published Tuesday, May 14th, 2013

Nullification today

Paul Jacob

As the federal government lurches further out of control, wildly grasping to increase control over our lives, an old and controversial method of reining in our central government gains popularity: State nullification of federal law.

A recent Rasmussen survey asked whether "states have the right to block any federal laws they disagree with on legal grounds," and 38 percent of likely voters surveyed said "Yes."

Cutting to the quick of the Commerce Clause, a new Kansas law -- Senate Bill 102, the Second Amendment Protection Act, signed by Governor Sam Brownback last month -- states that firearms manufactured and owned in Kansas that do not cross state lines are not subject to federal law.

Of course, the Supreme Court thinks otherwise. In Wickard v. Filburn, the Court allowed the federal government to regulate darn near anything on the grounds that any conceivable act of consumption affects demand, and thus "commerce." Goofy ruling? Yes. But by tradition it's the Supreme Court justices who get the final word.

Yet even that has been denied by many constitutional theorists, including Thomas Jefferson and James Madison -- "Mr. Constitution" himself -- both of whom supported nullification, as recently explained by historian Tom Woods. No compact joined into by multiple parties may only be interpreted by one of the parties alone, unless specified to that effect. The Constitution doesn't even mention judicial review, so the tradition of the Supreme Court's final word is itself a matter of dispute.

Standing up for the status quo, Attorney General Eric Holder has written to Brownback against the new Kansas law, citing the Supremacy Clause. Problematic? Yes. But not easily dismissed.

Brownback has volleyed back.

At least we can expect the old issues of constitutional law to gain a new and lively hearing.

Paul Jacob is President of the Liberty Initiative Fund. His columns are available at: www.ThisIsCommonSense.com.

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AndrewLohr said...

If nullification be too polite, consider the language of a resolution from Farmington, Connecticut, in A.D. 1774: "That the present ministry (administration), being instigated by the devil and led by their wicked and corrupt hearts, have a design to take away our liberties and properties, and to enslave us forever...That those pimps and parasites who dared to advise their masters to such detestable measures be held in utter abhorrence by...every American, and their names loaded with the curses of all succeeeding generations" (quoted in The Ideological Origins of the American Revolution, by Bernard Bailyn, page 125 in my copy).

May 14, 2013 at 1:13 a.m.
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