Skip Stam on Nullification

Nullification was proposed by wiser men than Skip Stam. Nullification may be construed to violate the oath of office, but the support for unconstitutional laws has already caused elected officials to be in violation of that same oath.

Nullification challenges and rebuffs FedGov usurpations beyond the scope of authority outlined in the Constitution. Nullification is a half-measure, a necessary transition to the full and proper statement of non-compliance.

Perhaps Mr Stam is uncomfortable with half-measures and is ready to update the following declaration at the next session of the NC Legislature:

AN ORDINANCE to dissolve the union between the State of North Carolina and the other States united with her, under the compact of government entitled “The Constitution of the United States.”

Done in convention at the city of Raleigh, this the 20th day of May, in the year of our Lord 1861, and in the eighty-fifth year of the independence of said State.

If Mr Stam cannot embrace the spirit of Liberty and the philosophy of our founding, then perhaps it is time that WE THE PEOPLE of North Carolina, as the body politic upon this soil, stand and exercise our sovereign right to re-constitute the government of North Carolina to one more likely to safeguard our Liberty.

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.