A Message to the “Nullify Not Amend” Crowd

First, let’s look up the definition of nullify:

According to Merriam-Webster, nullify means:

to make legally null and void 

You like to refer to the Virginia and Kentucky Resolutions of 1798 as evidence of the validity of nullification.    However, your whole case is moot in that said resolutions did not get rid of the Alien and Sedition Acts.  When Thomas Jefferson won the Election of 1800, he allowed them to expire on their own in 1800 and 1801.   (The Alien Enemies Act is still around though.)  Hence, it was a FEDERAL action (or inaction) that did this, not states killing the bills by “nullifying” them.

Another example of “nullification” was the Nullification Crisis.   It involved South Carolina declaring that the federal tariffs of 1828 and 1832 were “unconstitutional” and “null and void”.   This may have “worked” within South Carolina, though it did not by any means get rid of the federal tariffs (i..e. they were still in force in the other states).    However, in 1833, Congress passed the Force Bill, allowing the President to use force against South Carolina if necessary.   Congress also passed a better tariff (perhaps hoping to avoid trouble), but it was clear that they were thinking of using force if necessary to stop the “nullification”.   Furthermore, the Force Bill was suggested by Andrew Jackson, a known states rights advocate.   (So clearly the idea of nullification as a “valid” state right is put into question by Jackson’s opposition to South Carolina’s actions.)   In fact, Jackson considered their actions little better than treason.

Another example you may try and point to is the Underground Railroad and the states who helped with that via “nullification” of the Fugitive Slave Act of 1850.   It should be pointed out that, while certain state actions may have hindered with apprehension of runaway slaves, said “nullification” did not nullify the Fugitive Slave Act.    What ultimately did that was the 13th Amendment to the US Constitution.

Now, you might bring up “nullification” of some federal drug laws, especially those concerning pot.  The fact is, the laws are still on the books and can be enforced by the federal government.   Because many on the Left and many Libertarians in power are actually supportive of this, they haven’t really drawn out the arm of the federal government on this.   However, the actual laws are by no means truly nullified.

Another instance I can point out is the Left and their “sanctuary cities”.  Though they can refuse to cooperate and do everything they can to mess with immigration enforcement, they are by no means nullifying federal immigration law.   It is still being enforced in other places.   Also, I might add, with President Trump about to, hopefully, bring down the boom on these sanctuary cities, their actions are, hopefully, likely to change.

Now, show me an example of where, either by action by one state or a group of states, they were able to truly nullify, as in totally destroy, a federal law by their own actions (not Congress or the Supreme Court deciding to act on their own).   Now, supposing we were to create such a scenario, how do you think we’d do on getting rid of all the bureaucratic regulations, the Every Student Succeeds Act, the Patient Protection and Affordable Care Act, the Johnson Immigration bill (which I cannot recall the name but it creates chain migration and is responsible for the immigration mess we’re in today), etc, and then all the court decisions like Roe vs. Wade, the Oberfeld decision, the school prayer decision, and other disastrous Supreme Court rulings?

Now, as for your claim that Constitutional Amendments shouldn’t be used to nullify anything, let me point out some things to you:

11th Amendment – nullified  Chisholm v. Georgia

13th Amendment –  nullified Dred Scott v. Sandford  and the Fugitive Slave Act of 1850.

21st Amendment – nullified the 18th Amendment  (As a side note, the 21st Amendment used state ratification conventions, and this worked out even though it had never been done before.    Congress did not mess with the delegate picking or anything else and the state ratification conventions did not run away.    Thus, it can be safe to say that we should give the Article V state convention process a chance, don’t you?)

Now, as to how to deal with all the federal regulations, executive orders, federal court decisions, Congressional acts, etc, I would suggest, among other things, a Countermand Amendment allowing a certain amount of states to truly nullify any federal law, court ruling, etc and that it would be nullified in all the states and the federal territories.   However, I cannot see 2/3 of both Houses of Congress, even now, proposing such a thing, so it would have to be obtained by using the Article V state convention process.

Furthermore, unlike Article V, which relies on the state legislators and bypass not just DC but the governors too, those who wish to try the nullify route WILL have to go through the governors.     Let’s take a case in point to see the flaw in the logic of the “nullify not amend” crowd.

Various state Religious Freedom Restoration Acts were proposed.

Here are some examples to show who ended up killing the bill (exception case was Mississippi, where they did not cave.)

Arizona RFRA:

State Legislators:  Passed

Governor: Vetoed

Indiana RFRA:

State Legislators: Passed

Governor:  Vetoed

Arkansas RFRA:

State Legislators: Passed

Governor:  Vetoed

Georgia RFRA:

State Legislators: Passed

Governor:  Vetoed

Mississippi RFRA:

State Legislators: Passed

Governor: Passed

Federal Courts: Struck it down as “unconstitutional”  (Hmm, would they do this to a “nullification” bill too?  If so, what does the “nullify not amend” crowd propose to do?)

Louisiana RFRA:

State Legislators: Did not pass

Governor:  Passed via executive order (which as then undone by the new Democrat governor.   Say, how is the “Nullify Not Amend” going to deal with something like that?)

Now let’s look at HB2 in North Carolina:

State Legislators: Passed

Governor: Passed

Second round:

Governor:  Caved

State Legislators: Stood their ground

New Governor: Opposed (but hasn’t killed it…yet.)

So let’s see how, if these had been nullify bills, how that would have played out:

Foiled by Governor:   4

Foiled by Future Governor:  1

Foiled by Federal Courts:  1

Stood:   1

Nullify Bill Success Rate:   1/7

Now, if these had been COS bills, no governor would have been involved:

Supported by Legislators:  6

Opposed by Legislators:  1

COS Bill Success Rate:  6/7

As another argument, suppose that we DO have some states nullify tyrannical federal acts, etc and are able to get away with it without the military coming in to MAKE us comply?   I believe that the people of those states are STILL paying taxes to support, in other states, the tyrannical federal acts that they “nullified” in their states.   Your citizens are STILL being made to support the federal oppression.  Your nullification is NOT a victory!

Granted, we could take aim at the federal taxing power, but that would require a Constitutional Amendment, something that DC is obviously NOT going to give us and something that nullification can’t either.

 

Also, I might add, what are states going to do if they DO nullify federal education laws, but schools within those states decide to follow the federal law anyway?   Suppose groups that benefit by the corruption of the federal laws decide to follow the federal law anyway and ignore the nullification?  Are the states then going to arrest those groups fro ignoring the nullification?  If not, then you’re not really nullifying it even within the state.

 

A further problem that nullification cannot address is what to do about when it’s inaction by the federal government rather than action that is the problem.     Like a President who picks and chooses which laws to enforce, a government that won’t secure our border.   Sure, we could do it ourselves but that means an extra cost for us.     Also, what about if, say, Congress refuses to investigate criminals like Secretary of State Hillary Clinton, Attorney General Eric Holder,  Lois Lerner from the IRS, etc?    How can you nullify an inaction?

 

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