I just finished reading a critical but seemingly irrational argument by one of the so-called constitutional experts against the concept of Nullification. I am neither an expert when it comes to constitutional law nor do I profess to be one. That said, when I sit and read analyses made for nullification by constitutional experts such as Professor Tom Woods, and then read other analyses made against nullification by experts such as Ian Millhiser, I am left with my own judgment and common sense, and my own decision-making process to judge validity.
For the sake of the length of this commentary here are the general points made by Professor Tom Woods on Nullification [All Emphasis Mine]:
State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws.
Says Thomas Jefferson, among other distinguished Americans. His draft of the Kentucky Resolutions of 1798 first introduced the word “nullification” into American political life, and follow-up resolutions in 1799 employed Jefferson’s formulation that “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers. In the Virginia Resolutions of 1798, James Madison said the states were “duty bound to resist” when the federal government violated the Constitution.
I strongly urge you to read the well-written summarized points made by Professor Woods here.
Now, let’s proceed to the argument made against the notion of and constitutional validity of nullification by other analysts and legal experts [All Emphasis Mine]:
Despite Paul’s insistence that nullification is proper and constitutional, Article 6 of the Constitution clearly states that Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” That’s why one of our founding fathers, James Madison, argued that nullification would “speedily put an end to the Union itself” by allowing federal laws to be freely ignored by states.
ThinkProgress legal expert Ian Millhiser noted that nullification isn’t just blatantly unconstitutional, it’s “nothing less than a plan to remove the word ‘United’ from the United States of America.”
Again, to read more on points made by Millhiser Click Here.
Professor Woods’ points for nullification include the applicability of the Constitution’s Supremacy Clause used by Millhiser and the like:
Doesn’t Nullification Violate the Constitution’s Supremacy Clause? Thomas Jefferson knew about the Supremacy Clause, it’s safe to assume. The Supremacy Clause applies to constitutional laws, not unconstitutional ones.
I am going to put it this way for those of us outside the elitist legal circle: What happens when the Federal Government – all three branches (Supreme Court included), conspire to violate the Constitution? What happens when the Federal Government nullifies the Constitution? Because when it gets down to it that’s what the Federal Government has been doing: Unconstitutional Wiretapping of All American Citizens by the NSA, The Unconstitutional and Extrajudicial Killing of Americans, The Unconstitutional Invocation of State Secrets Privilege and Related Gag Orders, The Unconstitutional NDAA, The Unconstitutional Search & Seizure by the TSA …The list goes on, and with it the NULLIFICATION of the First Amendment, Fourth Amendment, and several other amendments. Basically, we are talking about suspension and nullification of our nation’s Constitution. Aren’t we?
Ironically, this same circle of experts who have been opposing and attacking the concept and exercise of nullification happen to be those outspoken and crying out against the federal government’s unconstitutionalities in the area of civil liberties. Now, ain’t that a glaring paradox?
In some ways I nullified the Executive Branch’s unconstitutional laws and rules when I blew the whistle on the government’s unconstitutional and criminal activities. I was guided by our rights and obligations under the Constitution. Those rights and obligations fully contradicted the ones demanded and imposed by the Federal Government. My oath of citizenship obligated me to protect and defend the Constitution.
All Americans are bound by the same obligation: to uphold, protect and defend the Constitution against all enemies-foreign and domestic. Thus, when the Federal Government is engaged in acts and operations violating our constitutional laws and rights, when the Federal Government is engaged in unconstitutional acts, when the Federal Government passes and enforces unconstitutional laws-rules-orders, not only the states but all US citizens are duty-bound to resist. For the states, one constitutional way to resist is Nullification.
Think about it: A state can resist and stop NSA’s illegal domestic wiretapping within its territory; a state can put an end to the illegal search and seizure practices by the TSA at its airports; a state can forbid extrajudicial killing and government assassination within its borders … Yes; the states can do all that. They can-constitutionally. Now, who wouldn’t want to live in a state like that? How glaring a paradox is it that those critics of nullification would rather be ‘United’ in an Unconstitutional Federal Government of the United States of America, than ‘United’ with states seeking to preserve constitutional rights?
Sibel Edmonds is the Publisher & Editor of Boiling Frogs Post and the author of the Memoir Classified Woman: The Sibel Edmonds Story. She is the recipient of the 2006 PEN Newman’s Own First Amendment Award for her “commitment to preserving the free flow of information in the United States in a time of growing international isolation and increasing government secrecy” Ms. Edmonds has a MA in Public Policy and International Commerce from George Mason University, a BA in Criminal Justice and Psychology from George Washington University.
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