A continuing series of discussions of Mark Levin’s new book,
The Liberty Amendments: Restoring the American Republic
(Discussion #20 – Nullification: don’t do an image search!)
If you’ve read any of these Liberty Amendments Mondays discussions, you are know that the United States is undergoing an historic Constitutional Crisis. If it is not resolved, Liberty itself could be forfeit. The question, as always, is How? How do we resolve this crisis? Also, can it be solved on a permanent basis?
Many of us are taking up the call for an Article Five Convention of the states, as described fully in Mark Levin’s book, The Liberty Amendments, which debuted August 13 of last year. That’s our plan, and we’re sticking to it. (Please read our previous discussions—see below—to discover why.) However, last week we introduced a form of obstruction to our efforts by men and women who are of the political right, who claim that nullification is a better way to go. Despite the occasional kook-fringe nature of many of the critics, we should all get a better handle on what nullification means, and why it is being considered by serious, thoughtful scholars as well as the cranky types who think we’re all “frauds” or something.
Nullification. It’s not just for breakfast anymore.
If you watched that clip, you’ll see an excellent bit of nullification in action. When Longshanks’ army meets up with Mel Gibson’s Irregulars, carnage fails to ensue. Why? Because the men from Stephen’s Island (a running joke) refuse to fight for Longshanks, and instead join with Mel’s homeboys. More than likely, alcohol was involved. (History is a bit fuzzy on all of this.)
But what is actually occurring? The dynamic tension should have resulted in warfare. Instead, they met in the middle and achieved a Null State, with regard to war. (Naturally, this state does not prevail for long anywhere men of power seek to dominate others. Mel’s entourage eventually wanders off home when the jug is empty, and our Blue-Eyed Patriot later winds up demonstrating his intestinal fortitude, Jackson Pollock style.)
Null states occur in nature when forces are essentially balanced. At that point, the varying forces cause no push or pull in any particular direction (serious geeks will like to bring up “action at a distance” here—ignore them and they might go away). People have learned to watch for these null states in order to determine boundaries, measure changes in forces, avoid arguments, and prove theories. For example, the “featured image” for this article involves a simple AC bridge circuit diagram used to determine resistances. You can measure the voltage across the “null” area to determine if the circuit is in balance. If it’s not null, you can “toy with it” until it is. This will involve matching the resistances, sort of how you’d balance things on a scale.
Interestingly, the form of the circuit involves a sort of ‘X’ shape, which looks a lot like the one you’d use to spot a Magnetic Null point among lines of flux.
The point is that nulls are also a form of equilibrium indicator. Nothing is happening at the null point, but all around it forces are in operation.
This is one clue about the problem of nullification efforts, in general. They are not fixed points in space, time, or law. They are merely places where the forces around them have ceased to have effect. When it comes to the law, or to The Final Argument of Kings, a lack of effect tends to be noticed. (That can be good or bad, depending on what happens next.) Nullification is not a boundary condition, it is a condition that may occur within the boundaries of the forces at play, be they laws of physics or laws of men. Nullification is not a part of the stage, nor the set, nor the costumes, nor props. Nullification is part of the play.
So much for the metaphysics. How do men use nullification within the bounds of the law?
Interestingly, nullification is a generally-respected action in a free society. It can be irritating to those in Law Enforcement, but it is a fact of life. Nullification is nothing more or less than the choice by some person or group to ignore a statutory law. It can be accomplished by simply ignoring the law, which can result in arrest and trial. But if enough people resist enforcement, a law eventually becomes understood as unenforceable, and is often stricken from the books by either a court ruling or legislative action. This is the least effective form of nullification, since Law Enforcement may choose to enforce such laws on a spot basis, which means someone will pay the penalty or face jail time, despite the majority of lawbreakers going free.
In countries where the rule of law has broken down, nullification is a way of life. A tribal chief or some “warlord” will control a region by force. This effectively nullifies any external law enforcement not strong enough to take them on. But such methods are beyond the scope of civil restoration of the Constitution.
A more “solid” form of nullification happens when a local group, such as a city or township, passes a resolution or law declaring some other, widely-observed law to be null and void. For example, several US cities have passed so-called “Sanctuary Laws” claiming that illegal aliens may not be arrested nor prosecuted within that city, despite Federal laws directing otherwise. This sets up a slightly better scenario for enforcement because it becomes a clash of policies, rather than Law Enforcement versus individuals. Whichever agency “wins” that clash is determined largely by the amount of political pressure put to bear.
Further, the concept of “Jury Nullification” can be used in any trial situation where the citizens deem the law itself unjust. Judges and lawyers have varying opinions on this tool that may be used by juries, regardless of claims by officers of the court. The fact remains, when no jury will convict, a law is effectively nullified. You can find many books on the concept of Jury Nullification. (Consensus on the topic is unlikely to develop, however.)
It’s important to note that the “clash” never goes away in such forms of nullification. A Sanctuary City in Texas might find its nullification laws trampled into the dust by State law enforcement, whereas one in Massachusetts will be largely ignored by State law enforcement. However, both situations are subject to radical change over time. Massachusetts residents might decide the illegal alien problem has gotten out of hand, and Texas might change demographically. Additionally, with such “negative enforcement” nullifications, it’s difficult for Law Enforcement to act. Who do you arrest when all the city did was tell the feds the law won’t be enforced? But nullification doesn’t stop there. The folks in Colorado have recently executed a higher-level form of nullification.
The Colorado state legislature passed a law last year that effectively “legalizes” marijuana sales and consumption. The state had every right to change their own laws governing this substance. However they are now in a clash with federal law, which also claims control over marijuana. This form of nullification of federal law is much more powerful than a city’s Sanctuary laws, because it has the power of statewide law enforcement behind it. When faced with state troopers, a federal law enforcement officer is less likely to attempt to intervene in that state’s jurisdiction. Especially when the sitting President is known for having enjoyed a spliff or two in his day. (Which might be last Wednesday, for all we know.)
However this form of nullification is not strictly a negative-enforcement situation. A licensed marijuana dealer in Colorado who decides to hop a plane to Alabama to visit relatives might find himself taken off that plane by a U.S. Marshall. It depends on the political calculation of the chief federal law enforcement officer. After all, nothing guarantees that the chief LEO will always be a former pot-head. What will happen when the chief LEO is someone who’s teenaged daughter was killed by a driver high on marijuana? We’ll have wait and find out.
But if you squint at the above paragraphs, you’ll see that ‘X’-shape again. The state legislature and state LEO’s, the media and national opinion, the President, and federal law, all pulling in different directions, with the null point somewhere in the midst of these forces. The fact is, forces pulling in many directions with regard to law enforcement will always surround such forms of nullification. The same sorts of things can be said about Interposition and Secession.
In the days leading up to the Civil War, these issues were debated hotly, and the Southern States decided on a path of secession. But nullification and interposition were discussed and attempted, as well as a state-brokered form of Convention to create a compromise Amendment to propose to Congress.
But in the political cartoon from Currier & Ives, above, you can see that X-shape vaguely in the tensions in the states. Lincoln on the left is pulling at a map of the states, with Davis on the right pulling in his direction. In the middle is General McClellan, who clearly isn’t interested in a fight. (Which explains the lack of a President McClellan after the war.)
We can only wonder what might have happened if the Southern states had chosen the Article Five second process instead of secession. But that’s not all: the concept of secession itself might well have been decided differently had the Southern States not chosen to fire the first shot in the Civil War. We’ll never know.
What is certain is that secession has been decided at least once, in bloody, and seemingly “final” fashion. One can only guess what will happen when the Null points of Sanctuary Cities and Legalized Marijuana change over time. When you add to the mix the nullification attempts regarding guns and the Second Amendment, and also laws regarding state’s rights to determine healthcare law versus the increasingly-ill-named federal Affordable Healthcare Act, you can see that the null points become intertwined and varied. Courts may intervene to try and enforce the ACA. Federal law enforcement might try to dampen legalized marijuana via arrests of people who travel across state boundaries. Some states will nullify certain federal laws, while others will seek to strengthen them (for example in the area of homosexual “marriage”). Some states will successfully defend their nullification laws regarding the Second Amendment, and others will fail.
This is the “hodgepodge” nature of nullification that we have discussed. While nullification can bring remedy to specific situations on a temporary basis, it does nothing to alter the structure or framework of the law and the relationship between the states and the federal system. (As We discussed last week, one only need look at the Roe v. Wade decision to understand how “permanent” a state’s laws are under our current system.) However, we all must recognize that nullification is important, and must be respected as a tool for change. Especially since change is inevitable when the time frame is long enough.
Which brings us to the fact that, over time, some laws simply become less important to society. This is “nullification by general lack of concern,” or maybe it’s “nullification by The Time Being.” Either way, Time is a powerful agent of change, (but it sure takes a lot of time).
At this point, what becomes obvious are two things:
- Nullification will never be eliminated as a tool for changing law enforcement
- Nullification is not a permanent solution to structural problems of the law
The second point above is why nullification is not the best solution to our Constitutional Crisis. It won’t make a structural difference for all states, nor one that is permanent (or, in terms of a nation’s lifespan, as permanent as possible). What would be the point of fighting with every scrap of energy and resource we have available for a change that evaporates in the span of only one generation?
While nullification does have its uses, we truly must focus on the Convention of the States to prevent the European-ization of our nation. We must have Amendments that restore the balance between the federal system and the states, and thus ensure the protection of liberty for generations to come.
Discussion #19 – The Kooks and Neoconfederates Edition
Discussion #18 – #Shutuppery
Discussion #17 – Why All The Lies?
Discussion #16 – A Few Quick Notes
Discussion #15: Our Cities: The Real Misery Index
Discussion #14: The Missing Balance and the Many Applications
Discussion #13: Activism, and the Scope of the Problem
Discussion #12: Cutting Back The Bureaucracy
Discussion #11: ArticleFiveProcess site news
Discussion #10: The Article Five process is how we go on offense
Discussion #9: the filthy habit of continuing resolutions
Discussion #8: Naysayers
Discussion #7: Tracking Our Progress
Discussion #6: Amendments on Spending and Taxes
Discussion #5: How much power do the states have?
Discussion #4: What If They Hijack the Convention?
Discussion #3: An Invitation to Our Friends on the Left
Discussion #2: Run Away!
Discussion #1: Zombie Doctrine, Tactics, and the Liberty Amendments