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Taco John
03-22-2010, 12:44 AM
Nullification in a Nutshell

Written by Patrick Krey
Thursday, 18 February 2010 09:00


The “Principles of 98,” as they came to be known, are rarely discussed in modern history lectures even though these are integral to understanding how our federal Constitution was intended to function. These are the principles of state interposition or nullification that assert that if the federal government fails to check itself through one of its three branches, then it would be up to the states to rein in the feds.

The main basis for the theory is that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers. As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy. The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries.

The man widely regarded as the “Father of the Constitution,” James Madison, described just how a federal system would work in his essay Federalist No. 51. Madison, encouraging his fellow countrymen to ratify the newly drafted Constitution, described a system of horizontal as well as vertical checks and balances between the federal and state governments — a system known as federalism. “Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison, joined by Thomas Jefferson, would later go on to expand upon this in the famous Kentucky and Virginia Resolutions of 1798. The federal government had recently passed the blatantly unconstitutional and shameful Alien and Sedition Acts to silence and intimidate political enemies. Those despicable acts were instituted by advocates of unwritten constitutional power and a more robust central government. Both Jefferson and Madison argued that the states constitutionally had the right to refuse not only to comply with such unconstitutional actions of the federal government, but also to actively prevent the feds from enforcing them within their state boundaries.

These visionaries and their resolutions gave a voice to a peaceful revolution of constitutional principles that would govern this great nation for years to come. Many states have in fact utilized state nullification to check the federal government throughout the history of our Republic. From the Fugitive Slave Act to unpopular tariffs, states did indeed nullify federal laws they found to be unconstitutional.

Nullification has started to be mentioned in the news, as states have once more started to utilize the practice to resist federal overreaching. Many states have either passed or proposed legislation or amendments to their state constitutions that nullify federal laws in the areas of firearms, medical marijuana, and healthcare, to name just a few.

http://www.thenewamerican.com/index.php/history/american/2971-nullification-in-a-nutshell

Jenson71
03-22-2010, 12:55 AM
We are a nation of laws. In order to interpret laws and examine their constitutionality, we have an independent judicial system.

Chiefshrink
03-22-2010, 01:01 AM
This will be interesting to watch for sure. Let's hope the "States thumb their nose at the Federal Govt. and if I am correct about Obama and his temperment you will see him eventually finally lose it as many States start to reject this legislation in law suits filed galore. Yes his bark will be much louder with no bite at all. The rest of world has figured this out about "O" and it is now time for the American people to call this guy's bluff.

Chiefshrink
03-22-2010, 01:03 AM
We are a nation of laws. In order to interpret laws and examine their constitutionality, we have an independent judicial system.

Precisely, the States are just following the Constitution here Jenson. Oh but the Constitution is a "living breathing document" to you which means really the Constitution is relative which means the Constitution can mean whatever you want it to say on any given a.m. you wake and decide that the Constitution just isn't fair:(

Taco John
03-22-2010, 01:05 AM
This country is about to get a lot more conservative at the state level. For all the talk about what's going to happen in DC, what's really going to matter are all the seats that get picked up across the beltway in the red and borderline states like Washington State. Passing a partisain reform like this without a single Republican vote was politically stupid. I understand their rationalization for doing it. But the ideological divide between the parties just became irrepairable. Democrats are in real trouble right now at the state level.

Jenson71
03-22-2010, 01:07 AM
Precisely, the States are just following the Constitution here Jenson. Oh but the Constitution is a "living breathing document" to you which means really the Constitution is relative which means the Constitution can mean whatever you want it to say on any given a.m. you wake and decide that the Constitution just isn't fair:(

How are the States declaring nullification on laws following the Constitution? They are doing so using a very debatable perspective. In other words, they are declaring the Constitution to mean what they view it means, and someone or another state could just as well argue the opposite outcome.

Taco John
03-22-2010, 01:18 AM
How are the States declaring nullification on laws following the Constitution? They are doing so using a very debatable perspective. In other words, they are declaring the Constitution to mean what they view it means, and someone or another state could just as well argue the opposite outcome.

How is the federal government mandating that citizens have to purchase insurance services or face fines from a federal taxing body constitutional? The states are actually doing their job here by protecting their citizens from encroachment on their life, liberty, and property.

This thing is far from over. The Democrats will pay for passing partisain sweeping reform by losing ground in state legislatures this November, where conservative candidates will win by talking about the Tenth Amendment and repealing the bill through the protection of the state. God help us if the Supreme Court rules against the states. God help us.

Jenson71
03-22-2010, 01:20 AM
How is the federal government mandating that citizens have to purchase insurance services or face fines from a federal taxing body constitutional? The states are actually doing their job here by protecting their citizens from encroachment on their life, liberty, and property.


I'm not arguing here that it is. I'm arguing against the idea that states have some sort of authority on constitutional interpretation that allows them to declare a federal law null.

Taco John
03-22-2010, 01:25 AM
I'm not arguing here that it is. I'm arguing against the idea that states have some sort of authority on constitutional interpretation that allows them to declare a federal law null.

The Founders gave us the 9th and 10th Amendments for a reason, and we're about to get a front row history seat why.

Jenson71
03-22-2010, 01:32 AM
The Founders gave us the 9th and 10th Amendments for a reason, and we're about to get a front row history seat why.

Because of our common law system, you can also determine their relevance due to how the federal court system has applied an interpretation of those amendments to various situations.

Chiefshrink
03-22-2010, 01:35 AM
The Founders gave us the 9th and 10th Amendments for a reason, and we're about to get a front row history seat why.

Precisely! But it is unfortunate that the Supreme Court is 5-4 liberal but what might be in our favor albeit a little favor is the fact that "O" dissed the SC publically during his State of the Union. Small chance I'll admit but it sure doesn't help his cause when as you say this will go all the way to the SC.:shake:

Jenson71
03-22-2010, 01:37 AM
Precisely! But it is unfortunate that the Supreme Court is 5-4 liberal but what might be in our favor albeit a little favor is the fact that "O" dissed the SC publically during his State of the Union. Small chance I'll admit but it sure doesn't help his cause when as you say this will go all the way to the SC.:shake:

The Supreme Court is more like 5-4 conservative.

Chiefshrink
03-22-2010, 01:43 AM
The Supreme Court is more like 5-4 conservative.

Not really. Kennedy puts his finger up in the air everyday and lets the wind decide his vote. You just never know with this guy:shake: Last time he went conservative who knows this next time?

Jenson71
03-22-2010, 01:54 AM
Not really. Kennedy puts his finger up in the air everyday and lets the wind decide his vote. You just never know with this guy:shake: Last time he went conservative who knows this next time?

What do you mean last time? It's not like their last opinion was Citizens United. He is consistently conservative. And in no way possible could he be considered "liberal" overall, as you called him.

AustinChief
03-22-2010, 03:30 AM
I'm not arguing here that it is. I'm arguing against the idea that states have some sort of authority on constitutional interpretation that allows them to declare a federal law null.

Current precedent doesn't allow the States to completely nullify a federal law or regulation but emphatically DOES allow them to not participate in enforcement.

Not sure how far you can enforce the new Health Care package solely by federal means with NO cooperation from a given state...

Otter
03-22-2010, 04:35 AM
You can bet your bottom dollar I'll be moving to any state that allows me to be exempt from this monstrosity, taking part in any class action law suits against the government concerning this and whatever else I can do to protest.

We'll see how well this goes over when those of us who've been towing the line all along start finding loopholes. I didn't want government health care and last I checked this was still America.

jjjayb
03-22-2010, 06:20 AM
You can bet your bottom dollar I'll be moving to any state that allows me to be exempt from this monstrosity, taking part in any class action law suits against the government concerning this and whatever else I can do to protest.

We'll see how well this goes over when those of us who've been towing the line all along start finding loopholes. I didn't want government health care and last I checked this was still America.

You can only piss on the productive people in this country for so long. Democrats have woken a sleeping giant.

'Hamas' Jenkins
03-22-2010, 06:34 AM
Elastic Clause.

jettio
03-22-2010, 07:43 AM
How is the federal government mandating that citizens have to purchase insurance services or face fines from a federal taxing body constitutional? The states are actually doing their job here by protecting their citizens from encroachment on their life, liberty, and property.

This thing is far from over. The Democrats will pay for passing partisain sweeping reform by losing ground in state legislatures this November, where conservative candidates will win by talking about the Tenth Amendment and repealing the bill through the protection of the state. God help us if the Supreme Court rules against the states. God help us.

Yeah, people are really going to want state legislatures populated by a bunch of people rebelling against the federal government over one single law.

Don't confuse intense uninformed passion from a few people into any kind of widespread movement.

patteeu
03-22-2010, 07:44 AM
We are a nation of laws. In order to interpret laws and examine their constitutionality, we have an independent judicial system.

This isn't right. We have three co-equal branches of government, all of which have a duty to interpret laws and examine their constitutionality. We also have states who should not allow the federal government to overstep the bounds of it's delegated authority.

patteeu
03-22-2010, 07:46 AM
How are the States declaring nullification on laws following the Constitution? They are doing so using a very debatable perspective. In other words, they are declaring the Constitution to mean what they view it means, and someone or another state could just as well argue the opposite outcome.

You believe that the Supreme Court, by some magical virtue, is able to flawlessly interpret the Constitution despite the fact that it's members don't always agree while the states can't do so because they may disagree with each other?

patteeu
03-22-2010, 07:49 AM
What do you mean last time? It's not like their last opinion was Citizens United. He is consistently conservative. And in no way possible could he be considered "liberal" overall, as you called him.

I agree with you that the SCOTUS is at least nominally 5-4 conservative right now, but it's laughable to say that Kennedy is consistently conservative. He's a wild card who I'd describe as unreliably conservative.

BucEyedPea
03-22-2010, 07:51 AM
Don't confuse intense uninformed passion from a few people into any kind of widespread movement.

Did you see how close that vote was? How the polls spoke?
It's not just a few people. The country is clearly divided. Not that you need a widespread movement to win something. The American Revolutions was started by the few.

Jenson71
03-22-2010, 08:54 AM
This isn't right. We have three co-equal branches of government, all of which have a duty to interpret laws and examine their constitutionality. We also have states who should not allow the federal government to overstep the bounds of it's delegated authority.

The authority rests with the courts, though every branch, no, every person, has a right and ability to make their own interpretations and examinations.

Jenson71
03-22-2010, 08:55 AM
You believe that the Supreme Court, by some magical virtue, is able to flawlessly interpret the Constitution despite the fact that it's members don't always agree while the states can't do so because they may disagree with each other?

Flawlessly? God no. Authoritatively? God yes.

Jenson71
03-22-2010, 08:58 AM
I agree with you that the SCOTUS is at least nominally 5-4 conservative right now, but it's laughable to say that Kennedy is consistently conservative. He's a wild card who I'd describe as unreliably conservative.

Laughable? Because he went with precedent in 1992 or with Kelo? I don't mean "always" by consistent. I mean "regularly."

Give me your percentages of "wild card" -- does he vote liberal as much as he votes conservative? 40-60?

patteeu
03-22-2010, 09:21 AM
The authority rests with the courts, though every branch, no, every person, has a right and ability to make their own interpretations and examinations.

The courts have no greater authority than the other two branches of government when it comes to interpreting the constitution. It is only by convention that we treat it as if it does. The judiciary is not the supreme branch of government, it's a co-equal branch.

Amnorix
03-22-2010, 09:32 AM
TJ -- how do you respond to the fact that your God-on-all-things-Constitutional, James Madison, opposed it conceptually?

patteeu
03-22-2010, 09:36 AM
Laughable? Because he went with precedent in 1992 or with Kelo? I don't mean "always" by consistent. I mean "regularly."

Give me your percentages of "wild card" -- does he vote liberal as much as he votes conservative? 40-60?

Because he came down on the liberal side in 1992's Planned Parenthood decision and Kelo, yes. And on detainee treatment in Boumediene and Hamdan. And on his view that capital punishment should be restricted and that the interpretation of the equal protection clause should be expanded (gay rights).

He's probably voted with the conservative side more often than not, which is why I agree with you that there is currently at least a nominal conservative majority, but Justice Kennedy isn't close to being a reliably conservative vote. I don't know the statistics, but I'd bet that he's voted with Souter, Breyer, Ginsberg, and Stevens more often than any other conservative on the court by a pretty wide margin.

Taco John
03-22-2010, 10:01 AM
TJ -- how do you respond to the fact that your God-on-all-things-Constitutional, James Madison, opposed it conceptually?

I think Jefferson and Madison have both been proven wise on their objections to the Constitution. Their concerns have proven to be well founded. I would much rather prefer the Articles of Confederation, and am proud to admit as much. But if we're going to have a constitution, we should follow it. Unfortnately, we dont. We have turned government into the master and the people into its slaves.

Amnorix
03-22-2010, 10:10 AM
I think Jefferson and Madison have both been proven wise on their objections to the Constitution. Their concerns have proven to be well founded. I would much rather prefer the Articles of Confederation, and am proud to admit as much. But if we're going to have a constitution, we should follow it. Unfortnately, we dont. We have turned government into the master and the people into its slaves.


First, this isn't really an answer of my question, it's a dodge.

Second, nullification isn't in the Constitution, nor does it even make sense under the scheme envisioned by the Constitution, as James Madison himself said.

Third, your (and BEP's) preference for the Articles of Confederation are obvious, and it's really what causes you so much trouble in reading hte Consitutiton. You keep WANTING it to be like the Articles, which they aren't, and weren't intended to be.

It took a mere 10 years for the Founding FAthers to realize that the Articles were a completely dysfunctional system of government that simply could not succeed. In fact, confederate systems of government are so inherently weak that they basically never succed anywhere, ever.

BucEyedPea
03-22-2010, 10:56 AM
First, this isn't really an answer of my question, it's a dodge.

Second, nullification isn't in the Constitution, nor does it even make sense under the scheme envisioned by the Constitution, as James Madison himself said.

Third, your (and BEP's) preference for the Articles of Confederation are obvious, and it's really what causes you so much trouble in reading hte Consitutiton. You keep WANTING it to be like the Articles, which they aren't, and weren't intended to be.

It took a mere 10 years for the Founding FAthers to realize that the Articles were a completely dysfunctional system of government that simply could not succeed. In fact, confederate systems of government are so inherently weak that they basically never succed anywhere, ever.

I never said I had a preference for the AofC. You're creating a strawman argument here. We prefer our an originalist interpretation of the Constitution which limited Federal Power and was a document of "specific and enumerated" powers. Get it right and stop dodging.

There is precedent for nullification in this country in the early days of the Republic including by your own state where it was used successfully. It was also used successfully when Bush tried to implement Real ID. The state's didn't enforce it.

Jenson71
03-22-2010, 11:22 AM
The courts have no greater authority than the other two branches of government when it comes to interpreting the constitution. It is only by convention that we treat it as if it does. The judiciary is not the supreme branch of government, it's a co-equal branch.

Yes, I'm going by conventions standards. It was a smart move, and it has become just as strong as a law.

Jenson71
03-22-2010, 11:24 AM
Because he came down on the liberal side in 1992's Planned Parenthood decision and Kelo, yes. And on detainee treatment in Boumediene and Hamdan. And on his view that capital punishment should be restricted and that the interpretation of the equal protection clause should be expanded (gay rights).

He's probably voted with the conservative side more often than not, which is why I agree with you that there is currently at least a nominal conservative majority, but Justice Kennedy isn't close to being a reliably conservative vote. I don't know the statistics, but I'd bet that he's voted with Souter, Breyer, Ginsberg, and Stevens more often than any other conservative on the court by a pretty wide margin.

Sure, he's probably "less conservative" than the rest, just like you might be "less conservative" in the eyes of Taco John. But he's a regular conservative.

Taco John
03-22-2010, 11:26 AM
Sure, he's probably "less conservative" than the rest, just like you might be "less conservative" in the eyes of Taco John. But he's a regular conservative.

I don't find the term "conservative" to be particularly useful. I'll use it because people have a general sense of what it means to them. But it's not a solid term as far as I'm concerned. The thread that holds "conservativism" together seems to be more emotional than thoughtful.

Jenson71
03-22-2010, 11:33 AM
Because he came down on the liberal side in 1992's Planned Parenthood decision and Kelo, yes. And on detainee treatment in Boumediene and Hamdan. And on his view that capital punishment should be restricted and that the interpretation of the equal protection clause should be expanded (gay rights).

Yeah. A few very politically charged and highly publicized cases in which he voted opposite of the bedrock conservatives aren't going to change my idea that he is regularly conservative, especially that he isn't a "wild card"

I get that he's frustrating to staunch conservatives. But he's not a wild card.

Amnorix
03-22-2010, 11:33 AM
I never said I had a preference for the AofC. You're creating a strawman argument here. We prefer our an originalist interpretation of the Constitution which limited Federal Power and was a document of "specific and enumerated" powers. Get it right and stop dodging.

You seem confused. No one has asked me anything, so how can I be dodging? It's TJ who dodged my question. He has even had a reply subsequent to yours and still hasn't answered it.


Edit to note: Hey, this is a classic case of projection!!!

ROFL


Second, while you may say that you support the Constitution, your innumerable posts on here really reflect that you don't like it to begin with, and vastly prefer the Articles of Confederation approach. You have, for example, argued in support of the concept that the Constitution wasn't even properly adopted, suggesting that you don't even think it should be enforceable to begin with.

There is precedent for nullification in this country in the early days of the Republic including by your own state where it was used successfully. It was also used successfully when Bush tried to implement Real ID. The state's didn't enforce it.

While various acts of the states have nullified the EFFECTIVENESS of various federal laws, no law has been nullified in the manner that you suggest. The passive resistance to the Fugitive Slave Law, which I assume is the example of "my state" that you're citing to, is no different.

Jenson71
03-22-2010, 11:35 AM
I don't find the term "conservative" to be particularly useful. I'll use it because people have a general sense of what it means to them. But it's not a solid term as far as I'm concerned. The thread that holds "conservativism" together seems to be more emotional than thoughtful.

Well, people that analyze the decisions of Supreme Court justices to determine if they are more conservative or liberal have some sort of ruling guidelines that are very agreeable. Most also break it down by "economically" and "socially"

patteeu
03-22-2010, 12:18 PM
Sure, he's probably "less conservative" than the rest, just like you might be "less conservative" in the eyes of Taco John. But he's a regular conservative.

No, he's not a regular conservative, he's an unreliable conservative. If Taco John sees me as less conservative and, in turn, I see Justice Kennedy as unreliably conservative, he can't be very conservative. It just looks that way when you're sipping lattes with the other students at the coffeehouse who are flirting with socialist idealism in the naivete of their youth. :)

jettio
03-22-2010, 01:00 PM
Did you see how close that vote was? How the polls spoke?
It's not just a few people. The country is clearly divided. Not that you need a widespread movement to win something. The American Revolutions was started by the few.

Did you see the polls in 2002-2003 that showed that the majority of the American people thought Saddam had something to do with the 9/11 terrorist attack by Al Qaeda?

The plain fact is that a lot of the opposition to the bill was drummed up with misinformation.

15-25 points worth of the opposition to the bill is based on people being too busy with their daily lives to pay much attention and figuring there must be something wrong if a democratic president can not get it passed with a democratic congress.

Now that they got the job done. The polls are going to show a majority in favor of it.

I bet that by the end of the week, the polls will show a majority in favor of it.

Mr. Flopnuts
03-22-2010, 01:03 PM
Current precedent doesn't allow the States to completely nullify a federal law or regulation but emphatically DOES allow them to not participate in enforcement.

Not sure how far you can enforce the new Health Care package solely by federal means with NO cooperation from a given state...

The same way they've dealt with seatbelt laws, auto insurance, and marijuana laws I'm guessing. Comply, or lose federal funding.

orange
03-22-2010, 01:15 PM
The same way they've dealt with seatbelt laws, auto insurance, and marijuana laws I'm guessing. Comply, or lose federal funding.

Also, there's not a lot that impacts the State governments. They've never been part of collecting Federal Taxes and that's not going to change. And the regulations on insurance companies will be a matter for Federal courts. One thing that WILL change is the amount of Federal subsidy for Medicaid - much higher in the new bill. States aren't going to want to turn that down.

Lawsuits may be their only resort.

Or...

https://www.jcps.k12.nc.us/Schools/brs/PublishingImages/Confederate_Flag_History%5B1%5D_small.jpg