Nullification: The Lost Balance of Power

The supremacy clause is moot on the subject of how we determine whether a law is Constitutional. Laws that aren't constitutional are obviously null and void. Nothing in the Constitution says the Supreme Court was to be the sole arbiter of which laws complied with the Constitution. There is also nothing in the Constitution that prevents a state from seceding. Even the servile followers of the Lincoln cult admit that.

Let's start with something simple. The Constitution delegates to the Federal Government the power to make treaties.

All states are obliged to comply with those treaties. Therefore a state CANNOT secede and thus ignore its obligation to that compliance.

The Constitution empowers the Federal Government to tax. The states are thus obligated to pay those taxes. A state, or its citizens, cannot simply stop paying taxes.

The Supremacy Clause of the Constitution explicitly prevents the States from making laws that conflict with federal law or the Constitution. There is no 10th amendment workaround of the Supremacy Clause.

Since no state could secede without violating the Supremacy Clause, no state can legally/constitutionally secede.

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Capitalism wherever possible; Socialism wherever necessary.

What's the point of the Constitution if nothing in it is binding or enforceable?

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Capitalism wherever possible; Socialism wherever necessary.

Because it's the law of the land. Why should local police be forced to enforce state laws? The final arbiter of what of the Constitution and the laws made in pursuance thereof is the Supreme Court of the United States. The final arbiter of state Constitutional law is the State supreme court. The final arbiter of county or local statutes is the local government.

In what way were fugitive slave laws unconstitutional? Sandford v. Scott clearly established slaves as property, and the states had no right to deny individuals in other states access to their property.

Oh bejeebers...just shut up. That's as obscene as it is offensive. People who believe in a strong federal government don't by default believe in gassing the jews. If you don't see the difference between the democratically elected representative government in the United States, with its 200 year history, and Nazi Germany then there's really no point in having a discussion. Let's play out that game a bit further, shall we, with a domestic example: You know who liked states rights? People who wanted to keep black people in cages and steal their children.

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There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs

Things I've learned on this board (changing daily!)
1. Black people are "incapable of leading" (Rabbi)
2. South Africa was a "prosperous" and "civilized" country under Apartheid. (Uncensored)
3. Willowtree is going "to vote for Romney because he's white."
4. The 1983 bombing of the Marine Barracks in Beirut was not terrorism. (Kaz)

ORLY? "The judicial Power of the United States, shall be vested in one supreme Court,"

The concept of judicial review precedes Marbury.

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There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs

Things I've learned on this board (changing daily!)
1. Black people are "incapable of leading" (Rabbi)
2. South Africa was a "prosperous" and "civilized" country under Apartheid. (Uncensored)
3. Willowtree is going "to vote for Romney because he's white."
4. The 1983 bombing of the Marine Barracks in Beirut was not terrorism. (Kaz)

So, here's a question for the pro-nullification posters here (that I have little optimism for getting answered directly)

Could a state decide that the 2nd Amendment shouldn't apply to its citizens, and thus proceed to pass whatever gun laws it chose,

including, for example, a comprehensive ban on individual ownership of personal firearms?

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Capitalism wherever possible; Socialism wherever necessary.

I was waiting for the supremacy clause argument.

The supremacy clause found in Article VI reads: "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, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding."

But a nullifying state does not deny that the supremacy clause. In fact, it defends it. States are disputing whether the law in question is "pursuant to the Constitution" as the clause states in the first place. If an unconstitutional law is passed, the states have the duty to nullify it because it is not "made in Pursuance" of the constitution.

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It is only the law of the land if it is made in pursuance of the Constitution. If the federal government is attempting to use a power that should be delegated to the states, the state has the duty to follow the constitution and nullify the law for the sake of protecting its citizens. What kind of system would limit a central government and then give the central government the sole authority of interpreting those limits? It is laughable.

Sandford v. Scott was unconstitutional. You seem to be assuming the Supreme Court is infallible and always follows the Constitution. That is incorrect. That is the entire point of nullification, to check the Supreme Court. If all 3 federal branches break the Constitution (which they frequently do) the states who entered into the agreement in the first place have the right to check the power and stop unjust expansion through nullification. Slaves were not property, and the north argued that they were denied due process of law and equal protection. Furthermore, the slaves were denied jury trial, clearly in violation of the constitution. The commisioners also received a ten dollar payment if they returned the accused to slavery, but only 5 if they set the slave free. Such an arrangement rendered the whole act unconstitutional regardless of the view of slaves as property. It violated the due process clause of the 5th amendment. So yes, the laws were unconstitutional, and the south tried to block nullification through the federal government to keep blacks enslaved.

I never said they did, so of course your strawman sounds ridiculous. I was simply pointing out that a strong central government is key to consolidating power and violating the rights of the citizen population. Hitler disliked the federal system because he felt they blocked his access to central authority.

Strawman through and through. And you are incorrect about your insinuation that it was the southern states in favor of nullification. In fact, it was the north. It was the southern states and the federal government that ruled nullification of the Fugitive slave act to be inappropriate. The southern states were upset with the nullification of the north. In fact, nullification was a stronger tradition in the north than in the south, and there were far more instances of it in the north.

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Could they? Of course, and so could the federal government. Could the supreme court decide that the 2nd amendment shouldn't apply? Yes, it could. Neither the states or the federal government are infallible and both have the potential to violate the Constitution. But the states have much less incentive to do so because the legislature of a state more closely represents the people, and people can more easily move from state to state than from country to country. If the 2nd amendment were declared null in single state, the population of the state would likely decrease, depriving the state of revenue and creating a huge financial incentive not to ban the 2nd amendment (which is completely out of line with the principle of nullification anyway). If the federal government does the same thing, people can only move to other countries, which is highly unlikely. They don't have to worry about losing a tax base as the states do.

If the states can make the argument through nullification, so can the Supreme Court. But if the supreme court makes this argument, the states can nullify it, adding further protection against central government attempts to violate liberty.

Do you think it is more likely that all 50 states nullify a constitutional provision or that the Supreme Court allows for a violation of a constitutional provision? I think you need only look at history for the answer to that.

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I'm happy to see ShackledNation has exposed his agenda - claiming that the south didn't favor nullification and (rather obviously) Calhoun's comments on the Nullification controversy....

And then his explanation of why a STATE could over-rule a 2nd amendment claim...

Precious.

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There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs

Things I've learned on this board (changing daily!)
1. Black people are "incapable of leading" (Rabbi)
2. South Africa was a "prosperous" and "civilized" country under Apartheid. (Uncensored)
3. Willowtree is going "to vote for Romney because he's white."
4. The 1983 bombing of the Marine Barracks in Beirut was not terrorism. (Kaz)

It would be cool to live in a state that does not recognize corporations as having the same rights as individuals.
Don't you think so?

Complete and utter dishonest mischaracterization of my post. I clearly said a state could not over-rule the 2nd amendment legally, but that states, like the federal government, potentially could unconstitutionally do so. The federal government constantly breaks the constitution unlawfully. The argument was that the states would be less likely to do so, which you totally ignored. Do you think government is infallible? I hope not. All arguments against nullification result in such pathetic and laughable behavior as you have displayed. You shut out debate because you don't want to face reality.

Not to mention your use of the strawman fallacy. I said nullification was a tradition of the north more than the south, not that the south did not have a single supporter of nullification. Demagoguery at its worst.

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The States never had such authority, nor will or should they ever.

In Cooper v. Aaron (1958), the Court ruled that ‘nullification’ is un-Constitutional:

See also McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824)

The courts never authorized ‘nullification,’ the Supremacy Clause has always been interpreted as just that: Federal laws and decisions made by the Supreme Court are the laws of the land, states were never authorized to ignore or reject Federal law or rulings by the Court.

The issue of ‘nullification’ is therefore moot.

See above, you both clearly have no idea what you’re talking about.

You need to realize that whatever ‘understanding’ you might have of the Constitution or intent of the Framers, it is in essence a fantasy – something you’ve made up, a contrivance. Without case law in support of your positions, your arguments have no merit.

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The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal Principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Justice Robert H. Jackson, West Virginia Board of Education vs. Barnette, 1943

The states do have such authority, and should. The fact that the courts ruled nullification unconstitutional is moot. The courts also ruled at one time that a black man was property. Many rulings have been overturned, including those. The internment of the Japanese, also a ruling, has not been overturned. Do you think it should be legal for the federal government to invade the people of a state, judge a certain group as a threat, and put them in compounds? The courts allow it. Korematsu v. United States has never been overturned, so if you feel so strongly about the courts your answer must be yes. Point is, the courts are not infallible. Nullification is something the courts have ruled wrongly on that has never been corrected, just as Japanese Internment was never corrected. According to the Supreme Court, exclusion orders are constitutional.

Marshall was wrong. The federal government has equal power to destroy the rights of the states granted by the Constitution. History has proven that. Unless you believe for some reason the federal government is less likely to break the Constitution, that entire argument is completely out of line with the reality of a federal system. The entire federal system breaks down without the ability of the states to check the central power. If there is a dispute between the states and the federal government, and the federal government has the sole authority to settle such disputes, who do you think will win? The decks are stacked.

Dead wrong. Jefferson was a strong supporter of nullification. Considering he participated in writing the Constitution, I think he knew what the supremacy clause meant.

Thomas Jefferson wrote in 1799, “lest [our] silence be construed into an acquiescence…the states…being sovereign and independent, have the unquestionable right to judge of [the federal government’s] infraction; and “That a nullification, by those sovereignties [states] of all unauthorized acts done under color of that instrument [the Constituion] is the rightful remedy.
What Would Jefferson Do? Nullify Now! – Tenth Amendment Center

Jefferson’s theory of nullification, outlined in his 1798 Kentucky Resolutions, is fairly simple: the US Constitution was a compact among the states where certain, limited powers were delegated to the federal government; any powers assumed by the federal government that were not expressly delegated to it, automatically become void–the federal courts be damned.

The argument that federal courts would never uphold nullification of federal law was Jefferson's point exactly.Thomas Jefferson emphasized repeatedly that the federal courts are a branch of the federal government, so if you have a dispute between the states and the federal government, and then let only the federal government decide it…it is an absurd notion. His argument was that the states are the constituent parts of the union, so therefore they have to make their interpretation of the constitution count for something.

Only federal laws made “in pursuance” of the Constitution may receive supremacy. The supremacy clause only holds in situations when federal law is constitutional. The 10th Amendment gives further credence to this distinction: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Nullifying unconstitutional law was never prohibited.

Jefferson is not a framer? His intent counts for nothing then? Have you heard of the anti-federalists? There is much more to this issue than you are making of it, and it is far from a moot debate. I am sorry, but the fantasy world is not my place of residence. Without nullification, the states have no way to check unconstitutional actions of the federal government. Without such a power, the states are meaningless tokens.

Let us look back to history around the time of the establishment of the United States. The 1798 Kentucky Resolution states “that the several states composing the United States of America are not united on the principle of unlimited submission to their general government . . . and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 1799 Virginia Resolution adds “that it views the powers of the federal government as resulting from the compact to which the states are parties . . . and that, in case of . . . dangerous exercise of other powers, not granted by the said compact, the states . . have the right . . . to interpose . . for maintaining . . . the authorities, rights and liberties, appertaining to them.” The federal government resulted from a compact of the member states. They lend the federal government its powers and are the ultimate judge of the use of those powers. To give the federal government universal authority to judge the legality of its own laws is illogical and dangerous.

Remember, people used to say "The United States of America are." The states are called states for a reason. They are not provinces, and they have legitimate power to check the federal government.

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Nullification is another approach that the haters of the United States of America love.

And make no mistake about it, many of the players here who claim to be YSA patriots would prefer to livebe living in the 19th century CSA.