NULLIFICATION
Nullification begins with the point that a federal law that violates the Constitution is no law at all. It is void and of no effect. If a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it.
It would be foolish and vain to wait for the federal government
or a branch thereof to condemn its own law!
Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. The main point behind nullification is that the federal government cannot be
permitted to hold a monopoly on constitutional interpretation.
If the federal government has the exclusive right
to judge the extent of its own powers, it will continue to grow regardless of elections, the separation of powers and other limits on government power. James Madison and Thomas Jefferson both warned of this. The Constitution is only a piece of paper and cannot enforce itself. The checks and balances of the three branches of government cannot guarantee a limited government, since these three branches can simply unite against the independence of the states and the reserved rights of the people. This is especially true if one party controls all three branches of government.
The real check on federal power is the ability of the states to interpose to prevent the enforcement of unconstitutional laws. We cannot believe a bad law is settled because a nine politically well connected lawyers who are treated with awe have informed us that all is well. There is history for the general principle that an unconstitutional law is void. In Federalist Paper #78, Alexander Hamilton said “there is no position which depends on clearer principles, then that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
How and by whom should an unconstitutional law be declared void? The federal courts are a branch of the federal government. How can they be expected to be impartial judges? The Supreme Court itself is a branch of the federal government. In a dispute between the states and the federal government (take the Arizona Immigration law), does the resolution come from the federal government? Jefferson refused to accept that answer
It was impossible for Jefferson to believe that the states would have agreed to a system that assured their unjust subordination! Spencer Roane, a Virginia Judge at that time said that if the federal judiciary were to arbitrate such a dispute between itself and the states, it would be presiding over its own case which is a clear absurdity!
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I feel your emotion. We are a full year from the first Tea Party and while wiser as to the dirt in politics we don’t feel very successful. We think that we don’t have the luxury of time for the situation in this country is so bad in so many ways that despair lurks around the corner.
ReplyDeleteHere in Ohio the May primary is staring us in the face as a reminder that despite all our work many good candidates are not going to be on the ballot. November is knocking at the door and the two ballot initiatives most signed and signed again may never see a polling place.
Countless citizens do nothing but complain and maybe attend a meeting or two. Success, however we measure it, seems unreachable. Disappointing yes, frustrating yes, but are we at failure? I give a resounding NO.
We are making history. In just one year millions of people have moved well beyond their comfort zones be that to D.C or Mall C. I know not one who is turning back.
We have broken the learning curve in every field of social science and politics and continue to learn and grow with enthusiasm. We have educated ourselves and each other in the basics of political activism. I’m quite certain I could ace that eighth grade history test now.
You referred to the nohealthcare monster that tried to quietly slip into law before the summer recess of ’08 and finally got there only by cheating and lying and showing its true and ugly face. While it slammed the door on us, we know where it lives.
But here is what I need most to remember. (cont. in next response)
(cont. from previous post)
ReplyDeleteThe first Tea party was in December of 1773. A year and a half later they had no success to measure except that of the courage of the boys and men who gave their lives in Lexington or Concord.
Americans may have felt successful in June of ’75 when Washington was named Commander-in-Chief but probably not six months later when volunteer soldiers were mired in 15” of South Carolina snow.
On July 1, 1776, two and a half years after the tea hit the water, the Declaration of Independence was still being debated.
The success of the July fourth was followed the next month by the humiliating defeat of Washington’s army on Long Island. They had to flee under cover of night.
In December, three years after the Boston party, Washington led his underfed, under clothed, unpaid, frozen men across the Delaware to take the Hessians in a surprise raid deemed almost impossible. That was success.
One year later they were freezing at Valley Forge. Three years after that they suffered in the harshest winter of the 18th century in New Jersey.
Seven and a half years after the Boston rebellion, with so many Americans dead and crippled and wounded, they were rewarded with the news that the British had taken Charleston, SC.
And in September of 1783, a few months shy of ten years, the Treaty of Paris ended the war.
I think they probably measured the ratifying of the U.S. Constitution a success. Signed in September of ’87, it only took fourteen years to achieve it.
It doesn’t seem that this country can survive for fourteen years of the same old. But the patriot minutemen probably wouldn’t have thought it possible either.
God willing, the second revolution to defeat tyranny and establish constitutional laws will not take that long. But the problems have been many years in the making. We the people have just begun.
Facts from http://www.ushistory.org/declaration/revwartimeline.htm