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

2011/02/24

Flaws in Tennessee nullification bills

Two bills, HB 1705 by Rep. Matthew Hill, and SB 1474 by Senator Stacy Campfield, were recently introduced. Although they have much merit, they also have some serious flaws, and need to be amended before they are adopted.

  1. It needs to be a constitutional amendment. This kind of reform won't endure unless it is entrenched in the Constitution of the State of Tennessee. The political forces that will array against it will become too great unless any repeal or further amendment has to be submitted to the voters for ratification.
  2. Original meaning of "Commerce Clause" of U.S. Constitution (Sec. 2.3). The original meaning was trade in tangible commodities, not "products", from a seller outside a state to a buyer inside the state. It did not include finance or financial instruments, and included navigation only to the extent of requiring passage through designated ports of entry and their inspection points. Sec. 2.4 needs a major rewrite. The Commerce Clause was not to "regulate" state laws and courts. "Religious sectarian and foreign law" is irrelevant. Revised language is linked at the end.
  3. It needs to define "regulate". Reference to original meaning is made but not clearly enough.
  4. Not all congressional powers in Article I, Section 8. Contrary to Sec. 2.7.
  5. Sec. 2.8 is irrelevant. There has been no attempt to "bind the states under foreign statutes or case law". That is a myth.
  6. Sec. 2.9 is simply not correct. There are many provisions of the U.S. Constitution that delegate power to Congress to pre-empt state law.
  7. Should not use "state" to mean "government". Original meaning is the people in exclusive possession of a territory.
  8. Commission should not just "recommend" to the State General Assembly. Congress passes about 8,000 pages of new legislation each year, containing at least 20,000 separately justiciable unconstitutional provisions. The General Assembly is unlikely to be able to take up more than four or five a session. There is no way they can keep up with the flood of usurpations. The authority to declare federal usurpations needs to be delegated to the commission, and that finding should be sufficient to trigger statewide non-cooperation.
  9. Ten members not enough. The commission needs to be able to divide the work of investigating usurpations if it is to be able to consider even a small part of them. The best number is the number of a traditional grand jury: 23.
  10. Method of appointment subject to undue influence. The speakers of the Senate and House are too likely to be influenced by the desire for federal funds for their pet projects. Most federal usurpations involve such funds, and a commission needs to be independent of such influence. That is why its members need to be selected like members of a grand jury, at random, from a large pool of candidates, weighed toward rural counties. That is why having the candidates chosen by county grand juries makes more sense.
  11. Commission lacks powers of a grand jury. It needs to be able to subpoena witnesses and require them to testify under oath.
  12. No procedure for submitting complaints. It needs to be specified that any citizen may bring a complaint, and not just about congressional legislation. Most usurpations are not legislative.
  13. The Legislature doesn't "nullify". It can direct non-cooperation, but nullification is the abandonment of the usurpation effort, not the resistance that brings that abandonment. (Sec. 3.d)
  14. A bill can't bind a future legislature. 3-1-124 doesn't work.
  15. Doesn't provide for resistance by state citizens. Most of the non-cooperation that is likely to be effective will be by private citizens, but the state needs to defend them in doing so.
  16. It doesn't provide a budget. Anything like this is going to require some funding.
See Revised Tennessee Nullification Bills and State Nullification of Federal Action.

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