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Constitutional education, history, commentary, reform, compliance, and interpretation.

2010/01/15

Cautions for "nullification" proponents

South Carolina in 1832 was political theater. it did some good, mainly because in those days the federal government depended on the cooperation of local officials to some degree, which it no longer does, and because there was a threat of secession (which occurred 29 years later anyway). But the 1832 SC ordinance per se did not actually repeal the 1828 tariff, as a matter of law.

The historical antecedents for nullification were the Kentucky Resolutions of 1798 and 1799, authored by Thomas Jefferson, and the Virginia Resolutions of 1798, and the Virginia Report of 1800, authored by James Madison. This documentation is collected into a book entitled The Virginia Report by J.W. Randolph.

The mythology comes with the labeling of the proposal "nullification", which sounds like some kind of magic spell to uneducated laypersons. It is overselling a method of protest that has value but is not magic.

"Nullification" is not some kind of simple act of repeal. It is relentless resistance to official action by so many people over a sustained period of time that officials become discouraged and abandon the effort.

Consider some historical examples. In the years leading up to the 1861-65 War of Secession northern juries were refusing to convict for violations of the Fugitive Slave Acts and to return escaped slaves to the ones who claimed to "own" them. That effort, extended over decades, effectively "nullified" those acts, and southern frustration with that caused them to adopt Ordinances of Secession complaining of that.

But nullification can be used for evil, too. In the 19th and first part of the 20th century we saw juries refuse to convict Whites of killing not just Blacks, but Native Americans, Chinese, and other disfavored minorities. Male jurors often refused to convict men of beating or even killing their wives and kids. Hopefully we have gotten beyond that.

During Prohibition, juries increasingly refused to convict moonshiners and even big bootleggers. That actually finally led to repeal of Prohibition.

Later, juries refused to convict for abortion, leading many officials to actually welcome a court decision that would get them off the hook for prosecuting such cases.

But most of those nullification efforts involved thousands of cases over the course of years or decades. No one case did it. Except for Prohibition, the statutes mostly stayed on the books, available for future prosecutions.

For professional prosecutors there is no single conviction rate below which they can be counted on to give up trying to prosecute such cases, although 50% is a good target for planning purposes. Many are likely to be content to use prosecutions to destroy the fortunes and reputations of people they don't like. Remember the old cop saying, "You might beat the rap but you won't beat the ride." If that is the intent, it won't matter if they never get a conviction. Of course, now they can get witnesses to "testily" and pile on enough charges to get the accused to cop a plea, so most cases never appear before a jury.

There is concern among many civil libertarians that if we become too successful in getting juries to refuse to convict for unconstitutional prosecutions, the law enforcement establishment will just report that every arrest was "resisted" and the agent was "justified" in killing him. Save the cost of a trial. Don't say it won't happen. It is happening already.

When Jefferson, Calhoun, and others called for state resistance to unconstitutional federal legislation, it was at a time when the federal government needed cooperation and support from state officials. They no longer do. They have their own army of enforcers, and don't depend on the states for anything important. A "tenth amendment resolution" is just an expression of opinion, with no more legal effect than a resolution that the sky is blue. It costs the state legislature nothing, because it changes nothing. Oh, it might nudge members of Congress from that state a little, but chances are that a state in which one can get such a resolution passed already has members of Congress who tend to agree with it. The trouble is, they are a minority in Congress. It might have a tiny influence on members of the House of Representatives in those states from urban districts, which is the main basis of support for unconstitutional legislation, but the city-dominated states are tough audiences for our message.

Don't misunderstand. It may have some value as political theater. I only object to overselling it as some kind of magic solution. You may know it is not, but too many people may not. If you misrepresent what is going on, or promise too much, it will inevitably backfire down the road. I believe in playing things straight, not oversimplifying or allowing followers to oversimplify or deceive themselves. We need to be the professionals.

If you think it is okay to let uneducated people be deceived or deceive themselves to get a political outcome, then we have a disagreement. That may be rhetorically expedient, but it is building on quicksand.

Civil disobedience is a major part of what we have to do, as individuals, and of course individuals can be mobilized with a leadership role for state officials or actions. But keep in mind that it is civil disobedience, and not formal repeal that courts will have to respect.

What is missing from most of these proposals are provisions to protect individuals who join in protest. If a state legislature votes to encourage its citizens to resist, then it should also vote to support them legally and financially when the agents of the central government proceed to enforce anyway.


2010/01/19 9:53 PM
Addendum concerning Prigg v. Pennsylvania:

Prigg v. Pennsylvania is interesting in several ways. It is one of the first few cases in which the justices wrote separate opinions, and the diversity among them is revealing, especially the opinion of J. McLean, whose argument would require him to dissent, even though he didn't.

It is, of course, a political case, made to placate the southern states and avoid secession. I doubt anyone would seriously cite it today in a court. It makes the leap from a constitutional provision that leaves enforcement to the states, and asserts a new power of Congress to enforce it, in the Act of 1793, which did not authorize the seizure of the slave without getting certification of a state magistrate. That alone would require that the Pennsylvania statute not be ruled unconstitutional insofar as it was not in conflict with it.

Of course, federal courts would not recognize state "nullification" statutes, and they wouldn't need to invoke Prigg.


2010/01/21 5:09 PM
Addendum concerning proposal for a nullification resolution by the Texas Legislature:

It won't work to demand a special session to enact a resolution opposing federal legislation that hasn't been enacted yet.

The South Carolina nullification ordinance of 1832 was opposing a specific Act, the Tariff Act of 1828. It did nothing about any further acts Congress might pass.

Rep. Leo Berman wants to make it a constitutional amendment, submitted to the voters for approval. That won't work for unenacted congressional legislation that can be renamed and repassed in the future.

What we really want is to adopt a process to challenge any present or future unconstitutional federal legislation. That means some general process for deciding what federal legislation is unconstitutional.

It won't work to demand the State Legislature that only meets every other year to adopt resolutions on every unconstitutional piece of federal legislation. It doesn't have enough time to consider everything proposed now, and we need a mechanism that can respond faster than in two years.

What we need is what might be called a "Congressional Legislation Review Commission" that would be set up as a kind of special grand jury, but that would meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, perhaps appointed by the Governor or Attorney General, or perhaps by the Legislative Council. It would be empowered to review the constitutionality of congressional legislation, and if it found such legislation to be unconstitutional, to issue an edict, with the force of law, requiring that no state officials cooperate in the enforcement of it, and urging state citizens to refuse to cooperate.

There should also be a state fund established to pay for legal and financial support of state citizens and officials who refuse to cooperate. States are barred by a Supreme Court precedent, Massachusetts v. Mellon, 262 U.S. 447 (1923), from representing the rights of their citizens in federal court (under a principle called parens patriae), but it can pay for private representation.

"It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 180 U. S. 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field, it is the United States, and not the State, which represents them as parens patriae when such representation becomes appropriate, and to the former, and not to the latter, they must look for such protective measures as flow from that status." 262 U.S. at 485-86.

If you have any further questions, first try to answer them from the resources on or linked from our website, and then ask me if you can't find them after a diligent search.



2010/01/22 7:50 AM
Addendum concerning draft of proposed Texas nullification legislation:

Proposed Components:

1. Commission. Establish a "Federal Action Review Commission" — a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials and agents. No official, employee, or contractor shall be penalized for compliance with the edict.

4. Funding. Establish a state fund to pay for private legal counsel and provide financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.



2010/01/23 10:54 AM
Addendum concerning prospects of proposed Texas nullification legislation:

The question has been raised about whether the proposal will be an enduring solution.

It can only work if the voters sustain the pressure over a long period of time. No one-shot enactment will ever endure.

But this one is structured to improve the odds that the voters will be kept active. The Commission is supposed to meet at least once a week, and is charged with finding federal actions that are unconstitutional, not with finding constitutional ones. No risk of running out of material for that.

What I would expect is that they would start out making somewhat timid findings on more obviously unconstitutional, but not very important, federal actions. Still, their findings would be reported, and I would expect, would bring a lot of interest and public discussion. Each such report would stir up demands to find more things unconstitutional, and likely embolden the Commission to make bolder and bolder findings.

If more than one state did this, the reports of one state would spread to other states, each building on one another, and building public demand for more states to join in with their own commissions.

Eventually, this process of ratcheting demands for constitutional compliance would spill over into election campaigns, with candidates competing to be out in front of public demands for it.

This in turn could lead to public demands for constitutional amendments that would entrench constitutional compliance and overturn adverse judicial precedents.

Needless to say, reliance interests would be opposed to such commissions, so it would be a battle to keep them strong, but it is certainly attainable.

If we can get one such commission going, it could bring the revolution we have been wanting, and do so in a peaceful and reasonably orderly way. This could be the key to everything if we do it right.




2010/01/24 12:58 PM
Addendum concerning scholar Thomas Woods, Jr. on nullification:

Videos of Thomas Woods:

http://www.youtube.com/watch?v=aayyKKGXACI

http://www.youtube.com/watch?v=IRcw1NVYZVQ

http://www.youtube.com/watch?v=5qd5Lo4BsmM

Message from Thomas Woods 01/24/2010 12:20 PM:

Thanks. I've seen that post, and I in fact agree with your cautions. I don't think people consider nullification some kind of silver bullet. It is useful because it symbolizes the people's willingness to engage in civil disobedience. If that willingness isn't there, no declaration of nullification is worth anything. Also, even to raise the question serves an enormously useful purpose in that it jolts the people into the realization that the states need not be passive victims but can in fact defend themselves in various ways. Nullification likewise puts the Constitution back into our discussion of political issues. For these reasons alone, the current wave of interest in the subject is to be cheered.

I don't trust historians and legal scholars to determine constitutionality, by the way, and I suspect you don't, either. Which ones do you think would be appointed -- people from the 98% who think the current system is just fine, or the 2% (who happen to be correct, but will be dismissed as cranks) who actually understand the situation?

Cordially,
Tom Woods
--
http://www.TomWoods.com
Check out my latest book, a New York Times bestseller -- Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse.
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Reply from Jon Roland 01/24/2010 12:53 PM:

You're right. I don't trust most legal historians and constitutional scholars in academia, but I suspect that if the panel of 230 were selected as I propose, in Texas at least the pool would be heavily loaded with members of that 2%, and that a random selection of 23 from that pool would likely yield majorities that would find at least some things unconstitutional.

We shouldn't want such a commission to immediately start challenging every unconstitutional federal act, including some of the worst. If, for example, they found the income tax on wages unconstitutional, it would yield a firestorm that would likely bring about the destruction of the Commission. It needs to work up to that step by step, each step building more and more public support, not only in one state but across the country. It might be better not to have the first panels loaded with the 2% for that reason. I have found that even among the 98% there are plenty who don't think everything is just fine, and if tasked to find something unconstitutional, and surrounded by others similarly tasked, might stick their necks out and call it so, perhaps timidly at first, then bolder and bolder.

This is also intended to re-educate that 98%, to get them to shift into the 2% (which would not remain 2%), who we are going to need with us down the road. Most of them seek the safety of the middle of the herd. We need to reposition the herd. This is a cultural revolution.

I am on many forums with such academics. When I started in the late 1990s I was ridiculed. Then I got angry rebuttals (most of which crashed on the rocks of my well-supported arguments, backed by all the primary sources on my website). Now I often get, "Okay, you're right as a matter of history and logic, but your position is impractical." They're begrudgingly coming around.

Reply from Thomas Woods 01/24/2010 12:56 PM:

Thanks a lot. These are all excellent points. I have benefited very much from your excellent site, by the way. It is an understatement to call it a great public service.

2013/09/04 09:04 AM
Addendum concerning the merits of a state making federal enforcement a state crime

Nullification is not resistance to usurpation but the abandonment of usurpation as the result of the resistance. The resistance doesn't have to survive a court challenge to be effective, as state criminal penalties on federal officials trying to enforce a federal statute initially would not. However, it can be useful to set up a court challenge to the constitutionality of the federal statute in a way that would give the state standing to litigate the case. Present doctrine denies standing in federal courts to a state attempting to defend the constitutional rights of its citizens, since Massachusetts v. Mellon (1923), but if a federal agency challenges state interference with its agents in the enforcement of a federal statute, it creates standing for that state to challenge the constitutionality of that statute, and that puts a player into the game with more clout and is likely to draw more public attention to the case. That may induce more voters to make the case an issue in the next election, and members of Congress more likely to repeal the federal statute.

So there is definite method to efforts of this kind. It is not just grandstanding.



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