. of seducing underage girls & boys, and cheered for David Duke (the former KKK Grand Wizard), likening him to John Wayne.

In 1996, Ron Paul defended the newsletters to the Dallas Morning News, and specifically defended calling “95%” of black men in Washington, DC “semi-criminal or entirely criminal.” He said his words were taken out of context (which they weren’t).

But now he says he didn’t write the newsletters which bore his name, and doesn’t know who wrote them, and didn’t even know what was in them. (That’s a transparent lie; in fact, his own secretary says he proofread them!)

Ron Paul’s racist newsletters were no aberration, either. He published them for years, marketing them to white supremacists and survivalists.

When you lie as much as Ron Paul does, it’s hard to keep your story straight, but there are still gullible people who believe him, anyhow. See:
http://tinyurl.com/bngberz
http://tinyurl.com/racistronpaul
http://tinyurl.com/RonPaul96DMN
http://tinyurl.com/ronpaulnewsletters

Hans
Hans
8 years ago
Reply to  daveburton

Mr Burton

I am neither an acolyte of Ron Paul nor follower of Alex Jones. I am an advocate of Jeffersons’ righful liberty and the common-law.

The Republican Party abandoned me and other advocates of liberty years ago when the Party abandoned the constraints of constitution and adopted progressivism to embrace those who vote for their living (collectivist moochers and their political allies).

Here, and in the prior post, I addressed what I believe to be substantive issues regarding the principle and practice of nullification. This was done without resort to ad hominem attack.

Nothing in your rant (above) is relevant to the topic of nullification, so I suggest you strike your tent and move on.

Hans
Hans
8 years ago
Reply to  daveburton

Postscript RE: Article 1 Section 8 Clause 10 … authorization:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations

Vattel’s treatis on The Law Of Nations (§ 5.) states: As men are subject to the laws of nature, — and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men, — the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings.

The constitution empowers these united States, through delegation to the general government, to address crimes in common-law (implementation of laws of nature) against the several States.

This is not a mandatory grant of authority to meddle in the affairs of other nations.

“Duty To Protect” is progressive ideology.

daveburton
8 years ago
Reply to  Hans

Hans, how do you manage to twist “offences against the Law of Nations” into “crimes against the several States?”

Genocide is the clearest of all possible offenses against International Law. Nothing could be clearer than the Constitution’s grant of authority to punish such offenses.

Your twistifications (like Ron Paul’s) of the plain language of the Constitution to try to support your libertarian agenda are no less dishonest than the liberals’ appeals to “emanations and penumbras” to justify their libertine and socialist agendas.

I am a conservative, not a libertarian. Conservatives don’t behave that way.

Hans
Hans
8 years ago
Reply to  Hans

Mr Burton

Your last comment is clearly an attempt to ignore our history, and evade reason. Reflect upon George Washingtons’ warning that we should avoid foreign entanglements.

“Duty To Protect” is not fundamental to our constitution or our founding principles. It is Progressive ideology embraced by the power-hungry as their excuse to expand their influence and control others.

Consider this my final response. I do not “twistify”, I attempt to educate. I don’t debate ignorance, that just wastes my time and annoys the ignorant.

daveburton
8 years ago
Reply to  Hans

1. Hans, I said nothing about any “duty to protect,” and I have no idea what you’re going on about with that;

2. The Constitution’s grant of authority to define and punish violations of international law is not limited to our own borders, it applies everywhere;

3. Washington’s warning about foreign entanglements was written before the invention of the H-bomb;

4. Under President Washington, more than 15% of the national budget was expended overseas;

5. If your idea of nullification is an “act of defiance” against the law, don’t expect me or any other conservative, or any law-maker to support it.

Diogenes
Diogenes
8 years ago
Reply to  Hans

jsbrodhead
8 years ago

“Practically speaking, nullification is a a fool’s errand.”

Practically speaking, there is no “civilized means” to remove evil from positions of power.

The RepubliCANTs are a lost cause, in need of replacement.

The DemonicRATs are a rabid pack of sewer-dwellers, in need of termination.

Pretty much narrows it down to placing it all in faith into the hands of God, IMO.

David Barton, I respect the HIStorical knowledge you have gathered and shared with us. If you expect the depraved to surrender the massive powers they have twisted from the People, because the People say so, you appear to be as blind as the GOPhers, who believe they must compromise to win.

Five plus years of operating in fully pissed-off mode, does not make one more ready to join forces with those who have already allowed MANY latch-points pass.

When the People have no “legal standing” to prevent the Elitists from appointing their choice of dictator, our vote means NOTHING. If our vote means nothing, then the system is null.

daveburton
8 years ago
Reply to  jsbrodhead

I’m David Burton, not David Barton. But don’t apologize, because I consider it a compliment when people confuse the two of us.

jsbrodhead
8 years ago

…the system is null, but God is not. Seems to me, this was the conclusion of those signers of the Declaration of Independence.

william Sterrett
william Sterrett
8 years ago

Dave Burton, I’m really impressed. You score zero points for calling concerned and patriotic citizens idiots. You sound very self involved with your perceived importance. You been hanging out with the intellectual twit coffee house crowd?

Mike.
Mike.
8 years ago

Meanwhile other states buzz on by Skippy and the NC crew. SC and GA Nullifying Obamacare. 24 states refusing to comply with Federal Marijuana laws. 9 states who stopped complying with Federal Gun Laws. Once enough states refuse to comply it will happen.

Number 5 is correct at this time but to say that somehow Skip is afraid of violating his oath by following an amendment to the Constitution is laughable.

daveburton
8 years ago
Reply to  Mike.

Mike, here’s the SC ObamaCare signup page:
https://www.healthcare.gov/marketplace/individual/#state=south-carolina

Here’s the GA ObamaCare signup page:
https://www.healthcare.gov/marketplace/individual/#state=georgia

If someone writes a NC “nullification” bill following the seven guidelines that I listed above, I doubt that Skip will oppose it. He might not put much energy into supporting it, because he prefers to work on things actually have a good chance of making a difference, but I don’t think he’ll actively oppose it.

OTOH, if you get someone to write a bill which demands that NC cops arrest BATF agents, don’t expect to get many real conservatives to go along with you.

daveburton
8 years ago

Re: disappearing comments

David, my comments no. 31099 and 31107 both just disappeared when I posted them, with no 5 minute edit period. Any idea what’s going on? (They’re essentially identical, so if you need to do “approve” them or something please just approve one and delete the other.)

daveburton
8 years ago
Reply to  DRenegade

Thank you!

Mike.
Mike.
8 years ago

The Anti-Commandeering Doctrine is proof that the 10th Amendment is still alive and available to those who want to resist. Skip Stam is a fool and a liar

http://tenthamendmentcenter.com/legislation/obamacare/

Bert Loftman
8 years ago

“Doomed in the Courts?” Nullification is about not following the rulings of nine federally paid lawyers aka The Supreme Court who twist the clear meaning of the Constitution.

daveburton
8 years ago
Reply to  Bert Loftman

If by “nullification” you mean trying to defy the courts, you’ll get no conservative support.

What’s more, there are a few honest Justices on the SCOTUS, who do not “twist the clear meaning of the Constitution.” Thomas is the best, followed by Scalia and Alito, in that order.