Is it unconstitutional for states to nullify federal laws?

[MR2Fast2Catch]

I was having a talk with a Conservative friend, and I said that states need to be nullifying more federal laws that are unconstitutional. He said he thought there was a supreme court case that said it was unconstitutional for states to nullify federal laws so we cannot do that. Is this true? It may be, but that doesn't mean we shouldn't be nullifying unconstitional laws, IMO.

[Austrian Econ Disciple]

I was having a talk with a Conservative friend, and I said that states need to be nullifying more federal laws that are unconstitutional. He said he thought there was a supreme court case that said it was unconstitutional for states to nullify federal laws so we cannot do that. Is this true? It may be, but that doesn't mean we shouldn't be nullifying unconstitional laws, IMO.

Since when can only one side interpret contractual law? No, both parties can in good faith and especially when breaking the contract, nullify, or fail to abide by rules and laws set forth that violate the initial contract. The Constitution is nothing more than the contract that instituted the Federal Government. I think it would be folly and silly to say that the institution that was created has sole arbitration over everything. Then again, not that many people understand that the Constitution itself is a contract.

This is why Secession is legal. Right now the contract between the states, and the Constitution is violated. Violated contracts can be annulled, and you can remove yourself from contracts that are no longer considered legal (Violated).

[Matt Collins]

Jefferson on nullification:
http://blog.mises.org/archives/003811.asp


other information:
http://www.tenthamendmentcenter.com/...nullification/

http://www.lewrockwell.com/spl/nulli...al-pot-ca.html
http://www.tenthamendmentcenter.com/...n-for-liberty/

http://www.lewrockwell.com/wilson/wilson30.html
http://www.lewrockwell.com/orig10/hawes1.html
http://www.lewrockwell.com/woods/woods16.html
http://www.lewrockwell.com/dilorenzo/dilorenzo48.html

http://www.mises.org/multimedia/mp3/Woods/Woods1.mp3

If you search around the audio on Mises.org and the http://freedomwatchonfox.com/category/podcast/ site you'll eventually find an interview or lecture about nullification and interposition. I don't remember where it is specifically and can't find it at the moment.

[Matt Collins]

If you search around the audio on Mises.org and the http://freedomwatchonfox.com/category/podcast/ site you'll eventually find an interview or lecture about nullification and interposition. I don't remember where it is specifically and can't find it at the moment.

Found it:
http://www.lewrockwell.com/podcast/?...erposition.mp3

[fisharmor]

I was having a talk with a Conservative friend, and I said that states need to be nullifying more federal laws that are unconstitutional. He said he thought there was a supreme court case that said it was unconstitutional for states to nullify federal laws so we cannot do that. Is this true? It may be, but that doesn't mean we shouldn't be nullifying unconstitional laws, IMO.

Whether something is "constitutional" depends purely on the whims of the powers that be and the media.

Words like "among" and "infringed" and "reserved" have objectively real dictionary definitions, and the supreme court be damned.

Then on the other hand, they have the tortured and twisted meanings that the state indoctrinates into our youth and beams into our living rooms and pronounces from the bench.

The fact that the words encoded in the highest law of our land have operational meanings different from and at odds with their dictionary definitions is proof that the states need to be nullifying laws they deem to be unconstitutional.

If the law does not mean the same thing to you as it does to me, then we do not live under the rule of law. If we do not live under the rule of law, then we have no moral imperative to follow it.

[torchbearer]

if the state enters the union voluntarily, it can leave it voluntarily.
if 49 states vote to tax the 50th state to death- the 50th state can nulify the federal prison the other 49 states voted on.
that is why it is important to have state sovereignty and state ran armies.

[MelissaWV]

Even though state law can contradict Federal law, it's always important to keep in mind who has the biggest hammer to drop. It's not that you shouldn't fight back, it's that you need to be consistent, and aware of what the consequences may be. If you take Federal money for something, it can dry up mighty fast if you're "opposing" the big bad Government.

Want your drinking age to be 18? We'll revoke some of your highway/road project money.

[Pericles]

When whatever is constitutional is whatever 5 justices on the SCOTUS say is constitutional, we are no longer a nation of laws.

[LDA]

If states actually used nullification, we might not be in the mess we are today. Of course, the federal government has found ways around it. Take the drinking age, for instance. There's no federal law that says the drinking age has to be 21. However, the government came in and said "if you don't change the drinking age to 21, we'll take away your highway funding." So, we send all this money to the federal government, then they offer to give a small fraction of it back to the states *if* we bend to their will.

[erowe1]

I don't know if there ever was a specific SCOTUS ruling just about nullification. But there have been tons of rulings that implicitly deny states' rights to nullification by virtue of their insistence that the court can dictate to the states whether or not something is constitutional in the opinion of the court and, therefore, the states must either do or not do something.

But why does that matter? Are we really supposed to let the Supreme Court have some special right to be the final arbiter on the Constitution? Of course it claims that it does for itself. But it would be illogical to say that the Supreme Court gets the final say on anything because the Supreme Court says so. And wouldn't it be absurd to accept that disputes between any party (whether a state or anyone else) and the federal government are to be adjudicated by an agent of that same government, as though a party in any dispute can also be an impartial mediator in that same dispute?

[fisharmor]

You know, I went and re-read article III just now to find out if there is even a constitutional power for SCOTUS to rule on the constitution.

There is, but it would have been OK, if not for the 17th amendment. If senators were still the agents of the individual state legislatures, their approval for SCOTUS justices would follow a different set of considerations.

[Brooklyn Red Leg]

Want your drinking age to be 18? We'll revoke some of your highway/road project money.

Sheriff Mack is right. The Governors of the various States need to grow a collective backbone and simply withhold sending in the money they collect to the general pool of the Transportation Dept. Wanna make Washington D.C. cry 'Uncle'? Stop feeding them!

[erowe1]

You know, I went and re-read article III just now to find out if there is even a constitutional power for SCOTUS to rule on the constitution.

There is, but it would have been OK, if not for the 17th amendment. If senators were still the agents of the individual state legislatures, their approval for SCOTUS justices would follow a different set of considerations.

Are you talking about where it says:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

What do you mean by your phrase "rule on the constitution"? And how does that relate to what Article III says?

Also, note that later in that same section it says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

[Baptist]

I was having a talk with a Conservative friend, and I said that states need to be nullifying more federal laws that are unconstitutional. He said he thought there was a supreme court case that said it was unconstitutional for states to nullify federal laws so we cannot do that. Is this true? It may be, but that doesn't mean we shouldn't be nullifying unconstitional laws, IMO.

Dude... You HAVE TO go to Mises.org and DL every Tom Woods mp3 that contains the words "1798" or "state's rights." Do it. Trust me, this will arm you with plenty of arguments for state's rights.
http://mises.org/media.aspx?action=author&ID=424

[erowe1]

Sheriff Mack is right. The Governors of the various States need to grow a collective backbone and simply withhold sending in the money they collect to the general pool of the Transportation Dept. Wanna make Washington D.C. cry 'Uncle'? Stop feeding them!

That's exactly right. That's the thing about nullification. It doesn't mean anything unless it includes nullifying their collection of taxes associated with whatever the thing is. For example, what good is it for a state to opt out of allowing insurance in the federal exchange under the new health care bill to pay for abortions in that state if the people of that state still have to pay the same amount into it to pay for abortions in every other state?

I think states could (if they were willing) take nullification even further and nullify the federal income tax itself. And I'm not talking about any theories about its inherent unconstitutionality. I'm just talking about its use in funding all the other unconstitutional stuff the federal government does. Essentially, what states should do is just put the IRS on notice that it won't be getting any money from them, and if their agents try to collect from any citizens of that state they will be arrested and prosecuted for extortion, armed robbery, or whatever other charges may apply.

[MelissaWV]

That's exactly right. That's the thing about nullification. It doesn't mean anything unless it includes nullifying their collection of taxes associated with whatever the thing is. For example, what good is it for a state to opt out of allowing insurance in the federal exchange under the new health care bill to pay for abortions in that state if the people of that state still have to pay the same amount into it to pay for abortions in every other state?

I think states could (if they were willing) take nullification even further and nullify the federal income tax itself. And I'm not talking about any theories about its inherent unconstitutionality. I'm just talking about its use in funding all the other unconstitutional stuff the federal government does. Essentially, what states should do is just put the IRS on notice that it won't be getting any money from them, and if their agents try to collect from any citizens of that state they will be arrested and prosecuted for extortion, armed robbery, or whatever other charges may apply.

Precisely what would need to happen, though it would take some time to organize, and cause some difficulties with people that work across state lines, etc.. The easiest thing to do would be to target the income tax in specific, and not bother with Social Security or Medicare contributions at first. People would panic if they stopped receiving those checks, and technically the Government would be obligated to keep sending them... but it might take time to sort out. In the meantime, you have a Boomer/Elderly rebellion

The trouble is that the state would also need to opt out of any funding the state might receive. You saw how well that went for people during the "stimulus" mess. The states are in deep $#@!... and I'm fairly sure that's just where the Federal Government wants them.

[fisharmor]

What do you mean by your phrase "rule on the constitution"? And how does that relate to what Article III says?

If SCOTUS is the judicial power, and judicial power extends to all cases in Law and Equity, arising under this Constitution and also to the Laws of the United States (the constitution is the law of the United States) then they have the authority to rule on what is and is not constitutional.

I'm ok with that. What I am not ok with is the fact that the 17th amendment destroyed a large check on federal power in that the state legislatures, via their erstwhile representatives in the senate, decided who was on SCOTUS. If the 17th amendment hadn't been ratified, then the judicial review of what is and is not constitutional would be more in control of the individual states, who would have an interest in maintaining their grip on their own local power.

If the 17th were repealed, you would see the exact reverse of what you see today: large, populous states might remain blue, but they would only be blue within their own borders. New York's senators would have an interest in keeping New York's money inside of New York. There would be no populist attempts at plundering the entire nation.

It doesn't make sense to me to blame SCOTUS for doing their job. It makes more sense to me to blame the amendment that fundamentally broke the system.

Edit: I also agree that congress has the power to limit SCOTUS' purview. I don't think that's as wise as repealing the 17th, though. I think that is a decent plan B... but it's also not undoing any of the damage the 17th did. It's just a band aid.

[erowe1]

If SCOTUS is the judicial power, and judicial power extends to all cases in Law and Equity, arising under this Constitution and also to the Laws of the United States (the constitution is the law of the United States) then they have the authority to rule on what is and is not constitutional.

I'm ok with that.

So if the Supreme Court says that something is constitutional when it isn't or isn't constitutional when it is, you're ok with everybody saying, "Well, I guess that settles it."?

In the Federalist Papers Hamilton argued that it wouldn't be possible for SCOTUS to legislate from the bench because Congress would just impeach the judges who did that. But nowadays that's unthinkable to most people who have that deferntial attitude toward judicial review.

[fisharmor]

So if the Supreme Court says that something is constitutional when it isn't or isn't constitutional when it is, you're ok with everybody saying, "Well, I guess that settles it."?

In the Federalist Papers Hamilton argued that it wouldn't be possible for SCOTUS to legislate from the bench because Congress would just impeach the judges who did that. But nowadays that's unthinkable to most people who have that deferntial attitude toward judicial review.

Right... now who is responsible for all impeachments?

THE SENATE.

It is not SCOTUS which is broken. It is THE SENATE.

[erowe1]

Right... now who is responsible for all impeachments?

THE SENATE.

It is not SCOTUS which is broken. It is THE SENATE.

I'm all for repealing the 17th. But I don't think that the problem we have with judicial review is just because the 100 in the Senate choose to allow it while their constituents (whether those be the people or the states) are against it. I think the entire population has this thinking about the Supreme Court that anytime it rules on the constitutionality of anything, that's that, and for any state to nullify it would make us lawless anarchists. As long as this attitude prevails, then practical questions about how to fight it are academic.

But, whereas repealing the 17th would require the success of an enormous nationwide education campaign, having just one state follow the path of nullification with enough stubbornness to brush off the Supreme Court when it says they can't do that would only require getting a large and vocal group within that state to insist on it.

[fisharmor]

I agree entirely with the concept of nullification.
However, the problem with judicial review is not that the Senate is ignoring its constituency: it's that it is following the will of the wrong constituency.

You can't find 51% of the general population who is even aware of a single case where SCOTUS screwed up a constitutional ruling. Also, the small percentage of the population that would list a ruling that they screwed up would probably list something like Dred Scott, and they wouldn't come within a mile of the actual problems with that case.

Again, I'm all for nullification: but I think that education campaign might as well start with us describing why it's necessary when we bring it up. It's necessary because the Senate doesn't represent the right entity, and they have constitutional control over who gets on SCOTUS and also over who gets kicked off.

[Pericles]

If SCOTUS is the judicial power, and judicial power extends to all cases in Law and Equity, arising under this Constitution and also to the Laws of the United States (the constitution is the law of the United States) then they have the authority to rule on what is and is not constitutional.

I'm ok with that. What I am not ok with is the fact that the 17th amendment destroyed a large check on federal power in that the state legislatures, via their erstwhile representatives in the senate, decided who was on SCOTUS. If the 17th amendment hadn't been ratified, then the judicial review of what is and is not constitutional would be more in control of the individual states, who would have an interest in maintaining their grip on their own local power.

If the 17th were repealed, you would see the exact reverse of what you see today: large, populous states might remain blue, but they would only be blue within their own borders. New York's senators would have an interest in keeping New York's money inside of New York. There would be no populist attempts at plundering the entire nation.

It doesn't make sense to me to blame SCOTUS for doing their job. It makes more sense to me to blame the amendment that fundamentally broke the system.

Edit: I also agree that congress has the power to limit SCOTUS' purview. I don't think that's as wise as repealing the 17th, though. I think that is a decent plan B... but it's also not undoing any of the damage the 17th did. It's just a band aid.

Bump for emphasis.