PART 1 of 2
Timothy N. Baldwin, JD.
May 26, 2014
I am convinced that most advocates of state nullification who oppose Article V (hereinafter referred to as “nullification purists”) are effectively revolutionists, not constitutionalists. An article that demonstrates my point is entitled Tool for Liberty: Nullifying for the Sake of Nullification, which was written by Tate Fegley and posted by the Tenth Amendment Center.
In this article I will show how:
nullification purists do not promote real nullification but give only
lip service to the idea;
(2)nullification purists invoke Natural Law, not Constitutional law, as their authority, thus putting them into the category of revolutionists, not constitutionalists; and
(3) if States have reached the point of needing Natural Law to defend themselves against the federal government, then nullification is not the remedy they should be advocating.
1. Nullification Purists Do Not Promote Real Nullification But Give Only Lip Service to the Idea
Real Constitutionalists Do Not Have to Accept Nullification
Fegley’s first sentence in this article immediately demonstrates the narrow-minded (and really, the ignorant) approach that nullification purists hold. Fegley says,
We should be skeptical of anyone who claims to love liberty and yet does not support state and local nullification of unconstitutional federal laws.
In truth, the supposed authors of nullification, Thomas Jefferson and James Madison (not to mention a host of Originalist constitutional scholars) denied that States have the power to unilaterally nullify a federal law, and I have written about this before. Right away, Fegley’s statement seems foolish and discredits his position.
Real Nullification Is Nothing Without Force
That one should be skeptical about people who deny nullification depends on what “state and local nullification” means.If “nullification” means, a State not helping the federal government enforce its laws within that State, then yes, nullification is a constitutional right of the States as opined by the United States Supreme Court in New York v. US and Printz v. US. People who deny this deny the essential ingredient of Federalism, but this is hardly a point of contention among the legal and political community, and it is not what nullification purists mean by “nullification.”
According to the Tenth Amendment Center,“nullification” means “any act or set of acts which renders a law null, void or just unenforceable.” But “rendering a law” null and void is an incomplete definition of law. Real nullification, to be enforceable, must be a law, and a law without force is no law at all. A State can nullify the entire federal code if it pleases—and why stop there? Why not nullify bureaucracies, offices, congressional decisions, etc.? Whatever, but what good does nullification do unless the State enforces it?Notice, the Tenth Amendment Center’s definition of “nullification” does not include an enforcement component, which means the Tenth Amendment Center does not advance nullification as a law, but nullification as an idea.
Looking deeper into the matter, what is the effect of a real nullification effort (i.e. the use of force) and what would be caused if States conflicted in which portions of federal law they chose to forcibly resist? Presumably, the liberal states would resist laws that protect conservative ideas, and conservative states would resist laws that protect liberal ideas.
I do not have the space in this article to demonstrate the result of this, but common sense should provide the answer: the effect of such widespread contentions results in the dissolution of the union. A house divided against itself cannot stand, as the Bible says. Nullification purists do not view nullification as reaching this point, however, and seem to ignore it altogether; neither have they articulated a plan for the union if the States, in fact, entered that realm of nullification.
Regardless, the recent “nullification movement” shows that States really do not intend to nullify anything because not one State has enforced nullification. Yes, they give lip service to nullification by passing a “law”, but when the federal government enforces the law nullified, no State uses force to stop that enforcement; and even if a State did use force, the matter is quickly brought to and decided in federal court, thereby stopping the State from using further force.
Does nullification, as defined by the Tenth Amendment Center, have political and social effect? Of course; because it reveals the current will of the people, which is always important; but it is not law because law requires force. Constitutional scholar, Ryan Card, observed this when speaking of the States nullifying Obamacare. He said,
[D]espite being void of constitutional authority to nullify federal legislation,…nullification can be employed by states as a powerful political tool in opposing federal legislation. As the majority of states move to nullify federal health care reform, state legislatures signal to the federal government that implementing such reform will be a difficult task as states will be sluggish to give effect to national health care reform within their borders. Widespread state opposition to national health care reform also places intense political pressure in an election year on those congressional leaders who voted for such reform. (Can States "Just Say No" to Federal Health Care Reform? The Constitutional and Political Implications of State Attempts to Nullify Federal Law, 2010 B.Y.U.L. Rev. 1795, 1798.)
The question becomes, if nullification purists really believe nullification is the answer to the nation’s political situation, why do they not propose any plan to actually enforce nullification? Sure, they are happy to say what the “Supreme Law of the Land” is or is not, but they will do nothing to enforce the law.That they ignore the essential element of what makes law the law shows that they do not truly believe in nullification as a practical remedy to “restore the Constitution.”
But again, if the States were to actually “appeal to the sword” (see Madison, Federalist Paper 39, “[the federal judiciary] is clearly essential to prevent an appeal to the sword and a dissolution of the compact”), it would result in the dissolution of the union anyway (requiring a constitutional convention eventually). Hamilton said this well in Federalist Paper 15 when he addressed the issue of whether federal law and its enforcement should depend on State approval:
It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities, that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.
Simply put, when States begin using force to resist the federal government, government ceases to exist and the union is dissolved. Thus, a real nullification movement is, in reality, a revolution movement.
Montana Firearms Freedom Act Example
Interestingly, Fegley does not highlight or give any examples of the real definition of nullification; that is, a State passing AND enforcing nullification. Rather, Fegley merely points to the typical passive version of “nullification,” using Montana’s Firearms Freedom Act (MFFA) as this example. Let’s look at MFFA to see how it does not fit within the definition of nullification, thus showing that even nullification purists do not advance a real nullification movement.
MFFA (which I helped defend in the District Court and United States Supreme Court, representing 30 Montana State Legislators), is not nullification. MFFA is a law that strictly defines what intrastate commerce is relative to the making, selling and buying of firearms within Montana and to define when that commercial activity is subject to Montana’s exclusive police power. MFFA worked within the current confines of federal law and tried to (re)define the intrastate commerce in such a way that would exempt MFFA from federal jurisprudence relative to Congress’ Commerce Power. Thus, MFFA never nullified a federal law.
In addition to not having a nullifying element to the law, MFFA did not have an enforcement element. Too, Montana did nothing to enforce the law contrary to any federal law. It did what all States do when they nullify a federal law: go to court and hope the judiciary redefines the Commerce Power.
After MFFA became law and suit was filed in federal court to uphold MFFA, Montanans who dealt with firearms acknowledged that federal government can and will enforce federal law regardless of MFFA. Consequently, they complied with federal law, not MFFA. Since MFFA has been declared unconstitutional by the federal District Court and Ninth Circuit Court of Appeals—with the United States Supreme Court denying petition for certiorari review—MFFA is a dead letter. Even the most active nullification proponents in Montana are not demanding that the Governor enforce MFFA (which is still Montana law) in spite of the federal courts’ rulings. Therefore, MFFA lacked the moral compulsion necessary for law to work.
Pray tell, how is this kind of nullification changing federal law or “restoring the Constitution”? How can such a forceless tool overcome the monstrosity of long-standing federal power, practice, and precedent? Yet nullification purists insist that nullification is our only and best tool. Something is very wrong with this approach to “restoring liberty.”
2. Nullification Purists Invoke Natural Law, not Constitutional Law, as Their Authority
Nullification purists claim that all government actions must be taken under the authority of the Constitution and any action taken outside of the Constitution’s authority is per se null and void. In striking contradiction, however, they claim that as long as a State believes a federal law is unconstitutional, they have a NATURAL RIGHT to nullify (and presumably, forcibly resist) that federal law, regardless of whether nullification is constitutional.
Fegley demonstrates this saying,
the burden of proof should be on those who reject nullification to not simply present a rehashed argument…about why [nullification] isn’t constitutional, but to show why, if one cares about liberty, she should be against nullification.
Wait! So, States should not be concerned about the constitutionality of nullification, as long as they are getting the results they want (as if the loosely defined word “liberty” is the standard of constitutional law—it is not!). Fegley continues his disregard for constitutional law, stating,
Perhaps they would retort that their goal isn’t to show that nullification isn’t good for liberty, but simply that it’s not constitutional. If this is the case, then they disagree with Lord Acton when he said, “Liberty is not a means to a higher political end. It is the highest political end.”
Yes, protecting liberty is the purpose of government’s institution. However, to conclude that liberty does not exist in the current form of government only confirms that the constitutional system needs altering or abolishing, as the Declaration of Independence plainly teaches. Liberty, as defined by whomever, is not a rule of law; the Constitution is. Until the States or people dissolve their political connection to the Constitution, they are bound to follow it.
In addition, Fegley states that as long as a State believes it is accomplishing “liberty”, then the Constitution need not stand in its way. Really!? Let’s see—what would nullification purists say about federal officials who proclaimed this as the basis for their authority? For part two click below.
1. Compare nullification, however, to “interposition” where the States simply do not help or assist the federal government in the execution of federal law. States are doing this now and more are introducing legislation to this effect. But this “interposition” approach does not contest the power of the federal government to pass and enforce its own laws directly on the people. In other words, interposition does not attempt to act outside the scope of constitutional limits. This has been upheld by the Supreme Court as a valid constitutional authority of the States.
© 2014 Timothy N. Baldwin, JD - All Rights Reserved.
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com