I sent a copy of Publius-Huldah’s excellent legal essay to my son, who gobbled it up and then took the occasion of his morning drive to call me about it. You see, he’s a fan of law prof Randy Barnett so wanted to sort out in his mind why he found Hulda’s arguments, an Old Testament prophetess, by the way, so compelling.
Huldah’s piece should be sent to the widest possible audience but not with the intent to expand scholarly discourse but to convince states to develop their own plans for resistance, if necessary, according to the Founders’ blueprint. A call for preparation, not a call to conference.
If you’ll recall my story about giving the closing toast at a law professor’s birthday party in Ukraine in 1991, his colleagues kept asking me all night about the Constitution, questions I couldn’t answer in any meaningful context. When I gave the toast, I recited from my trusty Cato Institute booklet the “we hold these truths to be self-evident” paragraph (what I call the Homer Simpson clause) and the next paragraph about the right of the people to “alter or abolish” (below) from the Declaration of Independence.
Standing there, glasses held high, probably a little drunk, in the few minutes it took me read those lines with translation, everyone had tears rolling down their cheeks. After the meal they rushed up to me saying, “Now we understand Constitution.”
Those were heady days in the Ukraine as the constituent states of the old USSR were completing plans to sever their ties with, quite frankly, a mean king in Moscow, and forging new nations. Military action was still uncertain. A few, not all, made that break completely, and so far at least, are under a full head of steam back to the sort of human normalcy that is required to form that more perfect union we forged in 1787.
But I left that party the one who had been the more edified, for I had never really understood the handshake between those two documents until they pointed it out. Huldah certainly sees that as well, and I would argue that one cannot really be a very good constitutional scholar (which I am not, by the way) without understanding the true nature of the compact between the federal government, the states, and the people.
Huldah’s (also a lawyer) argument is a scholarly one, and while Randy Barnett’s argument is likewise scholarly, each advocating an opposite legal conclusion, as lawyers are wont to do, Barnett’s attempts to “spin” the words of the others’ sources, in this case, James Madison, is a dead giveaway as to who holds the stronger hand.
It is also troubling, for, as an aside, lawyers proving lawyers to be disingenuous is a big deal with me. It calls to mind that in the Left-Right politics of our day, in science, history, philosophy, and certainly politics, it seems the ones with the least grasp, or even appreciation for, facts and truth, also seem to bring the biggest guns to the table, thanks to the politics of our time. Hayek writes about all the 19th Century historians who totally ignored facts equally as compelling as Madison’s words are to Barnett, in order to continue a predetermined dishonest narrative about the impact of capitalism on society in Europe. Hayek wrote as if somewhat bemused, as if he knew this to be the norm in academe, but considering the stakes today, I’d be more inclined to send Vinnie and Augie over to help get the rules straight as to just what the truth really is.
So, I look upon the situation differently once the debate leaves the field of scholarship and begins to carry the weight of political power. It is no longer funny when the arguments carrying the most political guns are also the arguments with the fewest facts. When pseudo-science can call Science a liar (global warming) and get away with it, I worry. When leftwing faux-intellectuals can call true intellectuals liars, and get away with it, I worry. So when conservative lawyers must tell other conservative lawyers they have misquoted, I worry, but for the Truth, not the law.
Publius-Huldah lays out the reasons why.
She states the anti-nullification deniers’ argument is predicated on four points, which she dispenses without any help from me.
- States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it; ( VB: Of course they do)
- Nullification is literally impossible; (VB: Of course it isn’t)
- The Supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; (VB: Of course it doesn’t, just ask the Supreme Soviet)
- James Madison, Father of Our Constitution, opposed nullification. (VB: Of course he didn’t)
I only want to add a little to Points 2 and 3, for by “impossible” Barnett, et al can only be saying that a law is self-enforcing, much as Madelaine Albright believed the treaty she negotiated with North Korea to halt nuclear testing to be. When informed they were still testing, I think “impossible” may even have been one of the words she used instead of admitting she was gobsmacked. There is an element of isolated naifery in that position.
Of course nullification is possible, for all it requires is the will to do it.
Secondly, the Supreme Court not only is not the Final Word, it can never be the Final Word. It is only the final legal word, for the politics of the issue can always be settled by a different means. (Clausewitz).
But consider these other types of nullification that are really just a little outside the scope of legal debate:
Nullification by Brinksmanship
Witness the attempt by South Carolina to nullify the 1828 Tariff Act. As Huldah cites the two preconditions to “legal nullification,” South Carolina was acting illegally for they attempted to nullify a constitutional law, one which applied to all the states equally. But because Andy Jackson called up the troops instead of sending the case over to the Supreme Court, with sabres rattling, Congress passed a more suitable tariff bill. The troop measure was called off and South Carolina repealed their nullification act. Though acting illegally, South Carolina still got what she wanted, which was just as effective as a legal nullification, I suppose.
Moral Nullification
The Fugitive Slave Act of 1850 arose from the Compromise of 1850, so take a second look at that word “compromise” especially as Democrats use it today. To placate the South, Congress tried to shut down the Underground Railroad, setting loose hundreds of bounty hunters into the North, ordering federal marshals to arrest and detain fugitive slaves, (under penalty of law), forbade anyone to assist fugitive slaves, and denied any captured slave access to any court for habeas corpus (so I assume a lot of legally-free slaves were put back into the “system” if found without their papers).
In 1854 the Wisconsin Supreme Court declared the Act to be unconstitutional (thus making Wisconsin the first “sanctuary state” I guess) but then lost in front of the Supreme Court in 1859 (Ableman v Booth). The High Court (under Taney, yeah, that Taney) ruled that the state courts could not issue a writ of habeas corpus to free a man in federal custody accused of violating federal law, i.e., aiding and abetting a slave to get away from slavery…which this slave did anyway. A state’s right to nullify on the basis of a a deeply held moral position was denied.
But in 1850 the Vermont legislature passed a law ordering state officials to assist rather than arrest fugitive slaves, effectively nullifying the Act there. After huffing and puffing and threatening armed intervention the feds did nothing about it.
There were also acts of popular nullification during this period, such as juries refusing to convict people arrested and charged with violation of the Act, of which there were numerous.
Why nullification efforts against this Act are important is that they were based on irresolute moral principles that stood exactly opposite to those of the federal law. I’m not sure what citations the Wisconsin courts used to order the release of Mr Booth, the federal prisoner, but in the end Wisconsin invoked a de facto right of nullification based on its deep opposition to slavery, and since there were almost assuredly Christians still in Wisconsin in those days, their deep Christian opposition even.
But compare to Roe v Wade, where the Court, acting as a legislature, created a universal right to an abortion, thus taking away the historic right of the states to decide when and if abortion could occur. In my opinion the Court acted unconstitutionally, only who can challenge, other than a future Court? The entire constitutional framework was shattered.
I don’t want to start a new (actually rather old) legal argument but rather point out that a type of popular moral nullification against Roe still moves apace.
You see, Roe v Wade so assaulted the moral fiber of our society, much like the Fugitive Slave Act of 1850, that the issue is more vituperative now than it ever was in 1973. In 1973 no one in Georgia cared that someone could get an abortion in New York, and no one in New York cared that no one in Georgia couldn’t.
So Roe v Wade represents a kind of moral nullification which goes to the basic tenets expressed by Jefferson in the Declaration. This kind of nullification can sit alongside the Wisconsin de facto nullification of the Fugitive Slave Act, but each having an opposite result inasmuch as the one in Wisconsin was used to protect an immovable moral principle (against slavery) while the other assaulted equally immovable moral principles. (Roe’s effect, if not its purpose, was to create a competing ethos with Good, essentially granting Evil an equal seat at the table, something leftists do well when given enough political leeway).
It’s ironic that the Wisconsin Court’s attempt to protect strongly-held moral premises were deemed unconstitutional ,while abortion-in-your face is de jure constitutional since no one knows how to countermand a law written by the Court.
But while in Wisconsin only one man in jail was involved, under Roe millions of unborn are involved every year. But slowly Roe is being nullified-by-practice, for every year fewer and fewer abortions are performed in fewer and fewer locations, today requiring a clearly pro-abortionist government to make broader and broader strides to actively market abortion as a good thing, by making it both desirable in the popular culture on the basis of convenience and vanity, and free under Obamacare. Still, it’s future does not look good, since, for one, it has hitched itself to a falling star; statism.
So, how a law plays out in the hearts and minds of men matters. Also compare the Court’s ending Jim Crow with Brown v Board of Education with the Court making abortion universal with Roe. By ending Jim Crow the Warren Court appealed to higher laws in individuals’ souls than the Jim Crow laws invoked to justify segregation. Once understood the public came around. in part because most southern Christian women never completely bought into Jim Crow in the first place. It was a guy thing, mostly. (I’m from that time.) So the process to undo Jim Crow took no more than twenty years, aided in part that by the 1980s, almost 100% of racism in America had migrated into the Democrat Party’s plantation system. By contrast, when the Court in Roe imposed acts contrary to deep moral understandings, the people rebelled reflexively so that, after a twenty year love affair, they went the other way, away from it, which continues to slide. Other than leftwing promoters like Planned Parenthood, the bulk of true pro-abortionists are about the same size, and probably the same demographic, as Sandra Fluke’s slut army.
Popular nullification of any law or form of government is impossible to get one’s arms around, yet it’s real. The best example is the Soviet Union, who for years filled its gulags with “refuseniks” only to find still, nothing worked. Stalin called it ‘wrecking” but in the end it was simply the people, almost all the people, refusing to go along in millions of different and subtle ways, denying the State the things it wanted to achieve. This is probably the ultimate nullification, but certainly not the most preferred, but as Jefferson intimated, it operates according to natural law.
So, it’s when the government, with the help of the High Court, or without it, attempts to go against the moral grain of a society, that nullification works best, invoking Jefferson’s words to best express this sentiment:
“…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
As Huldah suggests, Jefferson’s invocation in the Declaration is as close to a Final Word as you can get, for it lays out the moral right and power, given by God, for a people not only to nullify a tea tax, but permanently separate from the King who imposed it. It is a hill upon which men and women will plant their flag.
In-Your-Face Nullification
Several states have passed laws authorizing various levels of marijuana use nullifying federal anti-marijuana laws and regulations. Every user in those states are under notice that if they come to the attention of federal law enforcement they are on their own. But in most of the states where marijuana use is legal they are so low on the list of federal priorities, such as trying to smuggle assault weapons into Mexico, or finding out-of-code downspouts on houses, to be able to bother.
Should the states license or open their own marijuana storefronts, it will be curious to see if the feds will then say “enough of this” and move to shut those stores down, or, simply make sure they get their cut of the taxes. The day the federal government places an excise tax on marijuana will be the day they have conceded the nullification issue. That day is looming because of the potential billions of dollars of new revenue involved.
It should be clear why no Congress and no Supreme Court ever wants to have to try to make a Final adjudication on this scholarly debate about Nullification, for by attempting to declare it Final, they insure that it never can be, and will more likely come to some unwanted end.
The coming Court decisions on Obamacare versus various religious organizations will have much to say as to how this nullification issue will play out in real life.
I’ve urged people for years never to make legal arguments about moral issues, of defend moral issues with legal arguments. Apples and oranges. Doing so only prolongs a long and possibly painful temporary end to the matter.
Secession and Nullification
Neil Stevens, at Redstate.com, back in the day when readers were still allowed to comment negatively on the received wisdom of the editors, used to arrogate the notion that the issue of secession had been settled with Lincoln v Davis, 1865, forgetting, or perhaps never really understanding the real meaning of Jefferson’s quote, above, which also was a declaration of secession, one founded on very clear and unambiguous human rights, none of which can ever be taken away by any human agency.
So until a new one comes along, Constitutional Congress v George III still trumps Davis v Lincoln.
To say that nullification doesn’t exist is like saying robbery doesn’t exist because there is a law against it. No law can prevent me from robbing a liquor store, it can only catch me and punish me.
If they can catch me.
Nullification is the ultimate threat, for only the legislatures can do it, and it is only after they do it can we examine what the government can do to to reset the clock or punish the law-breakers.
