The fact is, it's not hard at all to find an abundance of support for nullification in our country's history
by Larry Simons
November 6, 2014
On last Friday's telecast of Real Time with Bill Maher, the topic was the 'then' upcoming election and why so very few people in the country actually vote based on issues rather than on party lines. Maher mentions that there has been a meme circulating throughout this year's election that "there aren't any nuts out there like there were in 2010". Maher mentions Iowa Senator hopeful Joni Ernst and her stances on some issues [she won on Tuesday].
"Have you heard about this nut in Iowa, Joni Ernst? She supports legislation to arrest federal officials who try to implement Obamacare. Right away, that should be disqualifying. She thinks states can nullify laws. This is crackpot talk radio shit. She doesn't believe in climate change. That's a hoax. She's for eliminating the minimum wage altogether. Eliminating the EPA, the IRS..I mean, she's a total nut."
I will be totally honest. Until Maher said her name, I had never heard of Joni Ernst. So, defending everything she stands for is not the purpose of my story. But I will defend her stance on nullification, since the concept of nullification is one of the oldest principles espoused by the founding fathers, Jefferson and Madison in particular. Nullification was the central theme to Jefferson and Madison's Virginia and Kentucky Resolutions of 1798.
Ernst is correct. States can nullify laws. And they have. Two recent examples include the medical use of marijuana and the REAL ID Act of 2005. As of this writing, 23 states have nullified federal medical marijuana laws and have made legal its use. It is still on the books that medical cannabis is illegal under federal law, but 23 states and Washington D.C. have shown that resistance of the states, when it becomes so severe, the federal government backs off. This is a perfect example of nullification, and of all people, Bill Maher should be applauding it, since he is an admitted marijuana user.
The REAL ID Act of 2005 is another example of the states simply saying "no" to a federal law, and the resistance becomes so widespread and severe, that the federal government just gives up on enforcing it. The REAL ID Act was signed into law by President George W. Bush in May of 2005. Only 21 states are compliant with this law, which means 29 are not. This is nullification, the act of states saying "no" to unconstitutional federal laws.
The bottom line on nullification is this: An unconstitutional federal law is no law at all. All of the founders, even Alexander Hamilton, understood this. Most would argue that this is not the case because most courts in America have ruled that nullification is unconstitutional. The whole idea behind nullification is that the "federal government cannot be permitted to hold a monopoly on constitutional interpretation", as author Thomas E. Woods writes in 'Nullification: How to Resist Federal Tyranny In the 21st Century".
Woods writes, "If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow--regardless of elections, the separation of powers and other much-touted limits on government power."
Checks and balances coming from the government's three branches [Executive, Judicial and Legislative] are not always enough to provide true protection of rights for the American people, because these three branches can simply combine their power and go against the rights reserved for the people living in free and independent states. But nullification, the right of the states to resist unconstitutional federal laws, is the true check on federal power.
Alexander Hamilton wrote in Federalist #78:
"There is no position which depends on clearer principles, than 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"
Hamilton is clear in saying that no judge can exercise their own will over the people in defiance of the Constitution. So, anyone who argues that nullification does not exist because the courts have all ruled that it is unconstitutional, clearly has not heeded the words of Hamilton.
Hamilton assumed, or hoped that the courts would get things right. But, naturally, we know that this is not always the case. How can people be expected to have faith in the courts as impartial arbiters since the courts themselves are a branch of the federal government?
Woods writes, "The Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government's actions, is itself a branch of the federal government. So, in a dispute between the states and the federal government, the resolution is to come from...the federal government?"
Giving the courts the ultimate power to rule on disputes between states and the federal government would be the equivalent to there being a dispute in a baseball game between opposing teams [Team A and Team B] of whether Team A's shortstop actually tagged out the Team B's base stealer, and the final decision is not an impartial arbiter like an umpire, but the manager of Team B. What ruling do you think the manager will make?
The Supremacy clause of the Constitution was for this purpose, to make invalid any federal law that is not pursuant of the Constitution. Many falsely believe that the Supremacy clause refers to the laws of the federal government having supremacy over state law. This is false, but people like Bill Maher think it's fact.
The Supremacy clause states:
"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding"
They key phrase in this clause is "which shall be made in pursuance thereof". In other words, all laws must be in pursuant [agreeable, harmonious] with the Constitution. Needless to say, if a law is not pursuant with the Constitution, it is simply not a law. Many will still conclude that the Supreme Court and other courts have ruled that nullification is unconstitutional, despite Hamilton himself stating "No legislative act, therefore, contrary to the Constitution, can be valid."
Many people claim that the Supreme Court has always done its job in upholding the Constitution and interpreting it correctly , but we clearly know this is not the case. For example, Obamacare is clearly unconstitutional because nowhere in the Constitution does it state that one of the federal government's enumerated powers is regulating health care.
The Supreme Court knew this. They also knew Obamacare violated the Commerce clause of the Constitution, so they decided to make it "constitutional" by enacting it under their taxing powers as a direct tax. This too is unconstitutional because it clearly violates Article 1, Section 9 of the Constitution, which states:
"No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken"
The direct tax of Obamacare is not subject to apportionment rule [in proportion to the Census], as it must be, because it's a well know fact that not everyone is subject to this tax. As of last year, as many as 9 different groups of individuals have been exempted from the Obamacare tax. If any individual people are exempted, this by definition, is not a direct tax, as Obamacare claims to be and therefore, it violates the Constitution's direct tax clause. This is why Obamacare could and should simply be nullified.
Maher is not the only one who fails to comprehend the nullification principle, so I'm not just picking on him. Our Supreme Court also has no clue. If more Americans just stood up and said "no", as in the cases of medical cannabis and the REAL ID Act, the federal government would have no choice but to cave in.