Comments on: Point: Nullification Is The Civil Disobedience of Federalism

By: Peter

Peter — Sat, 21 Aug 2010 23:49:27 +0000

“the state appointment of Senators, was stricken in 1913 by the Seventeenth Amendment”

I do not think this is correct. The state is the collection of individuals, and the same collection of individuals elects the senator. The senator still represents the state, just the method of appointment was changed to be more open and more reliable.

By: Below The Beltway » Blog Archive » Debating Nullification At The Liberty Papers

Fri, 20 Aug 2010 04:50:37 +0000

[...] Brad’s Post: Nullification Is The Civil Disobedience of Federalism [...]

By: Brian McCandliss

Brian McCandliss — Thu, 19 Aug 2010 03:18:03 +0000

Nullification is neither civil disobediance nor illegal; it is simply the people of a state, “pulling rank–” as their own sovereign rulers– against the federal government, which is simply their hired managers.

To say this is illegal, would be like saying that Bill Gates was breaking the law by overruling a manager at Microsoft.

By: Point: Nullification Is The Civil Disobedience of Federalism « Secession and Nullification — News & Information

Wed, 18 Aug 2010 12:42:27 +0000

[...] Civil Disobedience of Federalism Posted on August 18, 2010 by Bill Miller This article by Brad Warbiany on TheLibertyPapers.org. Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy [...]

By: Julie

Julie — Tue, 17 Aug 2010 19:06:40 +0000

Brad–I understand your reasoning and as you stated, we’ll see tomorrow how your opponent responds.
One more point. In an ideal world, the middle ground would be dual federalism–mutual respect of delegated powers between the states and the feds.
But at this point in time, the feds have so violated the states’ sovereignty and the Supreme Court–a branch of the federal gov’t., has failed to protect the states for so long that nullification is being resurrected as a delicious and legitimate recourse for the states.

By: Brad Warbiany

Brad Warbiany — Tue, 17 Aug 2010 18:31:22 +0000

Julie,

The problem is that if the states are the arbiters of constitutionality, the supremacy clause is dead letter, as the states can pretty well deny following any law that even has questionable authority under “enumerated powers”. If the Supreme Court is the arbiter of constitutionality, the 10th Amendment dies in an environment like today’s SCOTUS, which takes an expansive view of constitutional authority. There may be middle ground in there, but I’m just not seeing it.

I think your wider point, that the founders would never have seen the current expansive government as legitimate, is true. Nullification battles were fought by those founders in the post-Constitution Republic (Jefferson/Madison “nullifying” the Alien and Sedition Acts).

I could have structured my Point along the lines you suggest. There are some very interesting legal and historical questions there. However, Doug (a lawyer by trade) would likely have eviscerated me in his Counterpoint. Whether one accepts the settled law or not, settled law has largely made nullification moot from a legal perspective (though not from a civil disobedience perspective). He still may beat my above argument (we’ll find out tomorrow morning), but fighting for legitimacy on the moral — rather than legal — grounds seemed a better tactic.

By: Julie

Julie — Tue, 17 Aug 2010 17:32:21 +0000

Brad–Maybe your fundamental question “Is Nullification of federal laws legal?” is the wrong question. Maybe the question should be “What did our founders have in mind when they added the 10th Amendment to the Bill of Rights? And what recourse did the sovereign states have when the federal gov’t. usurped the powers of the states or the people?” The states, under the 10th Amendment, have just as much authority to protect their powers as the federal gov’t has to exert “supremacy” when they stay within their enumerated authority. So I take issue with your assertion that the Supreme Court is the sole arbiter of the constitutionality of federal laws.
Nullification is within a states power to refuse to abide by “unlawful” federal legislation. Particularly today when our constitution has been distorted beyond recognition by activist jurists and power-drunk Congresses.

By: Brad Warbiany

Brad Warbiany — Tue, 17 Aug 2010 15:20:27 +0000

Jack, you are correct. Yet I find myself feeling like the INS guy from the illegal immigrant episode of the Simpsons, talking to Apu: “Just say slavery.”

Slavery was being fought since the time the Constitution was written, and animated so many of the political battles of the 1800′s that it was a major cause of the secession. There’s a lot to be learned by digging deeper, but it was beyond the scope of writing here.

By: Jack Stevison

Jack Stevison — Tue, 17 Aug 2010 14:38:44 +0000

one sticking point about your argument.

” the South’s secession was for morally unconscionable reasons — the continuance of the despicable practice of slavery.”

not fully true.

From the book, “Was Jefferson Davis Right?”

“If the South had free trade, then the Northern industrialists would be forced to compete against cheaper goods from Europe. If the North had protective tariffs, then the South would be forced to pay more for its goods and face the prospect of a trade war with its European trading partners.”?

It was also a zero-sum dilemma that caused the South to secede.