What, Exactly Does “Nullification” Mean?

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!)

It’s Liberty Amendments Monday, here at TheRightScoop! Unfortunately we are currently experiencing a Constitutional Crisis. Please keep arms and legs within the vehicle, and lock arms for your protection. Those of you with small children will be expected to pay close attention. The rest of you will be tasked to the limit of your endurance. We hope to return to normal operation shortly.

AC Bridge Circuit

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.

MagneticNullMagnetic Null – X marks the spot

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.

This explains the difference between the posted freeway speed limit in Detroit, and the real, average speed driven by drivers on Detroit freeways.

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.

Lincoln, Davis, and McClellan pull at the nationForces pulling the nation apart in 1864

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.

XKCD CartoonImage Copyright, XKCD

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

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  • CalledUntoLiberty

    Here is some more informtion on the process and history of nullification for anyone interested.


    • Ryan H.

      I would love to see Levin, who is often critical of Tom debate him on this subject.

      This website seems to support intellectual civilized discussion so surely it could get behind such a debate?

      • CalledUntoLiberty

        Ryan, I would LOVE to see that too, but who are we kidding. Name calling only goes so far when you go toe to toe with someone who fully understands this stuff like Tom does.

        I share your sentiments friend…

        • $12112543

          It would be hard to find someone who “full understands” it better than Levin.

          • CalledUntoLiberty

            I assume your quotations around “full understands” is supposed to be mocking a typo that was never made? A swing and a miss.

            And yes, I do mean to imply that there are people who understand American history and politics better than Levin. He’s like Alex Jones for conservatives, really good at yelling, but not a lot to say.

            • $12112543

              He does more than yell. At this point, he is in line to be the “father of the convention of states.”
              And Woods is the Alex Jones of the other five kooks at the Von Mieses Institute, whose names are something like Curly, Larry and DeLorenzo..

              • CalledUntoLiberty

                Yes, you’ve obviously done so much research on them that you were able to correctly spell Mises. Strike two. Typical Levin acolyte, when in doubt, use ad hominems like Curly, Larry, DeLorenzo.

                I’m all for a convention of the states, I hope they do it, and I hope they can make these Liberty Amendments because they would go a long way in taking back what if rightfully ours, our liberty. Now the problem I have with only amending the Constitution is that the Constitution has been ignored on both sides of the aisle for decades, so what is to stop it now?

                Nullification is more than just putting things on a piece of paper, it is about challenging the legitimacy of people who would use force to take away our God-given rights. It is a change in attitudes more than a change in law. The government only gets away with acting this way because our silence is implicit consent. All it takes is a few to stand up and say, we no longer consent to your tyranny, you can pass anything you want, and we’re going to ignore it.

                It is about challenging the fundamental idea that just because something is the law, makes it morally right.

      • The debate is ongoing, is online, and is in several published works of many credentialed authors.

        These weird calls for someone “to debate with Tom” make no sense, given that none of these discussions are taking place in secret.

        If someone wants to make their case, they need to make it. It’s that simple.

        • $12112543

          I don’t see any likelihood of Levin dignifying Woods by sitting down at a table as equals.

          • I’d guess you’re right. Especially with so many people making noises about Levin being “unable” or “afraid.” That’s pretty much a guaranteed way to be make sure someone stays ignored.

        • Ryan H.

          This debate isn’t just between Levin and Woods, you’re right. They are not the originator of their respective views. However, Levin has resorted to insults, suggesting that nullification isn’t Constitutionally legitimate. The debate should be between the idea’s effectiveness, not why one idea is completely invalid.

          Would you be opposed to what Tom proposed here:

          • Levin responded in kind to a variety of highly insulting language from the “nullify only” crowd. Right out of the box came claims that he (Levin) was a fraud and was misleading people. These claims came from people who clearly hadn’t read his book. If folks don’t want to get bit, they shouldn’t kick the dog.

            And Levin doesn’t “suggest” anything of the sort.

            He’s clear on the fact that nullification is not something within the bounds of the Constitution, and it isn’t. As I showed here, nullification is an act by people who have chosen to ignore a particular law or declare it null and void. It is an extra-legal action by definition. In fact, every human on Earth has the same option to make a nullification attempt. It’s just that in some places it will get them killed.

            I looked at the vid. When I got to the part about “straight out of Rachel Maddow” I decided I’d already had enough of this guy. He basically placed a great big sign around his neck that says, “ignore me.”

            So I will.

            • Ryan H.

              I’m sorry Levin had to respond to invective from the ‘nullify now’ crowd but they don’t speak on behalf of Woods. You can’t dismiss a debate with a guy simply because some people that may follow him were nasty to you. This would be a great debate between two intellectual Constitutional scholars. How can someone not want to see that?

              You’d be doing yourself a disservice to ignore Tom or anyone else from the Mises Institute. I’ve read posts from this site that didn’t portray the Mises Institute favorably, but I can’t seem to understand why? This site has real opportunity to reach out to all those who are liberty minded and free market supporting, but not once have I seen an article on Peter Schiff, Bob Murphy, Tom Woods, Walter Block, etc. They share the majority of your views (with the exception of military intervention, nullification and the Lincoln legacy) about as rabid and unapologetic as anyone out there. Yet, they’re ignored because people like you hear one thing they don’t like. Come on, I defy you to find something you dislike in their their free-market framework. Ah, forget it.

              I’ll end this rant by saying, PLEASE read ‘Anatomy of the State’ by Murray Rothbard.

              • My rejection of the video is not made based on ignorance (not totally, anyway).

                I’ve read Rothbard. I put in my time learning about Von Mises and the Austrian school of economics. I’m well-read in Objectivism, Libertarianism, and the philosophers from which their ideas came. One thing I decided long ago was that philosophy is not a discipline for the man with an axe to grind.

                Every single paper or article I’ve read by a man who seeks to tear down someone else has always ended the same: unenlightening at best.

                This is what turned me away from a lot of Libertarian writers (as well as many “paleocon” type writers). That need to be seen as absolutely correct eventually renders their thoughts to be cartoonish and lacking in insight. (Not as cartoonish as any random leftist you could pick, but cartoonish compared with the best classical liberal thinkers).

                Levin exemplifies some of this in his radio program, of course, but that’s where it ends with him. His books are not like his program. When he’s interviewed he sounds very different from his talk-radio “schtick.” When he gives a speech he sounds like his books, and not like his radio program.

                This is why his work on Article Five is at least worthy of our attention. Even so, I read the work of the Independence Institute, Lawrence Lessig, Randy E. Barnette, Michael Farris, and Jeffrey Lord to see whether Levin’s proposal’s had merit.

                Not one of those writers began by claiming proponents of nullification were frauds, or any other sort of ad hominem. Levin’s books are the same way (despite being less significant, with respect to the broader philosophy). It’s my years of reading that have made it fairly easy to spot things that are not worth my time.

                Even so, I’ve trudged through many of the “Nullification only” crowd’s recent criticisms. That’s why I wrote this article. I don’t see this disagreement as something that merits an actual, stand up debate with a moderator and time limits. The audience for something that technical and detailed would be too small to support the effort.


                I’m unaware of any posts at therightscoop that have anything to do with the Von Mises institute. Scoop has a good grasp of what “plays” here, and philosophy is not it (he is kind to host these discussions, but it’s just not his thing).

                This site is predominantly Christian Conservative. I’m probably the closest thing to a Libertarian you’re going to get as one of the “regulars.” We’ve had some “irregulars” who are Libertarians and “classical liberals” but the only ones who stick around to join the conversation are ones who have a relaxed view of things.

                The “nullification only” folks could use a lot of relaxin’. It would help their cause.

                • Ryan H.

                  “Philosophy is not a discipline for the man with an axe to grind”

                  Libertarian philosophy is based entirely on voluntary exchange, property rights and the non-aggression principle. I would say these are pretty rational and morally consistent principles that were not based in some deep rooted hatred for Govt by its practitioners.

                  “That need to be seen as absolutely correct eventually renders their thoughts to be cartoonish and lacking in insight”

                  You can’t deny the level of contributions and research provided by the Von MIses Institute (I’m lumping all of their senior fellows here). Just because someones views are unconventional doesn’t mean their chronic contrarians who are always looking to put themselves on an intellectual pillar. I look at the substance of their criticisms when I form my opinion and so far they’re the most consistent and agreeable.

                  “The audience for something that technical and detailed would be too small to support the effort”

                  Walter Block has written numerous peer-reviewed articles. More than anyone should, especially since they don’t pay anything. Why? Simply to advance and teach the libertarian movement to young people. Just the other day, Lew Rockwell stood up to the NYT and told them they’re not allowed into the LVMI because they’re part of the ‘regime.’ My point is, not everything is done because their is a financial component and name advancement opportunity. Who needs a crowd. They don’t even need to be in the same room. Five webcams (including the moderators) and throw it up on YouTube.

                  “I’m unaware of any posts at therightscoop that have anything to do with the Von Mises institute”

                  My bad–I meant in the comments, not posts by the website

                  I appreciate you taking the time to continue this discussion with well thought out responses. You’re obviously not an ignorant guy and have formed your opinion over many years. For the record, I’m not against a State Convention, I’m just not against nullification. Levin should take after you and engage someone in a debate even when they’re the only two involved and everyone else has stopped reading four days ago.

                • Seems we agree on most of this.

                  The Axe comment is about particular writers, not general philosophy.

                  “Postmodernist” philosophy is full of axe-grinding, too. So it’s not just Libertarians or conservatives. Of course, postmodernism is about anything one wants it to be, so the axe-grinding there can be hilarious.

  • Meat Fighter

    Nullification and the Article V COS movement are not mutually exclusive. I agree that the Article V COS is a structural solution that will re-balance the states and the federal government. However, I think you may have missed one salient point in the nullification effort and that is the idea of “federal supremacy.”

    Most of the people in this nation have no idea that the federal government is a creation of the states and that the federal government in our structure of government is very weak without the participation of the states. The further nullification efforts succeed the further the veil slips on federal supremacy and the more people realize that the federal government is a paper tiger.

    Proper Constitutional nullification of un-Constitutional laws within the framework of the Kentucky and Virginia resolutions is both prudent and proper in our Republic; Calhoun’s improper use of nullification i.e. nullifying legitimate federal authority is conversely improper and not prudent in our Republic.

    I have always wondered what would occur if a state like Texas with a strong and articulate governor simply stated that current federal action on a wide range of issues were null and void within the sovereign state of Texas. What would happen? Would the federal government take up arms in order to enforce environmental regulations? Would the federal government take up arms to enforce Texas residents to purchase health care? Of course they wouldn’t. So why has this not occurred? It gets back to my first point, the veil has not slipped quite enough for people to realize that they already have the power at the state level. When the veil of authority and control finally slips and a federal government realizes they do not have the will or popular backing to take up arms against fellow Americans to enforce the unconstitutional administrative state upon the states, then they will be shown for what they are…..a paper tiger. To this end nullification is effective.

    With all that being said, I still think the Article V process is the most proper and prudent method for re-balancing our Constitutional Republic.

    Thoughts K-Bob?

    • I think you are correct. Nullification carefully applied can only help. Unfortunately too many folks think it’s an either/or situation and are impeding their own progress.

      Frankly, when Levin was dropping hints about the Liberty Amendments book long before it was released, I fully expected him to endorse a compact of states aimed at either nullification or interposition. I used to link people to the wikipedia article on interposition and tell them to watch out for it.

      Instead, Levin’s work (which builds on the work of Natelson and Barnette and a few others, really) uncovered the fact that most of us had been lied to throughout our entire lives about Article Five being a pathway toward a Constitutional Convention.

      Once I understood what the Convention for Proposing Amendments really was, I was angry at first because our schools and many conservatives had let us down so badly on the research. (We can’t all go into the Library of Congress and Madison’s actual correspondence, etc.)

      But now we can see it’s a “safe, legal, and rare” means to amend the Constitution. So we should definitely attempt to get these Amendments discussed in a Convention.

      But at the same time, I want states to continue to hammer “Obamacare” into the ground via nullification, lawsuits, and anything else they can do. We have to chip away at it constantly until it goes away.

      • $12112543

        “I fully expected him to endorse a compact of states aimed at either nullification or interposition.”
        And yet he is so vehemently outspoken against those ideas. I can tell you this, you guys keep tossing around all this “neo confederate” rhetoric, you’ll just be throwing another roadblock in the way.

        • The vehemence came from the other side, first. And it continues with charges of “fraud” and “misrepresentation,” and on it goes.

          Nobody wants to listen to someone who wades into a discussion sounding like a crank. But that doesn’t stop them.

    • $12112543

      “Most of the people in this nation have no idea that the federal government is a creation of the states”
      You didn’t build that.
      I would be one of them; because the first 13 states created the federal government. The federal government created the other 37.

      “Nullification and the Article V COS movement are not mutually exclusive”
      Well,,,yeah they are. An amendment is created by 3/4 of the states in agreement with each other. Nullification is created by one state in agreement with itself.

      • That is not exclusivity. Nothing about nullification is exclusive. In fact, exclusion is the death of nullification attempts. The more who join the effort, the better chance nullification has.

        For example, If all fifty states passed resolutions declaring the ACA null and void, it would end the ACA, regardless of the Supreme Court or Congress.

        If only twenty do it, it lives on. Weakened, perhaps, but definitely alive (undead?).

      • Meat Fighter


        Are you insinuating that the 37 states that came after the first 13th states do not have the same sovereignty as the first 13? The premise of the state codified in our federal Constitution and furthermore in the independent state constitutions is that of responsibility and authority over a multitude of areas, where as the federal government has authority over few and limited areas.

        Nullification is the duty of each individual state because they are sovereign entities if the federal government usurps power unconstitutionally from their domain. The fact that the Article V remedy to federal abuse of power requires 3/4 of the states does not desolve the states of their sovereignty and overall responsibility to their citizens. The fact that one state applies a certain process (nullification) or 3/4 of the union under Article V is comparing apples to oranges thus making the point that they are mutually exclusive of each other, but work towards the same end state.

  • poljunkie

    The Liberty Amendments: Restoring the American Republic is on my bedside table and I have read and re-read chapters paragraphs,and passages.

    Mark Levin is well versed when it comes to the Constitution, and I have learned a lot from his books, these discussions and posts.

    • Thanks, pj! I’ve definitely learned a lot, too.

      I’m working on a book report that I hope to have up over at the ArticleFiveProcess site sometime next week. We will all learn a lot from that, because the book is a recent collection of papers by major figures in Constitutional Law regarding Article V, nullification, interposition, and secession.

      • $12112543

        “Major figures” on secession? Sounds like the intro to a meeting of the Von Mieses idiots.

        • The Von Mises folks, like the Heritage folks, occasionally toss out a stinker. But they’ve done some good work over the years. I haven’t seen whether they (or Heritage either, I guess) are mostly opposed to an Article V Convention or in favor. Not enough time to look into it.

          But the book features a few of the same folks Levin referenced in his book. These are pretty level-headed guys, from what I’ve read so far.

          • $12112543

            Every Von Mieses guy I can think of can’t stop hating Lincoln, which to me, is a useless pursuit. And they sound like they don’t know they Articles of Confederation are no longer the governing document. Basically, they’re Paul Bots.

            • Yeah, the Lincoln hate is bizarre. It’s like there couldn’t have been any extenuating circumstances to any of his actions. Everything was just fine.

              That is where I change channels right away.

  • sDee

    Well you drew me in with the Wheatstone Bridge. I know it well – practically and mathematically.

    I enjoyed this post. I agree that nullification is part of the play, not the play itself. The play is the American people taking our government back – one way or another.

    The Wheatstone nullification analogy fits for the examples you gave: e.g.municipalities unhappy with state/federal laws, state marijuana laws, judicial activism, and sanctuary cities.

    All those examples justify their civil/legislative disobedience on popular disagreement of the law in question. They are organized out of greed, political opportunism, ideology or buying votes. They are not pursued in the name of protecting the essential principles of state sovereignty and limited powers prescribed by the Constitution and Bill of Rights.

    Nullification efforts like those I support are far from this. We understand that the states must, under existing process, take a stand to stop Federal overreach by nullifying laws which are unconditional – those like Obamacare which are not enumerated powers and are unconsitutional despite the ruling of a Progressive kangaroo court.

    The States must do this. It is not antithetical to an Article Five Process.

    I might even speculate that if we cannot pull off the nullification of something as blatantly unconstitutional as Obamacare or the 17th Amendment, how could we pull off an Article 5 process?

    • Good comments! I think we have to remember what we’re up against when answering that last question. Failure means the slide toward totalitarianism will accelerate. People forget that Germany was the most advanced nation on the planet (in terms of technology and manufacturing capacity) and that Europe has always had more people and cities than the US. So if Europe could complete the slide into Fascism and Naziism in a few short decades, it can certainly happen here.

      Thus, failure is not an option.

      But more importantly is to remember that the states are still sovereign entities with definite power. We cannot possibly craft one Amendment that “fixes” our problems. We can only hope to restore critical lost powers to the states, and let them slowly dismantle the excesses of the federal system.

      But the states don’t need a massive grant of power. They just need (at a minimum) to regain their representation in the Senate. That would have major repercussions. Anything we can do beyond that would be fantastic.

      • sDee

        Wouldn’t the nullification of Obamacare and EPA regulations based upon abuse of power, serve as a foundation for regaining that power?

        Obamacare is now a rallying point and all states have the infrastructure to manage health insurance regulations and rates already.

        Then repeal the 17th. then…..

        • I don’t think it can serve as a basis. Nullification is more like “battlefield activity”. Changing the Constitution is like changing the entire battlefield.

          The actions taking place on the battlefield are always subject to change. If enough states weaken the ACA through nullification, it would slowly lose traction. But it won’t take it out entirely.

          That’s the problem with the “let it implode” plan. It works, but as we saw with the 70-year collapse of the Soviet Union, it takes FAR too long.

  • Ryan H.

    Although I disagree with your analysis that nullification is a less effective mechanism to resist unconstitutional federal laws, at least it’s being discussed. I have objections to two things you’ve stated:

    1.) “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”

    The rule of law is an ambiguous phrase but often regarded as an unquestioned absolute. For example, despite whatever violation of property rights the law permits it is still perceived by some that it should never be broken without penalty. This is the same feeling that’s implicit in your statement; that if the rule of law has broken down the only thing preventing complete chaos is totalitarian use of force. However, people who believe in nullification feel that a law should be nullified if it is violating property rights of the people in intends to protect. Obamacare, min wage law, anti-discrimination laws, and laws against drugs are all examples of this. Thus, nullification aims to diminish the use of force, not create it. In this case, it is the rule of law that’s corrupt, not the people.

    2.) It won’t make a structural difference for all states, nor one that is permanent

    My first argument is that nothing is permanent. Not even the Constitution as it’s currently written. This is partly for the reason that it can be amended legally and also for the reason Congress and the President will illegally completely disregard it anyway. Nullification simply prevents the Federal Govt, which was created by the States to have an monopoly over the States in interpreting the Constitution. It’s likely that any time nullification is cited, it’s to reduce the power the Federal Govt. So while it’s not permanent as long as nullification is respected, which it has been throughout history, it will always be a step in right direction.

    • Your first point falls under qualifying the concept of what form of society we’re working with. These discussions are really meaningless in situations where law is nothing more than diktat.

      So the way to frame the debate is at least in the realm of civilized nations where the rule of law means nominally what you’d expect in “Western” style nations.

      In such nations, the “rule of law” is not corrupt in and of itself. Despite the creeping totalitarianism (and the foolishness of the ceding of sovereignty to globalist agencies like the EU and the UN) the legal framework is still reasonably strong. It can still be used to reduce the impact of the left, if the people get control of the statists running the place.

      Nullification is not really necessary to apply to very many specific laws here. The ACA and Second Amendment cases are about the best instances of the use of nullification. Thankfully we’re not in such dire shape that we need it for very many things.

      As to your second point, I did add that qualifier about permanence in the penultimate paragraph. But you are correct.

      However, nullification is nothing more than a tool. Any tool can be misused. For example, instead of nullifying gun laws in Colorado, they instead are focused on making pot legal. My guess is they decided they needed the revenue or it would never have seen the light of day.

      I’m not big on prohibition (in fact, before the advent of modern, dangerous, “designer” drugs I was a purist against prohibition), but the state our nation is in right now means we need to focus on more important things. I realize this is more adjacent to your point than I intended, though.

      • Ryan H.

        Thanks for responding. I’d argue that the rule of law in civilized countries can still be corrupt. Any law that violates property rights is, in my mind, something completely superfluous. For example, the Cyprus Govt seizing a percentage of the bank accounts. A modern and developed country can still violate the most basic of property rights and engage in theft (Taxes are equivalent but that’s a discussion for a different day). Violation of property rights is the only condition I consider when evaluating law.

        And since you brought up–legalizing pot. I agree, there are far more important things to focus on but everyone who supports liberty should applaud it’s legalization. State govt should absolutely nullify gun laws but any form resistance to the state is a win. When a govt outlaws something as basic as the distribution and possession of drugs resulting from voluntary exchange it itself becomes the genuine outlaw.

        All supporters of liberty should be cheering this as a step in the right direction.

        • The “rule of law” is merely a framework. So is the organization of a nation’s government. So they cannot really be corrupt, they can only be designs with flaws (all human designs contain flaws)(including the preceding parenthetic clause).

          The Constitution is not written to prevent corruption. It’s written to give people a chance to have a government where corruption is limited.

          That gets to another point I’ve covered before.

          The brilliant thing about our Constitution is that it
          1) Respects and complies with the concept of unalienable rights contained in the Declaration of Independence.
          2) Represents a framework where decentralization is the most important concept, and every place where centralization would tend to occur they found ways to make it less likely, with remedies for repair in the event it did occur.
          3) This meant that it was constructed to not only have balance among the branches of government, but CONTENTION as well.

          Nullification is part of the Contention aspect.

          I’d argue that at some point, Congress must make a declaration regarding the Constitutionality of Obama’s various unlawful acts. It would have the same effect as a Supreme Court ruling, if Congress had any guts at all. Unfortunately they do not.

          I agree that we need a full-court press in all areas of contention against this unlawfulness. Nullification, declarations of unconstitutionality of the President’s actions (with demands for remedies), Arrest of federal agents attempting to enforce unconstitutional orders by the President, and the Article Five process.

          We need them all.

  • JMiller1776
    • sDee

      “Madison embraced something very different. The practice of
      interposition—public opinion, protests, petitions, and legitimate
      actions of state legislatures—focused attention on whether the
      government was acting in conformity with the Constitution”

      As I outlined below, this “interpostioning” is the spirit of the current serious nullification initiatives being organized. They are rooted in laws and regulations that are unconstitutional (Obamacare) or anti-constitutional (17th Amendment).

      Except for the reasoning of some Libertarians, Colorado’s marijuana law for example, was not a populous effort to defend the Constitution. It was a coalition of opportunists, dopers, millennials, old hippes, and the politicians who wanted their votes.

      • Madison became opposed to nullification as he got older. He understood with the perspective of time that nullification represented no permanence.

        • $12112543

          As he got older? The question only cam up when he was “older.” He never favored it.

          • The nullifiers have several Madison quotes showing that he was much more inclined to support nullification when he was younger. I’ve only begun to look into his overall views recently, and know he didn’t favor it over the Article V pathway.

      • timb117

        No offense, but one cannot describe a part of the Constitution as “anti-Constitutional.”

        It’s weird that so many people seems to forget the rampant corruption and disgust with political machines which inspired the 17th Amendment. For goodness sake, Clark from Montana actually purchased a Senate seat. It’s a lot harder to bribe a populace than it is a State legislature

        • Bribing a populace is pretty much the main tactic of the Democrats these days.

          • timb117

            Not really an answer to changing the structure of American governance. I prefer to think of reactionary as someone who favors repealing the New Deal; not bringing back a failed political system of the 18th century

  • $12112543

    ” the Southern States decided on a path of secession.”

    That’s euphemistic enough to be part of a Hillary explanation of Benghazi.

    • I chose that phrasing to indicate that the debate raged for decades before South Carolina decided to act. They tried nullification and interposition first, but ran into another problem with nullification that I didn’t address: participation.

      Nullification is like organized resistance. If you are the employee calling for a wildcat strike at a non-union factory, you had better hope that most workers join you. If they do, you are in a position of power. If only you and a couple of dupes go on strike, you’re out of a job.

      Same with nullification. Like the newly-fired employee above, the Southern states didn’t get any traction with their efforts there. Secession could have met the same fate (and maybe have prevented war), but enough states joined South Carolina, and the die was cast.

      • $12112543

        Thank God, they didn’t get “traction.”
        “They tried nullification and interposition first”
        Oh, so reasonable in defense of tyranny they were, gradualists, and then they just chose of path… of land grab. Somewhere in all this reasonableness, they put nothing on the floor of Congress.

        And never mind that the tariff they were trying to nullify was constitutional.

        There was a holiday last week. In MLK’s famous speech, he upholds the Declaration, the first self-evident truth; and counterpoints George Wallace’s mouth, “dripping with the words of nullification and interposition.”
        And what was Wallace trying to nullify? Equal rights.

        You are so on the wrong side of this that you are literally standing with the Democrats (Calhoun, Forbis, Wallace). And it’s nice that RS keeps citing Levin, and his book is the flame that is lighting this fuse, but to him, nullifiers are “kooks.”

        • You have managed to impute an opinion and a conclusion that do not exist. I have shown why nullification won’t work. I have shown that the path of tyrants failed. I have spent many long hours here explaining why the Article V process is the correct answer to all of it.

          I suggest you search your premises. Because if I’m on the “wrong side” here, that places you squarely with the voices who claim Levin is the fraud, and he is the one misleading people.

  • John Davidson

    I like the electronic diagram. Perhaps we can learn a lot more using Ohm’s law.

    • sDee

      Yeah. 😉

      I suggest we discuss the possibility that a shunt circuit analogy might better represent the State’s action.

  • FreeManWalking

    The judicial branch has a pretty good grasp on nullification. Sometimes it only takes one justice to re-write a bill so that in his opinion what he writes makes an unconstitutional bill constitutional.

  • timb117

    Nullification is a Calhoun-esque tool, which has been ridiculed since the beginning if the Republic by patriots. The dang Constitution itself says Federal law is supreme.

    Still, as to the larger issue, the founders met in Philadephia to enact a document which could do something to reverse the chaos of the Articles of Confederation. Levin’s ideas unintentionally resurrect the Articles by devolving too much power to State legislatures, which was the same power wielded by state governments under the Articles.

    I understand the fear some people have regarding the current government, but it seems to me, rather than empower a minority of the US population (some estimates claim as little 20% of the total US population would have veto power through this state legislature system).

    Seems to me the better way to affect Federal policy is to elect conservatives to office and Levin’s ideas are an implicit admission that conservatives cannot win an electoral majority and he is attempting an end run around this fact. I reject that calculation and maintain conservative ideas can win elections.

    Thanks for your time

    • “Levin’s idea”….No, the FOUNDER’S Idea!

      • timb117

        The Founders idea was to establish a powerful central government, because decentralized power to the States was not working.

        Of course, they also liked things like keeping non-property owners from voting, women as second class citizens, and slavery, so they were, and this is important for Levin followers, not perfect

        • You aren’t even trying to engage in this topic. This topic is for honest discussion, not disingenuous trolling.

          • timb117

            I already engaged in this topic and was informed by you that elections can’t be counted on to change policies.

            The comment you are responding to is also a widely accepted version of what drove folks to Philadelphia, i.e. the decentralized Articles of Confederation were failing the country.

            If you want to think that’s trolling, well, you and I have a different idea of what the word means

            • This is a substantive comment. Your other one was not. It was ad hominem and bizarre accusation.

              If you can’t see the difference than you might want to look it up.

    • 1tootall

      If that is indeed true, then you have nothing to worry about within the process outlined in Article V with respect the Convention of States format. What do you mean…”Too much power to State legislatures…”??? I lost you on that one. The Constitution is fairly clear, (to me), that states have any authority NOT enumerated in the document itself. (That sentence itself is quite confusing, for the record in your post.) If Levin’s proposal to effect the Convention of States is in ANY way an attempt at bypassing the Election process, it should show immediately. After all, only 12 states need to vote AGAINST any proposals executed by the Convention. It should be a slam dunk for your team in that case. What are you worried about????

      • timb117

        That y’all are wasting your time on stuff history shows doesn’t work, rather than trying to work within the system to make changes. Oh, and that you’re falling for the silliness of a talk show grifter who understands less of the Constitution than most 2L law students.

    • Many fine patriots were Anti-Federalists. Nullification was a way of life to such men, which is why they insisted on the Bill of Rights before agreeing to ratify the Constitution.

      Calhoun-esque is merely one style of attempted nullification. To lump the myriad ways of nullification and interposition under that one concept is kind of like calling all pencil drawings “cartoons.”

      As to that last point, the entire genesis of the work done by the Independence Institute, Citizens for Self-Governance, Mark Levin, and many other serious researchers into Constitutional law was the fact that “electing conservatives” does. not. work.

      His ideas aren’t an “implicit admission” at all. If you think that, then you appear to have never heard him speak nor read anything he’s written.

      Levin’s ideas are an open condemnation of the fact that conservatives, once elected, continually fail to stay true to Constitutional principles.

      Whether they “win” or not is immaterial.

      • timb117

        So, we can’t win any elections and need to game the system so a minority of voters can control the government?

        Well, that pretty much does it for me…

        • I see no one making such a claim. Perhaps you could supply a quote?

          • timb117

            As to that last point, the entire genesis of the work done by the
            Independence Institute, Citizens for Self-Governance, Mark Levin, and
            many other serious researchers into Constitutional law was the fact that
            “electing conservatives” does. not. work.

            You just said it and the Liberty Amendments say it too: we cannot stop policies in Washington, but we control many low population states and will exercise veto power through those state legislatures.

            Maybe you don’t see it that way, but why else would we give Kansas the same power we give Texas? It’s an anti-democratic manner of governance

            • I’m not sure what you mean here. You seem to be arguing against the sovereignty of the states.

  • crakpot

    Precise and logical.

    I would argue that unequal enforcement is not a side effect of government nullifying our Constitutional protections; it is the purpose of it. No better example than regulation, which is criminal law simply renamed to get around due process, warrants, equal protection, etc. Their guys get to do what they want, we get the full force of the “law.”

    This is why we need more than rubber stamps – we need preemption and deterrence in the Amendments.

  • Wow – Nullification is hot hot hot…


    I listened to Mark Levin’s entire C-SPAN interview, and the real Mark Levin showed up, the same guy as on the radio whom I listen to now online at MarkLevinShow.com because my local radio station in El Paso, Texas removed him last year and replaced him with someone who lives in Santa Monica, California whom I had never heard of, Andy Dean. Andy is a nice enough guy, but… he’s not Mark Levin with Mark’s political and legal experience and his laser focus on protecting the U.S. Constitution and it’s original intent, which is still relevant, or what is ‘original intent’ for.

    That paragraph is a preface for the discussion about James Madison and his ‘Notes On Nullification’ as discussed by Michael Maharrey at the TenthAmendmentCenter.com. Michael is friendly to Mark as a fellow patriot but he does not agree with Mark’s assertion that nullification is not a constitutional issue. Also, the comments include a person who was removed from his radio position because he removed Mark’s radio program from the radio station, and Mark wrote back.

    The URL is >> http://tenthamendmentcenter.com/2014/01/07/mark-levin-doubles-down-on-james-madison-and-nullification-hes-still-wrong/#.UuiH1rRlC4U

    Here is one quote –

    “That was the crux of the matter and the target of Madison’s opposition.

    “And we agree with Madison’s assertion.

    “No “constitutional right,” or
    “constitutional process” of nullification exists.

    “Nullification stands
    as a natural right.

    “It is an extra-constitutional, but legitimate,
    process to stop usurpation.

    “Keep in mind: exra-constitutional does not
    mean unconstitutional.”

    – – – – – – – – – –

    I agree with you K-Bob, the 17th amendment MUST be repealed.

    I think it MUST be repealed FIRST and THEN when the state legislatures have control of their federal Senators again, THEN ‘We the People’ can repeal the 16th amendment and do something about it’s kissin’ cousins the Federal Reserve and the IRS. Then a ‘fair tax’ or a ‘flat tax’ will be moot and detritus disintegrating on the dung heap of history, as Pres. Reagan might say.

    Also, if the original birthers could debate and have the states ratify the first 10 amendments of the Constitution in one year, 1791, maybe ‘We the People’ of the 21st century can add amendments to repeal the 17th and the 16th and ALSO a term limits amendment for the House and Senate and DEFINITELY the SCOTUS, and send Chief Justice John ‘call it a tax’ Roberts home so he can write a book to try to justify why he caved to BHObama about ObamaCare.

    An Article V convention initiated by 34 state legislatures to amend the constitution is doable.


    • Good stuff Art!

      I think it’s interesting that the author of that piece makes a very important point about nullification being a “Natural” right.

      I also think he made some of the same points I made above, but with reference to Madison.

      However, I think it’s a leap of logic to assume therefore that nullification is somehow “in” the Constitution, or is somehow made part of the framework.

      The problem with “natural” rights is that there aren’t many. In nature, a creature may be said to have a “right to it’s existence”, because if that were not the case, no creatures would exist. However once you get beyond that, in the realm of pure nature, things devolve rather quickly from “rights” to “what you can get away with, if you have enough power.”

      Every creature has a “right” to NOT do what is expected of it or what it has been ordered to do. It’s just that in the vast majority of situations where the issue is significant, choosing NOT to do them leads to bad outcomes.

      Nullification is firmly in that part of nature. As I wrote in another comment, if every single state’s legislature passed a simple resolution declaring the ACA (Obamacare) to be unconstitutional, and therefore null and void, that would be the last word. It would be nullified. Only war could make it otherwise (but of course war destroys all frameworks in a society),

      That’s the power and beauty of that natural right. But it’s also it’s main weakness. It demands large majority participation in order to become that final word. If only a third of the states nullify Obamacare, it will live on, endlessly. Weakened, perhaps. But not gone.

      And as long as it exists in any form, it weakens the Constitution like metastasizing cancer.

      So Both Levin and the nullifiers are correct about many things. However it’s not an either/or situation, and people who keep trying to reduce it to one are the ones most in error.

      Importantly, the only way to change the framework is via Amendments. That is also undeniable. So while nullification can have major impact (and any successful nullification is good), it cannot last as long as a change to the framework.

      Nullification may well be necessary. But as a long-term strategy, it is not complete.

  • coffeeHouse1982

    Since our intelligence and wisdom develop along with our culture, we should recognize that our minds will most fully develop within dynamic, vibrant, free, and prosperous cultures where centralized control is minimized.

    • That’s an excellent point. The more totalitarianism, the more stupidity.

      • 1tootall

        I sent you a technical question and never heard from you. I sent it to the email address you posted. It’s a serious question about administrative procedure of an Article V procedure that concerns me.

        • Weird. I sent a reply. I’ll stick it as a reply here.

          Let me go find it.

        • Okay, here’s the reply I sent.

          That’s a very good question. You can
          always ask such things in these Liberty Amendments threads. It’s also a
          point I have not addressed yet.

          In my readings and in my
          one brief conversation with Rob Natelson, I learned that the state
          legislatures do have a voice, and it is not ignored lightly by
          Congress. In other words, if Mark Levin or Ted Cruz states that they
          want Congress to say, begin an investigation, or perhaps direct the
          Congressional Budget Office to prepare a report, well the leadership are
          free to ignore such requests, depending on what they might need from
          the requisitioner (under the old “quid pro quo”).

          However when a state legislature hands them a resolution,
          certain actions “shall” be taken, and are. For example, you can find
          all of the resolutions from states if you dig into the public record of
          Congress. I forget the website that has all of the Article V
          resolutions, but there have been hundreds of them. The problem is that
          of the hundreds, few have asked for the same thing. No particular
          “request” has been asked of congress by enough states to cause a call to
          Convention to occur.

          This is because the states have not gotten together in large
          enough groups to coordinate the language of the resolutions they send to

          Now, thanks to the folks at COS, the states have begun
          to do so, and the likelihood that they *will* be added together is
          nearly certain.

          Where that would leave us is with a Congress facing
          resolutions from 34 states, and the question of “will congress
          comply?”. I find it difficult to believe they could manage to avoid
          compliance without triggering major upheaval. The states would be
          forced to call the convention “automatically” as implied in the language
          of Article Five. It would provoke the kinds of problems (think “the
          Vietnam era protests,” greatly magnified) that not even Obama’s media
          could coverup or contain.

          So I have faith in the process. I’ll think about a better way to cover this in an upcoming article.

          Thanks for bringing it up!

          • 1tootall

            thanks. I have heard that response from those same parties. And in more normal times, I think those a fine responses. But we do NOT live in normal times. We have an attorney general who is destined to be the most racist person to have ever held that position. As it would fall to him to prosecute this case, I can’t imagine him seeing the constitution the way the rest of us see it. Then there is Harry Reid, who has the most disdain for our constitution of anyone in congress. Yet it more than likely would fall to him to “administer” the application from the 34 states. Does anyone out there doubt that he would drag his feet? Does anyone think he gives a rats behind about what they think of him in this situation?? And then finally, you have Nero. No one would expect HIM to follow an article of the constitution, especially if its going to point out his lawlessness. And who in the House or the Senate is going to press to fulfill the application from the Assembly of states??? I think this is where I start to worry. “shall” means nothing to these rogues, does it??? thanks again for responding.

            • I understand your concern. But failure to act here would pretty much mean war.

              The real, kinetic, bloody kind.

              Also I’d imagine states would hold the convention regardless, by “deeming” that Congress was not provided a say in the matter.