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Madison did not endorse nullification. Just read his Notes on Nullification. Madison carefully avoided enforsing nullification in the Virginia resolutions. He explained in the Report of 1800 that an act of interposition by the states is not legally binding, in contrast to a decision by the courts, which is binding. Also, Madison believed the Supreme Court has the final word on constitutional interpretation and the extent of federal power. He made that quite clear.
9 months, 4 weeks ago on South Carolina: Following James Madison’s Advice to Nullify Obamacare
@derekwilson62 How did that work out for them?
Actually, the Montgomery Advertiser editorial got it right. SB93 says that all federal gun laws are unconstitutional and invalid in Alabama, and it says the legislature shall take measures prevent enforcement of federal gun laws. SB93 is has two major problems.
First, it simply is not the case that all federal gun laws are unconstitutional. It is well-settled that the Second Amendment does not prevent all regulation of guns. The Supreme Court, to which the Constitution gives final jurisdiction, repeatedly has held that guns may be regulated to some extent. The Alabama state legislature does not have the power to change that determination. So, SB93 conflicts with federal law in finding all federal gun regulations invalid. SB93 must yield to federal law under the Supremacy Clause.
Second, SB93 says the legislature shall take measures to prevent enforcement of federal gun laws. It does not limit itself to withholding the assistance of state agencies in enforcing federal law. Rather, it says enforcement of federal law shall be prevented. By its terms, this requires the legislature to prevent enforcement by anyone, including federal agents. Thus, SB93 goes beyond the Printz and New York cases, and would interfere with federal agencies' enforcement of federal law. That is not constitutionally permissible.
So the Advertiser's editorial is on target.
10 months ago on Swatting at Flies
The anti-Obamacare measures passed in Alabama, Wyoming, and Montana clearly are unconstitutional and will never be enforced. The officials in those states know they can't enforce those measures. They won't even try. If you are honest, you will admit that.
The marijuana legalization measures do not even purport to nullify federal law, because they know that wouldn't work. The federal drug laws are still on the books. Federal authorities are free to enforce federal drug laws whenever and wherever they choose, regardless of the Washington and Colorado measures.
1 year, 3 months ago on Six states defy feds
The fate of the Affordable Care Act is going to be settled in the national political arena. If the Republicans can get enough votes in Congress and can win the Presidency, then they can repeal the Affordable Care Act. If not, the ACA will remain the law of the land. It's all going to depend on who has the votes.
This talk about nullification isn't going to amount to anything. The laws and resolutions passed by various states declaring the Affordable Care Act unconstitutional are just so much political grandstanding. Politicians are just trying to score points with their base. They know those nullification laws and resolutions aren't enforceable. Under our constitutional system, the Supreme Court's decision is the final word on constitutionality. The Supreme Court's ruling overrides those state laws and resolutions. To the extent they're inconsistent with the Supreme Court's decision, those state laws and resolutions don't count for anything.
Some states' governors and legislatures are making a big show of declaring that they won't go along with the Affordable Care Act's Medicaid expansion and insurance exchanges. They want people to think they're standing up to the federal government. Hogwash. The Supreme Court's decision says the states don't have to go along with the Medicaid expansion. The states aren't defying federal law when they decline the Medicaid expansion -- they're accepting the Supreme Court's decision. And the Affordable Care Act itself says the state governments don't have to set up insurance exchanges; rather, if the states don't want to do it, the federal government will do it for them. The states aren't defying federal law when they decline to set up exchanges -- they're just doing what Congress said they could do. It's all just so much political grandstanding. In no way whatsoever are the states defying federal law by refusing to participate in the Medicare expansion and the exchanges.
The irony of some states' refusal to set up their own insurance exchanges is that these states are actually ceding some of their sovereignty to Washington by taking that position. The Affordable Care Act says that if the states don't set up the exchanges for their own citizens, the federal government will come in and do it. So the states are giving up their control of the exchanges. If they really cared about state sovereignty, they would set up the exchanges themselves, rather than giving up control to Washington. But it's not really about state sovereignty -- it's just about scoring political points.
There has been talk about the states' criminalizing enforcement of the Affordable Care Act. That's clearly unconstitutional and unenforceable. I assume cooler heads will prevail, and that no state actually will try to do any such thing. But if some nut-job sheriff gets the idea of arresting a federal official who is implementing the Act, that sheriff is going to get slapped with an injunction so fast it will make his head do a full 360. And if he doesn't comply with the injunction, he will have a chance to see the light while he's sitting in jail for contempt. That's a fool's errand.
We've been down this road before. In the 1950s, a number of southern states refused to accept the Supreme Court's decision in Brown v. Board of Education, which banned racially segregated schools. They claimed the Brown decision was an unconstitutional infringement of state sovereignty. They passed laws and resolutions declaring that under the principles of nullification and interposition, they were refusing to obey the supposedly unconstitutional Brown decision. They called for "massive resistance" by the states. Sound familiar? Let's remember what happened to those nullificationists. They went down in flames -- legally, politically, and in the judgment of history. All of their big talk about states' rights and nullification and defying the government ended up meaning nothing. It was just so much empty posturing. The federal government enforced the Supreme Court's decision, the states eventually accepted it, and that was that. That's the way the Constitution is designed to work.
The Supreme Court has made its determination on constitutionality. Now it's up to the people. If they don't want the Affordable Care Act, they can elect a Congress and a President who will get rid of it. That's what this issue is going to come down to -- the votes of the people's representatives. And that's just as it should be. The people through their representatives will decide what they want. Nullification is neither "rightful" nor the "remedy." This talk about nullification is just so much political posturing, with nothing to back it up. It is "full of sound and fury, signifying nothing."
1 year, 8 months ago on We Don't Need No Stinkin' Judges!
This article contains several factual errors.
Most significantly, the central point of this article is based on a factual error. The author asserts that the Supreme Court made a "pronouncement that Congress’ power to tax is unlimited." That is not correct. On the contrary, the exact opposite is true. The Court stated clearly that the power to tax is limited: "Congress's ability to use its taxing power to influence conduct is not without limits. . . . "‘[T]here comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.'"" The Court found that even under the narrowest interpretation of the taxing power, the Affordable Care Act is not a punishment and is within the constitutional taxing power. So, the Court found it unnecessary to specify exactly where the limits of the taxing power might be. There is nothing whatsoever in the Court's opinion that comes close to a "pronouncement that Congress' power to tax is unlimited." That plainly is wrong.
There are other factual errors in this article. The author asserts that the Court's vote against the Commerce Clause argument was 7-2. That's incorrect. The vote on that issue was 5-4, with Justices Ginsburg, Sotomayor, Breyer, and Kagan dissenting.
This article claims the Court held that "Congress cannot force the states to expand Medicaid by establishing state insurance exchanges. . . . This leaves the exchanges in limbo." That is not correct. The Medicaid provision of the Act expands the number of people eligible for Medicaid by revising the eligibility criteria. The Court held that Congress cannot coerce states to accept the Medicaid expansion by threatening to withhold all Medicaid funds. The creation of insurance exchanges was not challenged, and the Court's holding had nothing to do with the insurance exchanges. The provision creating the exchanges was unaffected by the decision, and the exchanges are scheduled to open in 2014.
The author asserts that the Affordable Care Act did not originate in the House. That is incorrect. The Affordable Care Act started out in the House as H.R. 3590. The Act therefore meets the constitutional requirement. It is true that the Senate completely rewrote the original House bill, which initially provided for unrelated tax changes. But that is constitutionally permitted.
The author asserts that "under the Constitution, a tax . . . must be applied for doing something (like earning income or purchasing tobacco or fuel), not for doing nothing." That is not true. The Constitution specifically authorizes head taxes (capitations), which are imposed for merely existing -- i.e. "for doing nothing." This indicates that the framers did not intend to create a requirement that a tax must be based on "doing something." This issue was discussed in the Court's opinion.
The author asserts that the Court "never has converted linguistically the congressional finding of penalty into the judicial declaration of tax." That is not true. In United States v. Sotelo, the Court found that a payment described in a statute as a "penalty" was really a tax: "That the funds due are referred to as a `penalty' . . . does not alter their essential character as taxes." The Court cited that case in its opinion.
These factual errors substantially undermine the argument of this article, in my view.
1 year, 8 months ago on A Vast New Federal Power
This article asserts: "In fact, between 1937 and 1995, the U.S. Supreme Court never once ruled a congressional statute unconstitutional."
That is not accurate. The following summary lists 159 acts of Congress that the Supreme Court declared unconstitutional through 2002. (That number is now up to about 166 or so). Over 60 of those Supreme Court declarations of unconstitutionality were issued between 1937 and 1995. http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf The Supreme Court regularly exercises meaningful review of Acts of Congress, in accordance with its constitutional role.
1 year, 8 months ago on The Supremes: Looking out for their own
@WarrenNorred In the debates in Congress on the 14th Amendment, advocates of the 14th Amendment stated repeatedly that they believed the states were already required to obey the terms of the Bill of Rights, but that the federal government had no enforcement power to compel the states to comply. The 14th Amendment was designed to remedy that problem. For example, John Bingham said "'The question is simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of oaths enjoined upon them by their Constitution? ... Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced." He also said "Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. . . . And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States...." There are quite a few similar statements.
1 year, 8 months ago on A False Premise Makes for a False Court Ruling
@MikeMaharrey-TenthAmendment Bingham objected to the Civil Rights Act of 1866 because he believed it gave the federal government powers that would go well beyond enforcing the Bill of Rights and would allow the federal government to enforce a broad range of civil rights and common law rights. This went beyond the bounds of Bingham's view of federalism. In his view, the 14th Amendment was needed to allow the federal government to enforce the Bill of Rights. He did not believe the federal government should go well beyond that and get into the business of enforcing all civil rights. Therefore he objected to the Civil Rights Act. He believed the 14th Amendment went far enough by allowing Congress to enforce the Bill of Rights against the states.
Your defense of the Slaughter-House Cases reminds me of the old saying "Fools rush in where angels fear to tread." Certainly an angel wouldn't dare to defend the Slaughter-House Cases. . . .
@BJohnson Bingham argued that the 14th Amendment was not taking any rights from the states because he believed the Privileges and Immunities Clause of Article IV of the Constitution already guaranteed that the states could not infringe the Bill of Rights. Bingham therefore believed that the states were already subject to the Bill of Rights.
The problem, in Bingham's view, was that the Constitution lacked an enforcement mechanism allowing the Bill of Rights to be enforced against the states. The 14th Amendment was intended to supply that enforcement mechanism. The enactment of the 14th Amendment, in Bingham's view, allowed the Bill of Rights to be enforced against the states, vindicating the rights that had always existed, in his view. Bingham therefore believed that the 14th Amendment did not take away any rights from the states. Rather, it provided for the enforcement of rights that already existed. That's why Bingham said the 14th Amendment did not take away any right of the states.
@libertarianbuddhist Everything I wrote in my earlier response is based on the historical record. The founders realized that Congress might pass laws that were not consistent with the Constitution. There was discussion in the Constitutional Convention, in the ratifying conventions, and in public debate about what would happen if Congress exceeded its authority. Over and over, the founders stated that when Congress exceeded its authority, the solution was to be found in the federal courts, which would have the power to void such an act. On the other hand, there is no record contemporaneous with the passage and ratification of the Constitution in which the founder asserted that if Congress were to pass an act exceeding its authority, the states could nullify that act. If the states were thought to have that power, surely it would have been mentioned by someone at some point in the long debate over the Constitution and ratification. But it wasn't.
Quite the opposite. The founders understood that there could be disputes between the federal government and the states over the interpretation of the Constitution. A number of founders said that such disputes would be decided by the Supreme Court, not by the states. For example, in the Constitutional Convention, Charles Pinckney referred to federal judges as "Umpires between the U. States and the individual States." John Rutledge said that the Supreme Court would "judge between the U.S. and particular states." Federalist No. 39 said that "in controversies relating to the boundary between the two jurisdictions [the federal government and the states], the tribunal which is ultimately to decide [i.e. the Supreme Court], is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."
James Madison did not believe the states had the power to nullify federal laws. The Virginia Resolutions avoided asserting a power of nullification. In the Report of 1800, Madison made clear that declarations by the states that an act of Congress is unconstitutional do not actually nullify the act. Rather, said Madison, "The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force." And of course, Madison's statements at the time of the nullification crisis reaffirmed that he was no believer in nullification.
The historical record shows clearly that the founders knew and acknowledged that the power to declare acts of Congress unconstitutional was held by the federal courts, not by the states.
1 year, 8 months ago on What next? Nullify!
@WarrenNorred That simply is not true. In fact, the truth is quite the opposite. Rep. Bingham's original draft of the 14th Amendment did not explicitly restrict the states; rather, it affirmatively granted power to Congress to protect the rights of citizens. Bingham later revised the language of the proposed Amendment to explicitly restrict the states. He added a phrase that had not been in the earlier draft: "No state shall . . ." He did this because he wanted to use the language that the Barron case had said should be used to make the Bill of Rights applicable as a restriction on the states. Thus, the second draft strengthened the applicability of the Bill of Rights to the States. This second draft was the one that was passed by the House. The Senate approved Bingham's language. The Senate amended the proposal to add a clause defining citizenship, but that had no bearing on Bingham's language restricting the states. Rep. Bingham, Sen. Howard, Rep. Stevens, and others made speeches contemporaneously with the passage of the Amendment explaining that one purpose of the Amendment was to make the Bill of Rights applicable against the states. The historical record shows that the 14th Amendment was intended to make the Bill of Rights applicable against the states.
The founders anticipated that there could be disagreements about the meaning of the Constitution and the question of whether federal laws were constitutional. The founders dealt with this issue in the text of the Constitution. The founders understood that determining the meaning of the Constitution and its applicability is a matter of interpretation of law, which is inherently a judicial function. The founders in Article III gave the federal courts the power to determine all cases arising under the Constitution or under the laws of the United States, with the Supreme Court having final appellate jurisdiction. Thus, the founders made the Supreme Court the final authority in determining the meaning of the Constitution. Contemporaneous comments by a number of the founders made clear that the founders intended the federal courts to have the final power to declare federal laws unconstitutional.
The founders also contemplated that there could be legal disputes between the states and the federal government. The founders contemplated that the Supreme Court would be the "umpire" between the states and the federal government, with the final power to determine disputes between the federal government and the states. By giving the Supreme Court the final word in constitutional matters, the founders made clear that the Supreme Court has the power to apply the Supremacy Clause and to determine when it is applicable.
Nullification of federal law by the states was never part of the constitutional model. It wasn't discussed at the Constitutional Convention. Rather, the founders repeatedly stated that the federal judiciary, and ultimately the Supreme Court, would have the final authority in constitutional matters.
The Kentucky Resolutions' suggestion of a right to nullification was not accepted by any other state -- not even by Virginia, where Madison's Virginia Resolutions stopped well short of asserting such a right. All of the other states that responded to the Kentucky Resolutions rejected them. Nullification has never been accepted as a valid doctrine.
We have a constitutional process for determining the constitutionality of federal laws. Ultimately, the Constitution gives the final word in constitutional disputes to the Supreme Court. The Supreme Court has now spoken. The process has run its constitutional course, and it's over. The states cannot nullifythe Supreme Court's recent decision. They do not have the power to do so. When the southern states tried to nullify Brown v. Board of Education so that they could uphold segregation, those states were smacked down -- legally, politically, and in the judgment of history. The states most certainly should not try to go down that road again.
The history of the 14th Amendment shows that one of the purposes of the Amendment was to make the Bill of Rights applicable against the states. The Supreme Court in Barron v. Baltimore had previously declined to apply the Bill of Rights to the states. The main drafters and sponsors of the 14th Amendment (John Bingham, Jacob Howard, Thaddeus Stevens) stated that they wanted to reverse the result of Barron v. Baltimore and to make the states subject to the 14th Amendment.
Accordingly, Bingham specifically drafted the language of the 14th Amendment based on what the Barron case had said would be necessary in order to enforce the Bill of Rights against the states. Howard explained that as things then stood, the guarantees of the bill of rights "simply stand . . . in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them . . . The great object of the first section of [the 14th] amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." So, it is clear from the history that the 14th Amendment was intended to make the Bill of Rights applicable to the states.
The Supreme Court's recent decision applying the First Amendment to the states is exactly in line with the intent of the drafters of the 14th Amendment. The Constitution was applied in harmony with its intended meaning.
@onetenther Civil disobedience and nullification are different and unrelated. Civil disobedience is not a constitutional doctrine; rather, it's a moral doctrine. Civil disobedience is not something a state government does as a matter of constitutional interpretation; rather, it's something an individual does as a matter of conscience. Civil disobedience is not a legal remedy; rather, it's a moral action with no legal basis. Civil disobedience does not purport to nullify the law; rather, a person engaging in civil disobedience submits to the law and takes the full consequences.
Nullification is a constitutional doctrine in which a state purports to nullify a federal law that it views as unconstitutional. It is an act of defiance, as the state contends that the law does not apply to it or its citizens. Nullification is based on legal and constitutional considerations and it is undertaken by a state government. Civil disobedience is a moral doctrine in which an individual disobeys a morally unjust law. It is an act of protest, not defiance. One who engages in civil disobedience does not challenge the validity of the law, but the morality of the law. He or she does not purport to nullify that law, but submits to the law. It is a completely different concept.
Dr. King condemned nullification. It does injustice to his memory to attempt to claim Dr. King's support for nullification.
1 year, 10 months ago on Free at Last! Martin Luther King and Nullification
Dr. King was not writing about nullification of supposedly unconstitutional federal laws by state governments. His letter had nothing whatsoever to do with the Constitution or constitutional law issues. Rather, Dr. King was writing about the moral duty of the individual to engage in civil disobedience to unjust laws. Dr. King did not appeal to the Constitution, but to God's law and to moral law. He said that an individual has a duty to disobey morally unjust laws, and that the individual must have a "willingness to accept the penalty." He advocated submission to authority, not defiance of authority. He was talking about classic civil disobedience. Dr. King did not so much as hint that he believed a state legislature has the power to nullify a federal law based on the state legislature's belief that the federal law is unconstitutional. In fact, he made it quite clear later in this letter that he opposed nullification and interposition. This column is seriously mistaken in suggesting the Dr. King provides any support for nullification. Quite the contrary.
Daniel Webster was no supporter of nullification. Quite the contrary. Webster absolutely rejected the idea that the states may unilaterally nullify federal laws. He explained this at length in the Senate in 1830. Webster explained eloquently and accurately that under the Constitution, the power to review the constitutionality of federal laws lies in the federal courts, not in the states. Thus, he said, there is no constitutional basis for the states to nullify federal law.
1 year, 10 months ago on NDAA Resistance: Only the Beginning
I agree that parts of the NDAA are unconstitutional. The proper remedy is to sue in federal court, which somebody eventually will do. Nullification has no legal basis and will not work. The Virginia measure is not a nullification measure -- it does not purport to invalidate or prevent enforcement of federal law. It is more symbolic than effectual.
2 years ago on NDAA Nullification Passes Virginia Senate by a Veto-Proof 39-1 Vote