Nullification? Yes! Yes! Yes!

Publius-Huldah has written another masterpiece “Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage“. I decided late last night that this would be the subject I would write about today. Then I read one more article at American Thinker that changed my mind and I was up most of the night writing on a different subject. But I’m still way short of finishing it. So back to my original plan.

As usual, Ms. Huldah uses her expert knowledge of the Constitution and of the Federalist Papers to defend her position; this time against activist judges that want to read things into the constitution that are not there. It is a long post, which is normal for Publius-Hukdah because what she writes is for all practical purposes a legal brief. The only difference is she writes in language that we can understand. I highly recommend that you take the time to read her beautiful arguments. But apart from her article, what I want to share with you is the comment I left her in the form of a question and her reply to my question.

First my comment:

So what recourse do we have against these activist judges? Is this where Tom Wood’s nullification applies?

And here is her reply:

Nullification of unconstitutional federal court decisions is proper & appropriate:

1. Remember, Alexander Hamilton points out in Federalist No. 78 (6th para):

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. [emphasis mine]

So yes! The executive’s refusal to enforce unconstitutional judgments of courts is the “check” which the EXECUTIVE branch has on the judicial branch. [The LEGISLATIVE branch’s “check” is impeachment.] Officials of the State Executive Branch can nullify unconstitutional federal court opinions by refusing to support them just as the President can. And if the President sends in U.S. marshals to enforce unconstitutional federal court opinions, then the State Governor needs to call in the State militia. Or the Sheriff of the County may call in his forces to prohibit enforcement of unconstitutional federal court opinions. States must either defend themselves and their Citizens from federal encroachments, or submit to the tyranny which is right now being imposed on us.

2. The STATES have not only the inherent Right, but the Duty, to nullify unconstitutional acts of any branch of the federal government, including the judicial branch. Remember, State officials take Oaths to support the Constitution (Art. VI, 3rd cl.) – their Oaths are not to obey whatever the federal courts say.

Read her reply again and let it sink-in. Nullification is not only a right but an obligation on the Executives at the both the Federal and State level. Nullification is the check against unconstitutional decisions of the courts. Nullification is not just conservative rhetoric. How many of our elected officials are aware of this right and obligation? Very few would be my guess. This is a tool that must be put to use.

13 thoughts on “Nullification? Yes! Yes! Yes!

  1. Unfortunately that right was lost with the Civil War and any redeeming qualities of the South were vilified because of the North’s victory.

    A more practical approach would be to attack the 17th amendment. But of course only an anarchist loon would support that.

    It’s sad that we don’t judge proposals based on their potential efficacy, but rather the depth of the typical analysis only reaches to “that sounds crazy!” Sophistry has triumphed.

  2. I love the idea of nullification but I am afraid that Tony is right: South Carolina passed a nullification law before the civil war and it seems to me that one of the end results of the civil war was a granting of powers to the federal government that were non-existant before the war. I think nullification went by the wayside in 1865.
    But I say, let’s go for it anyway and challenge this in the court system!

    1. Thanks for the comment, Steve. I don’t know what the Carolina law said but I think nulification is specific to courts taking action that is not specifide in the constitution, such as, Roe vs. Wade and a whole lot more. The constituion has very specific mens for making changes to it and it was intentionally suppoosed to be difficult.

  3. I listen to Mike Church and he has broached this topic many times. He is in line that nullification falls within the authority of the states push back against unconstitutional laws. Great post Jim.

  4. That’s an interesting bit of information, i thought that your only escape from federal imposition was to cede from the Union. Good to know there are other avenues too.

    None the less, the feds would just threaten to cut funding if you don’t bend over. If only most of the states were fiscally responsible, then they could tell the feds to shove their funding up the backside.

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