- The revival of long-dormant proposals for state legislatures
to adopt acts to nullify federal acts that exceed their constitutional
authority has gotten the attention of some who try to discredit the proposals
by mischaracterizing them. The critics seize on some of the rally rhetoric
that necessarily simplifies and may seem to promise too much too soon and
too easily, but serious proponents of this path of reform know that the
passage of state legislation is only the first step in a long process of
organized nonviolent civic disobedience that differs from past movements
that have used such methods in that state government is involved in a leading
role. It is state-led noncooperation.
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- In law "nullification" is not repeal or rescission
of statutes or executive or judicial actions. It is the result of a sustained,
widespread refusal to cooperate with them, until those attempting to enforce
the actions are confronted with the unpalatable choice of either backing
down or resorting to murderous brutality.
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- It is similar to what happens when a federal appeals
court finds a congressional statute, or an executive action, or the decision
of a lower court, to be unconstitutional. It has no power to order the
statute struck from the Statutes at Large, or to order executive officials
to stop enforcing it, or even to force lower courts from enforcing it.
It's only power is to say that if a similar case comes before that court
again, it will refuse to cooperate in enforcing the action. But that is
likely to be sufficient, because ultimately federal executives need the
support of federal courts to enable them to enforce congressional statutes.
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- State legislatures are in a somewhat weaker position,
in that federal enforcers don't need to submit their cases to state bodies
to get them enforced. In the early decades of this country federal officials
did need the cooperation and support of state and local officials to carry
out federal statutes, but they no longer do in the same way or to the same
degree. That was why the Kentucky Resolutions of 1798 and 1799, authored
by Thomas Jefferson, and the Virginia Resolutions of 1798, and the Virginia
Report of 1800, authored by James Madison, represented such serious challenges
to central government authority. Neither Jefferson nor Madison pretended
such state resolutions had the legal effect of repeal or rescission, but
they understood very well that sustained, widespread noncooperation with
federal officials would render them impotent as a practical matter.
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- This is not a prelude to secession. No one is proposing
the governor send the State Guard to surround Fort Hood and begin bombarding
it. Now, of course, if federal agents engaged in another murderous assault
on innocent Texans the way they did near Waco from February 28 through
April 19, 1993, that could be another matter. We can hope that won't happen
again.
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- Now admittedly it is not a good idea to try to adopt
state legislation to nullify congressional legislation that hasn't been
adopted yet, may never be, or may take an entirely different form by the
time it is. A state legislature that only meets 140 days every two years
is ill-prepared to respond in a timely manner to a flood of unconstitutional
congressional legislation, or to executive or judicial actions that may
be similarly unconstitutional. We need to establish an institution that
can respond rapidly to a variety of usurpations, most of which may not
be foreseeable.
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- I have proposed to legislators of this and several other
states a measure that would address this problem, with the following components:
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- 1. Commission. Establish a "Federal Action Review
Commission" Ñü a special commission with grand jury powers
to meet continuously with rotating membership drawn from a pool of legal
historians and constitutional scholars, appointed by the Governor, Attorney
General, or Legislative Council; empowered to review the constitutionality
of congressional legislation, or federal regulations or decisions, and
if it finds such legislation, regulations, or decisions to be unconstitutional,
to issue an edict, with the force of law, requiring that no state or local
officials, employees, or contractors cooperate in the enforcement of it,
and urging state citizens to refuse to cooperate. This Commission would
be established by an amendment to the Texas Constitution.
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- 2. Structure and procedure. The Commission shall consist
of 23 members, who shall serve for staggered terms of 4-8 months, drawn
at random from a pool of at least 230 constitutional scholars and legal
historians, who shall meet for at least one hour once a week, with a quorum
of 16, and a vote of 12 required to issue an edict, based on a presumption
of nonauthority of federal officials and agents and requiring strict proof
of constitutionality from deductive logic and historical evidence. It shall
be open to direct complaints of the unconstitutionality of federal actions
from any citizen. It shall have the power to subpoena witnesses, and its
deliberations shall be secret, except that it may disclose anything in
its presentments. It may authorize criminal prosecution by issuing an indictment
to any person, not necessarily a lawyer, upon a finding that the court
cited has jurisdiction and that evidence of guilt is sufficient for trial.
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- 3. Penalties. State and local officials, employees, and
contractors shall be duly notified in writing of such edicts within ten
days and shall have twenty days to comply or be subject to termination
after one written warning and a second failure to refuse to cooperate with
federal officials or agents.
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- 4. Funding. Establish a state fund to pay for legal and
financial support of state citizens and officials who refuse to cooperate
with unconstitutional federal statutes, regulations, or decisions, with
the intention to obtain judicial decisions that support the unconstitutionality
of the federal actions.
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- "Official" nullification is already being used,
and has a long history of use. For example, Congress passed the RealID
Act mandating states issue state identification to federal standards, with
centralized management of identification data that would allow nameless
bureaucrats to decide who is an American citizen, and who may do business
or make a living. Many states, urged by public resistance, have refused
to comply or fund the federal act, which has become a dead letter.
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- An increasing number of states have adopted measures
legalizing the sale, possession, and use of marijuana for medical purposes
with a physician's prescription, and after threatening physicians with
prosecution of the congressional statutes still on the books, the present
administration has quietly said it will no longer seek to prosecute such
use or the physicians who authorize it. Without actually declaring the
federal statutes unconstitutional, this defiance has raised the consciousness
of the public so that it is now difficult to empanel a jury in those states
that will not contain some jurors who will hold out for acquittal.
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- Governor Perry engaged in an act of nullification by
refusing federal funds for public education that would weaken Texas standards,
the model for the entire country, especially in the critical subjects of
American History and American Government. The State Board of Education
currently has before it proposals to strengthen those subjects even further,
which would be disabled by the federal program.
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- There has also been "unofficial" nullification,
mostly by juries refusing to convict for offenses like violations of alcohol
prohibition, or to return runaway slaves to their masters. Ultimately it
would come down to juries, whose cooperation is critical in federal court
cases. It can become nearly impossible to empanel a federal jury without
including at least a few who, perhaps inspired by state leaders, refuse
to go along with the opinion of the federal judge as to what is the law,
and decide for themselves that the charge is unconstitutional and that
their duty is to acquit.
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- Many who took an oath to defend the Constitution despair
of getting relief for their complaints in Congress, the Executive Branch,
or the federal courts. Perhaps, when state citizens refuse to cooperate,
the central government will get the message.
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- -Jon
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- Constitution Society 2900 W Anderson Ln C-200-322, Austin,
TX 78757
- 512/299-5001 www.constitution.org jon.roland@constitution.org
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