BillWalker
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The author fails to acknowledge the obvious. First, that he is discussing nullification OF LAW. Hence the issue is about law. For his information, judges have had the "guts" to nullify laws federally since 1804 and in some states regarding state law before then. As to having "permission" it's called the Constitution. The question the author ignores is whether the Constitution permits what he advocates and it does not. It clearly states in the Constitution that it is supreme law and that all state officials are bound to its terms. It clearly states in the Tenth Amendment that those authorities assigned the states are the states and those assigned the federal government are the federal government. Hence, "nullification" of federal laws is a FEDERAL matter, not state.
Besides the author fails to explain or even quote a portion of the Constitution, let alone a judge's ruling (he just says "we don't need stinking judges" presumably because he can't find any other method or means to explain their inconvenience to his "theory") that supports him. If even one judge had ever ruled in his favor he'd be all over it, meaning not even state judges have supported this. Most importantly however to his example of Kentucky is the fact the matter was finally settled in court by judges.
Now as to his comment regarding my pointing out nullification was applied for in 1832. First, I pointed that out because many in nullification think it is some new idea and it is not. Second, the fact it was applied for as I have said indicates those supporting it, who originated it, realized and acknowledge it is a state authority which must be granted to be legal and that means getting an amendment.
Now as to his assumption a convention is far off and the feds will not do it. The difference between nullification and a convention constitutionally is this: nullification puts those who advocate it against judges, the law, the Constitution and the feds giving them the advantage. A convention does the exact opposite. Unlike nullification that cannot be explained or justified by reference to a constitutional clause, Article V mandates a convention and thus the law, the judges etc. have to view refusal, that is to say, nullification by the feds as a violation of the law which it is.
He favors nullification yet says he doesn't think a convention will work. So, in effect, he supports the federal government doing the very thing he himself supports, nullification of provisions of the Constitution. The only difference between him and the "stinking judges" and feds he talks about is not whether the Constitution is nullified but which parts. In reality therefore there is no difference between him and those he criticizes.
I'm sure all have read the decisions of the courts at http://en.wikipedia.org/wiki/Nullification_(U.S._Constitution) so I won't repeat them here. Suffice to say this: the fact the states have submitted applications for a convention proposal of an amendment pretty much settles the question of whether the matter is constitutional. If it were constitutional for a state to nullify a federal statute on its own authority then some court would have recognized this. None have. Thus the states themselves have recognized an amendment is required. The conclusion is obvious: the authority does not exist meaning the action is currently unconstitutional.
As to the state court ruling such an act is constitutional, that is also illogical. The state court, by the terms of all state constitutions, only is granted power by the state constitution meaning by its own terms it can only address state issues. The issue of nullification is related to federal law and therefore the state constitution does not apply because not even the state constitution allows for any state court to make a ruling in another state let alone in all of them. In effect, nullification asks that a single state court or state have the authority to make a ruling in the rest of the states assigning itself the authority to become a federal government unto itself because that state is demanding it and it alone can determine the validity of a law, not the federal government which is expressly assigned the task.
In sum, it is not asking the wolf about the sheep pen. It is about one of the sheep eating the rest. Oh yeah and by the way in certain cases the federal courts have accepted state arguments that federal law is not applicable in a state and thus declared it unconstitutional. But as the Wiki article points out that is not what nullification advocates mean. They refer to the unilateral authority of a state to declare federal laws void.
The author holds an Article V Convention would do no good in his argument for nullification. He states others who hold nullification is unconstitutional are wrong yet he provides no proof where any judge has ever ruled the states have such authority. Obviously therefore for nullification to be constitutional as he urges, it must be by amendment. Given an Article V Convention has had the issue on its agenda since 1832, the oldest such amendment issue in United States history clearly an Article V Convention that favorably found and proposed nullification as an amendment "would do the trick." Therefore his conclusion is false. Obviously he also chooses to ignore or is not aware of the fact that over 700 applications from 49 states already exist for a convention call. The Constitution mandates a call when 34 states submit 34 applications. Obviously the states do not believe as him, that a convention is a fantasy. Otherwise they would not have submitted the applications. You can read the applications at www.foavc.org
While I have no comment regarding most of the material presented, I simply will observe what Mr. Natelson ignores. He asserts an Article V Convention can be limited (presumably by the states and/or Congress). He has never explained and refuses to address in any of his writings the simple fact that Article V allows both Congress and convention to propose "amendments" rather than "amendment." Obviously, if authorized to propose "amendments" this means the body in question cannot be limited to a specific subject or even subjects but has the power and authority to address as many issues as it chooses. Equally important and just as ignored by Mr. Natelson is the fact the states have the authority to reject this proposals, however many, in the ratification process. If by limited, he is referring to this power, then he is correct. If by limited, he is referring to predetermination of subject before a convention, then he is incorrect. As the law of the land was different before the Constitution was enacted, his references to events that took place then have no bearing on our present law of the land anymore than enactments of English law at that time period would have on our present-day Constitution.
"Article V of the US Constitution allows for states to amend the Constitution without the approval of the US Congress. Congress is required by law to call a constitutional convention if 34 state legislatures individually pass a proposed amendment."
This statement is incorrect. Article V does not require that 34 state legislatures individually pass a proposed amendment. In 1931 the Supreme Court states that only what is expressed in Article V is constitutional. Article V mandates a convention call on two thirds application of the states, a simple numeric ratio. There is no mention whatsoever of the states being required to propose an amendment. That is the job of the convention to which the applications are directed. Only the fact the application is to cause a convention call is relevant. The over 700 applications from 49 states can be read at www.foavc.org.