My Case for Nullification instead of an Article V Constitutional Convention

About a year ago I got involved in the Article V constitutional convention debate, such as there is one. I came at it through the back door, stemming from a debate between Mark Levin and Randy Barnett on one side, and Publius Huldah on the other, over Nullification. The concept of Nullification, by which a state, or the states, just by saying “no” to a federal law, can negate it, is often put forward as a better method to fix out-of-control government than the constitutional convention method. Levin and Barnett argue that Nullification is not only not legal, but Madison, among others, was against it. It was here I stepped in citing what I felt was an undeniable justification for Nullification, citing my favorite case on point, the Declaration of Independence, or, as they call it at the War College, Continental Congress v George III (1776).

So I wrote The Final Word on Nullification is That there is no Final Word.

Please read it, as I just reread it and wouldn’t change a word of it, and it expresses my opinion about Nullification vs the Art V process to a tee.

Since that time, I’ve been stuck between a rock and hard place, defending Huldah and other Art V skeptics such as Phyllis Schlafley and Joe Wolverton, even though I am not thoroughly on board with their legal arguments about what would happen if an Article V convention were to go forward.

I chose sides in the debate because I dislike ill-mannered popinjays who pose as patriots, while trying to smack down dissenting patriots as if they were Marxists, especially here in the middle of America’s most existential crisis since the Civil War. Seems like a misallocation of priorities to me. I don’t like bullies, especially ones who carry brief cases. Period.

But still, the Art V project might just work, at least in getting the states standing in front of the Congress with a “demand” in their hands, which is as far as they can likely get. After that I wouldn’t bet a dollar against a Lexus that this project could move forward to a successful conclusion, as advertised. But neither does this entirely put me in the anti-Article V camp, for I can also foresee a collision between the states and the federal government that could cause the states to begin planting their swords and staking out their ground, assuming they have been properly prepared to go to the next level.

So, instead of ranting about the deficiencies of Art V popinjays, let me differentiate my nullification position with the legal scholars who support it. This takes me back to the first act of nullification in American history, the Declaration of Independence, which with clarity distinguishes between Nullification-as-hammer, and Nullification-with-quill-and-ink. I obviously favor the former, but also believe, in a moral universe, there has to be a final reckoning when these collisions occur that are settled by at least the threat of use of that hammer.

I’ve always been bemused by the other-worldliness of scholars debating an issue as if words can ever win anything outside of a courtroom. For the last thirty years of his life, FA Hayek lamented this fact, as he watched and chronicled the Left allege “facts” that were proven not to be true, but still continued to hammer those lies, as if there were no other truth. (This was the origins of the Big Lie, and yes, it has creeped over into the realm of conservatism, in part because it can be a proven money- and celebrity-maker, as well as face-saver….see Huldah’s answer to Prof Barnett’s claim that Madison was against Nullification, linked in the article above.) When proponents of two opposite points of view debate over an intellectual issue, such as what was in Madison’s heart when he wrote about nullification, or what Congress must to, cannot do, may do, when 34 states make that epic application for a convention call, and when, as in both cases, there has been no prior final legal word handed down as to what must in fact happen next, the eventual outcome will only become more words until have lost their meaning in never-ending debate, or until one side or the other forces the issue.

So when there is real skin in the game a final reckoning almost always has to ensue  So, in real life, Nullification is less a legal doctrine than it is an action doctrine, a face-to-face, put-up-or-shut-up threat, sometimes involving the threat of force. That was certainly the case with Continental Congress v George III in 1776.

Now in the American Revolution, the Declaration of Independence was not the beginning, but the end of the Beginning, that first beginning not occurring under the generalship of a scholar or parliamentarian, but under a real, live, shillelagh-law provocateur named Samuel Adams, who instinctively knew where all meaningful debates have to end up, if the stakes are high enough, and the words have all run dry, lapsing into redundancy.

Obviously, America sorely misses having a Sam Adams today, but circumstances may yet give us one. Obama may give us one. A feckless Congress may give us one. Who can say?

But the legality or illegality of Nullification will not matter when that time of reckoning comes. The higher moral purpose will trump law, and force a showdown. What those men did in Philadelphia was a high crime; treason under all the laws of the civilized nations, a hanging offense for all of them and all who followed them. They had no place to turn except to their willingness to carry their cause to the logical outcome, what the Greeks called “freedom or death”, and to have the presence of mind to prepare for it. (In the Art V process, what I have urged the state legislatures to do is to prepare themselves for a Round Two, for their guides do not appear to have entertained this contingency.)

This is no different from any collision between law and a strong moral purpose. Even the federal government has practiced Nullifiation…with mixed results. In Brown v Board of Education there was a nullification of the states’ previously-protected  right to practice their own customized versions of “separate but equal” in public education, as prescribed by a previous Supreme Court in 1896. And the federal government backed up that decision with the threat of  real military force, 1957-1961 in Arkansa, Mississippi and Alabama. Take note: the states blinked despite what appeared to be popular opinion to the contrary, because the federal government in fact held a higher moral hand, in part due to the good Christian folk of the old Confederacy, mostly wives, who knew that things had never really been all that separate-but-equal for good Christian black folk as the law prescribed. A kind of ethological guilt then, recognized even among Darwinists, muted and subdued any strong organized resistance, the KKK shrinking back to become a hangout for inbreds and skinheads, leading to a healing of the racial divide in the South within a generation, leaving true racism, mostly government-created, for the rest of America and big cities to confront elsewhere. Without the assistance of gerrymandering, mixed-race districts are now electing black Republicans at an accelerated pace, and one state, South Carolina has even elected a US senator on a statewide ballet. A conservative, in fact.

But the Court has not fared so well in nullifying laws that had a deeper moral foundation. In 1972 the Burger Court, in Roe v Wade nullified the states’ ability to prohibit, limit, or regulate women’s ability to have an abortion, a deeply held religious conviction going to the definition of life itself. Indeed, the Court had to create a new right out of thin air, in order to do so. The nation was deeply split then, along geographic, generational and religious lines, and remains so today, and despite the efforts of the national government to fund and coerce abortion into the national consciousness, its popular approval is on the decline.

So, unlike civil rights, Roe is an open wound still, and is no closer to being resolved in the hearts and minds of citizens than it was in 1971, the only difference being enough dead babies to fill Auschwitz, Treblinka, Sobibor and Belsen combined. So, in fact, the government has actually failed to nullify the states’ power to control abortion, because it has taken the universal low-ground. When such moral stand-offs exist, they cannot go on indefinitely, one way or another.

But with Roe the Court dove head-first into unknown waters, and for over 40 years the Court has tried to avoid that double-axel dive again, only it confronts one again; gay marriage. I can only hope the Robert’s Court has taken into consideration the perils of taking a second-bite at the moral-standoff apple, for this one could end much uglier, as Chief Judge Roy Moore in Alabama is presaging now. The people out on the hustings are getting all-philosophical again.

So, look for a similar, even stronger popular negative reaction should the Supreme Court go off the deep end a second time, for right behind the states on gay marriage are the Sheriff Joe’s of America, who are becoming more bold in finding new ways to say “no” to federal judges over illegal immigration, and the general high-handed and brazen disregard by the federal government of many other moral institutions of the People, with the clear and unambiguous intent of replacing those God-based moralities with new moralities, created almost entirely by the whims and political expedience of a few men and women.

To paraphrase both Jefferson and Lincoln, this “long list of usurpations cannot long endure”. A showdown must occur, either several small ones, or one really big one. By the time Jefferson wrote his “declaration of nullification” the parties all knew what would have to happen next, and were prepared for it.

In conclusion, the conditions precedent to affective nullification are not the words of Madison, or even a statement of constitutionality or legitimacy by the finer legal minds in America, sans Randy Barnett, Lawrence Lessig and Mark Levin.

It is fear.

And by fear, I mean the sort that John C Calhoun, who, acting as illegally and unconstitutionally as any legal scholar can define, when South Carolina nullified a perfectly stupid, but constitutional law, the Tariff Act of Congress in 1832, put the fear of the Lord into Andy “By God” Jackson, by daring him to send troops to take over South Carolina ports. And Andy didn’t. Instead Jackson blinked and had Congress give South Carolina a tariff law it could live with.

Lesson: the only successful state nullification of a federal law in American history was one which was totally unconstitutional, but worked anyway. Its instrument was fear.

90% of all the bottled-up fear in America can be found inside the 495 Beltway, and were it not for the paid hands they hire to protect them, it would also be the repository of 90% of all the out-of-season sweat in America.

So, I like our chances with Article V, but better,  any sort of state-sponsored nullification when the opportunity arises, for if a single state puffs its chest and decides to take the feds on the chance are high other states will join. And the game of chicken will begin….and nothing they say on FoxNews, (even George Will the Wise), NBC, CBS, CNN, ABC, the NYT WSJ, WAPO will matter a tinker’s damn, for the popular reaction will be firmly be in favor of the states…except Massachusetts and Delaware, Washington, Oregon and parts of California.

Fear, or the lack thereof, will determine the outcome.

Mounted or un-mounted, gloved or ungloved, I would rather go down swinging with the Constitution unchanged, than to see her soiled and un-protected from the vagaries of evil men three generations from now.

Hoka hey!

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