Nullification: Histree for Boneheads

I am getting truly scared by the way in which slick Astro Turf movements are created on complete nonsense, here, the Nullification baloney.

But I do believe in carrying the war into the enemy’s territory, as opposed to people like Chomsky. Not only does Noam Chomsky insist on preaching to the choir, with little effect, he even will, through his assistants like Mike Albert, eliminate online questioners who do not keep a respectful tongue in their heads: back in the old days of the Z Magazine Bulletin Board, I was asked to leave on Chomsky’s behalf by Albert, apparently because I’d suggested that it was wrong of Chomsky to blame Hegel for the Nazis.

In fact many liberals are guilty of dumbing down their message as well as preaching to the choir. In the matter of Chomsky, Mike Albert, who’d initially asked me to write for Z Magazine, was soon enough disenchanted because liberals have a proprietary interest in their fancy educations, and a pseudo-democratic belief that it’s somehow unfair to the Ordinary Slob to adequately communicate complexity, preserving their right to interpret for the rest of us as a priesthood. When liberals dumb down, and preach to the choir, they act their class interests in preserving a tenured monopoly, not as liberals.

I have been treated rather well in posting at Missouri Tenth, a site favoring “Nullification” (the outmoded doctrine that US states can ignore Federal law) but open to some discussion. However, they get suckered by political candidates who claim to be ex-Marines, but can’t seem to spell “The United States Marine Corps” correctly as would a real Marine.

This post contains a slick video that’s a lie from start to finish, and in response, I have submitted an essay that is under moderation. My essay isn’t easy reading nor is it meant to be, for I know from working in the real world, with computer programmers and shipping clerks who do master complexity more than they are credited for, that people can understand complex issues even Marbury v Madison. Or, they’d better in a free Republic being preyed upon by people who say that the ignorance of the ordinary person is skepticism.

To make Nullification anything but a dead letter, not only would you have to repeal the Fourteenth Amendment and its guarantee of “equal protection of the laws for all Persons” in the US, you would also have to amend the Constitution to change Article VI:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

“Any Thing in the Constitution” limits the scope of the Tenth amendment. The clause ending in the word “notwithstanding” means that no state can pass a law nullifying a Federal law. Instead, the state, along with the people of the several states, can bring a lawsuit through the Federal judicial system in hopes of finding the Federal law unconstitutional.

Thomas Jefferson (the author of the Kentucky resolution) was not consistent over his lifetime. In particular, his most famous declarations including ‘the tree of liberty must be refreshed from time to time with the blood of patriots” refer not to a LEGAL right of revolution that could NOT be codified in the Constitution (for that would be a ridiculous proviso reading something like “by the way, ignore this if you do not like it”). Instead, it refers to a Lockean and Hobbesian “natural right”, where the doctrine of “natural rights” recognizes that nothing prevents a man (or a state of the Union) from waging revolutionary war as long as he’s got the heart to take the consequences. This was echoed by Dr King in Letter from a Birmingham Jail.

James Madison (the author of the Virginia resolution) had said in the 1780s that the People of the United States (and not the States) had made the compact of the Constitution; in the Federalist Papers, Madison argued for a rather strong Federal government as a check and balance against the tyranny of the states. More consistent than Jefferson, Madison felt that John Adams’ Alien and Sedition Acts (meant to avoid pushing the US into alliance with revolutionary France) were unconstitutional.

At the time of the Virginia resolution (1798), the Supreme Court had not yet announced its role as a final arbiter of what is Constitutional and a court of appeal for both the states and the people against unjust and unconstitutional laws. The Supreme Court was to do so three years later in the case Marbury v Madison.

In that case, the incoming President was our friend Thomas Jefferson. His Secretary of State was none other than our friend Madison. One Marbury had been appointed a Justice of the Peace by the outgoing President, and naturally, Jefferson and Madison wanted to make their own appointments. Marbury’s appointment had not been countersigned by Adams or his Secretary. Marbury asked the Supreme Court to ORDER Madison to sign the appointment.

The Supreme Court found the 1789 Judiciary Act had given the SCOTUS itself the power to enforce the appointment by a writ of mandamus. Chief Justice John Marshall and the Court then found that this power VIOLATED the Constitution’s specification of what the judiciary can and cannot do, leaving the Supreme Court with no ability to get Marbury his position.

Marshall found that for the Supreme Court to try to control either Congress or the Executive by interference with their day to day operations would actually be “judicial activism”, not in the sloppy sense of today (in which “judicial activism” means “decisions white men do not like”) but in the strict sense.

Note the massive integrity here. John Marshall, the author of this decision, actually refused a power to interfere by mandamus because unlike some clown in Starbuck’s Marshall had understood the Constitution. He went on to declare that his Court had another power based on the Constitution’s logic, for the drafters knew that in actual practice, any Constitutional guarantee could become a dead letter under tyranny: they saw this in the “Declaration of Rights of Man and Citizen” in France, so readily suspended not only in the Terror but also in Haiti.

Marshall saw judicial review in this wording of the Constitution: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”.

Which means review of crimes including the passage of an unconstitutional law. Exceptions are allowed to be passed by the Congress but for Congress to make an exception as to judicial review of the Constitutionality of laws would make the Supreme Court an agent of Congress just as British courts were (and are) “lions under the throne” (in Blackstone’s phrase), merely interpreting Parliament’s will. This is clearly not “original intent” so Marshall reasoned that the court can judicially review. Interestingly, Rick Perry wants to “nullify” this power by Amendment, giving Congress the power to overturn a SCOTUS decision by a super-majority. Since the “original intent” of the Founders was (in the very organization of the Constitution, with three separate sections) a separation of powers, Perry’s proposed amendment would cancel much of the original Constitution.

But by LIMITING the court’s decision, Chief Justice Marshall in a supreme moment of truth had to use his power of judicial review, and say in this minor case that when there is a question as to the Constitutionality of a law, the states have no power to nullify it: this is the job of the SCOTUS: this is something a third arm of the Federal government must do, independent of possible interest in the outcome, Marshall didn’t give a damn about Marbury. He DID respect separation of powers and he knew that if he did not do so, the several states would start nullifying laws that their legislatures THOUGHT to be unconstitutional, with different views coming from different states.

Madison therefore wrote at a time when there was no clear avenue of redress for the People when the Federal government (here, the Federalist and pro-British party, dominated by men who hated France and admired Britain despite having made war against the latter) enacts unconstitutional laws. Madison was actually hoping that all or most other states would agree with him that the Alien and Sedition acts violated the First Amendment, and in an actual or by-correspondence virtual Convention, call the Federal Government to account. Marbury v Madison reaffirmed the Constitutional role of the Supreme Court and caused support for Nullification as an actual remedy to disappear UNTIL the increased value of slaves caused by the invention of the cotton gin made Nullification a live issue in 1832.

Now, it is true that in 1801, the Supreme Court not only was willing to hear all cases brought to it, its justices also endured hardship by “circuit riding” to different parts of the country. Today, it is impractical for the Court to hear every case, especially because as opposed to 1801 there’s a lot of clowns out there with one or several of fixed insane glares, silly tattoos in Chinese that do not mean what their wearer thinks they mean, goatees and beer bellies that haven’t done their homework. Nonetheless court cases continue to challenge the Bush administration’s actions during Iraq, and the resistance to those cases comes in some instances from the very same rich who also fund Astro Turf campaigns such as Nullification.

The trailer makes me sick. It is just not true that Turkey had “a strong central government” in 1915, the year of the Armenian genocide: in fact, Turkey was in the process of breaking up, its nominal Sultan being in debt to the West and its vilarets escaping his control; the genocide was an artifact of the growing discontent of the Young Turks, who were soldiers like Kemal Ataturk (the victor at Gallipoli) who saw that their country’s disorganization was producing a genocidal neglect.

Even Hitler’s Germany was united not by laws but by the Fuehrerprinzip, a law that subordinated all other laws to the will of Hitler, and the minutes of the Wannsee conference make it clear that far from being united, the mockery made of law by the Fuehrerprinzip meant that the SS, the remnants of the SA, the Abwehr and the Wehrmacht were all making up the law in conflict with each other: they in fact acted somewhat like the states would were Nullification to be a reality. They converged on “kill the Jews” only because this is what Hitler wanted, not because Nazi Germany had a centralized government.

The trailer becomes Satanically vile when it implies that the Federal government is in any way responsible for racial injustice, for historically, racial injustice in the USA has been the fault of STATE governments in the South, and LOCAL governments in the North. We already know that the Supreme Court failed to apply the Fourteenth Amendment to minorities from 1876 (the dawn of Jim Crow) to 1954, and this was because most of its appointees were Southern: not many Presidents were Southern in this period apart from President Wilson, but they needed to appoint men who’d get approved by a Congress that was dominated by southerners.

But there are NO Federal laws from this period that promulgated racial segregation. The Federal government instead failed to act in hopes that this would avoid another Civil War. But after 1954, President Eisenhower sent the 101st Airborne to enforce school INTEGRATION in Little Rock in the 1950s. President Kennedy did nothing to encourage segregation. President Johnson, albeit a Southerner, got the landmark Civil Rights Act of 1964 passed. President Nixon enforced school busing and Affirmative Action as did Carter. Presidents Reagan, Bush the Elder, and Clinton enforced the Constitution. Even George Bush never attempted to reverse racial integration.

Instead, Arizona has passed laws disenfranchising Mexican Americans who must as a practical matter carry picture ID EVEN IF they are natives of the USA, and EVEN IF their great great great great grandmother was Dona Luisa del Gran Something or Other, who owned vast acres of land as a Spanish subject until 1810, a Mexican citizen until 1849, and a proud US citizen thereafter. Wisconsin is attacking labor unions in violation of the Taft Hartley act, the Wagner act, and the First Amendment right of peaceable assembly. Chicago until the late 1950s enforced “restrictive covenants” in which whites had to agree not to rent or sell to blacks to get a mortgage.

JERK YOURSELVES AROUND, people. Stop watching slick videos on YouTube, stop drunkenly raving about the Constitution while getting picked up for DUI, and crack a book. Read the Constitution and read Marbury. The Founding Fathers, who were highly educated INTELLECTUALS, intended ordinary Americans to be as well read as they, and their spiritual godson was a hard working farmboy in New Salem, Illinois, that in that spirit paid a tinker for a barrel of books which happened to include Blackstone. Some of you boys HATE Lincoln! Why? Could it be because he didn’t sit on his fat ass in Starbuck’s and run his yap, but instead READ BOOKS by candle-light?

The founders intended that public education be widespread and nearly free: when they hoped for private interests to promote public education they did NOT mean for-profit charter schools, they meant not for profit schools run by charitable and religious organizations, and starting in the early nineteenth century their physical and spiritual descendants, men like John Quincy Adams. Charles Francis Adams and Ralph Waldo Emerson all realized that government funded public education was necessary in a free society, because people would have to understand the Constitution, and even difficult decisions like Marbury.

But this heritage has been obscured, by slave owners who made it a hanging offence to teach slaves to read, by religious zanies scared of evolution, and latter day morons who deny global warming. The real programme? The rich get the morons to vote their interests.

Photo: Monument to Robert Gould Shaw, 1837-1863, commanding officer of the 54th Massachusetts (“all-black”) regiment during the Civil War. Drawing: Edward G. Nilges, portrait of Edward J. Nilges, 1915-1945, Captain, United States Army, 442nd Regimental Combat Team (Nisei: Go For Broke): Quotation: Robert Lowell, For the Union Dead.


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