Sunday, March 15, 2009

Who has the power to nullify?

Earlier this month, we had a discussion going at ThreeSources about who has the power to nullify. I got busy and forgot, and it scrolled off the main page anyway (making comments unpostable). So I will continue it here.

In the end, relying sole on the judiciary to nullify bad laws is counting on the wolf to rule against the fox on behalf of the hen.

To TG:
After the fact? Mr. Monroe was a prominent delegate to the Virginia State Ratification Convention. (And an anti-federalist to boot!) I do not how much more involved you could expect him to be in the formation of the young Republic's new government. (Certainly he did more than Jefferson, who was away in France at the time.)
"Prominent" in one state does not mean a significant role in writing the Constitution, or major activities like writing the Federalist papers. So you and JK give him far more weight, yet dismiss Jefferson as "radical" when Jefferson was as much of a founder of this country as anyone else you can name.
And to be more on point- Perry, I think you are missing the point. No one here has disputed a state's right to secession. Quite a few have disputed a state's right to nullification.
In fact I am not missing the point. I am talking precisely about nullification, not merely secession.
Let us start with the proper authority for the nullification of laws: the judiciary. It is with the judiciary the responsibility lies for the determination of the legality of congress’ edicts. You have stated that this concept began with Marbury vs. Madison, and that I am but a sheep for mindlessly accepting Marshall’s power-grabbing decision.
You state "the proper authority" as if it were established fact. Kindly refrain from begging your own question, ok?
This view is in ignorance of history.
Don't be such a twit as to assert this about someone else's decision in a polite discussion. Be forewarned: if you want a flamewar, then by God I'll give you one you won't believe.
The framers knew and argued for a judiciary with the powers recognized in Marbury.
Now this is an ignorant view, both of historical fact and of my own decision. I and others don't argue that the Marbury decision is wrong because the judiciary has power to nullify a law. It's wrong because it makes the judiciary the only authority to decide. You might as well let the fox appoint himself the watchman of the henhouse.

You're submitting yourself to nine imperfect humans, who have been known for such wonderful decisions as declaring people property, and in more recent years that we have no rights to our own bodies or even our own property. Wonderful of you to do that, and to drag me down with you.
Consider the words of Philadelphia Convention heavyweight James Wilson as he argued for the Constitution during the Pennsylvania Ratifying Convention:
So it's fine for you and JK to throw out various names who support your position, then say I can't bring up Jefferson because he was "radical"? How hypocritical of both of you.
And here is Alexander Hamilton, Philadelphia and New York Ratifying Convention delegate, writing as Publius, in Federalist No. 78:

“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power...
Hamilton was a statist who advocated one big United State, i.e. one big national government and no state governments. He was a hypocrite who talked big about freedom of the press, then later supported the abominable Sedition Act. So tell me why I should give a flying leap about anything that proto-tyrant said?

But I'll play your game for a minute and go by his own words. Logically speaking, Hamilton proved the very point he argued against. If a court can strike down a law, and we've seen for two centuries that it's done based on personal opinion, then the court is superior to the lawmaker. Think about it: if the British king could ignore whatever Parliament passed, didn't that say the king was superior to Parliament? Furthermore, he argued a strawman. Nobody was talking about lawmakers being the sole judge of whether laws are proper, but whether individual people, and thus their representatives at the state government level, can refuse to obey a law.
These are but two examples I have marked in books that I own. If you wish me to, I could scour the internet for more such quotations
Instead of trying to impress me by a bunch of quotes, how about reasoning for yourself?
The same cannot be said for the states. I find it funny that you fault a SCOTUS whose primary role is to interpret laws “because the Constitution does not explicitly say so”
You're again begging your own question.
and yet gladly hand that power over to the states, despite the fact that the Constitution is just as silent on this matter. Perhaps you own a special copy of the Constitution that contains an article detailing the manner by which states have the authority to interpret federal laws?
Nothing special, just the Ninth and Tenth Amendments. And more importantly, it's the concept of simple justice, specifically that you must resist evil by not obeying it. If a law is wrong, then it's the right and duty of people to disobey it. If a federal law is wrong, then a state government has every right and duty to disobey it, because its powers come from the consent of the governed.

Remember what Jefferson and Bastiat taught us: government's powers are derived from the consent of the government governed [edited the typo in my original draft], and therefore government cannot legitimately do anything more than what people can do themselves. A bad law therefore has no rightful authority over people, and a judiciary cannot make a decision that individual people (and any of their representatives) cannot make themselves. This was the whole basis of jury nullification: ordinary people could declare someone innocent because the law was wrong.

You operate under the presumption that whatever is the law, even in the Constitution, is proper and just. Would you have prosecuted and punished people who helped runaway slaves, though they were doing what was right by breaking the law?

"Just because words are written on paper and subjected to hocus-pocus beneath a soaring marble dome does not mean that these words are truly 'law,' or even that the government officials who wrote and voted for them want them to be taken literally." - Don Boudreaux

Or as a fictional fighter for freedom put it,
"I believe if they set aside their law as and when they wish, their law no longer has rightful authority over us. All they have over us, then, is tyranny, and I will not live under that yoke."

Anti-Federalist #15:
I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will shew — That there is no power above them that can controul their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.

1st. There is no power above them that can correct their errors or controul their decisions — The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits. — In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a dimunition of their salaries, for any error in judgement or want of capacity.

It is expressly declared by the constitution, — "That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office."

The only clause in the constitution which provides for the removal of the judges from office, is that which declares, that "the president, vice-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. — Errors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will shew, that the judges commited the error from wicked and corrupt motives.
If you want to keep quoting this person and whomever, fine, I can play the game until such time as I get bored. It gets us nowhere in the end. You will impress me as an intelligent person if you provide your own reasoning and your own words.
This brings up the central problem with Calhon-style nullification: despite Jefferson’s protests to the contrary, the Constitution was never a compact between the states. Rather, it was a document ratified by WE THE PEOPLE, and gained its authority not by the states of its Union, but by the people residing thereof. James Wilson detailed this excellently in his remarks to the Pennsylvania convention:
Oh really? Just who are these "WE THE PEOPLE"? I wasn't there. You weren't. Every president since Van Buren wasn't there.

Even at the state level, it was nine states imposing authority on four (think Ethan Allen and his beloved Vermont) who could have otherwise refused to join this new union. You'll probably argue it's moot, but what if they had refused? Would the other nine have taken up arms to force the four to submit?

You quote Wilson as saying: "Because a contract once entered between the governor and governed becomes obligatory, and cannot be altered without the consent of both parties."
Wilson spoke of a plain truth: the Constitution is not a compact between states, nor a compact between the states and the federal government. If either of these were true then Lincoln’s war would have been justified. He would be correct in stating that the Southern states had no right to break the compact they made with Union without the Union’s consent.
No, Wilson in fact argued a strawman. A bad law is a breach of contract, making it entirely void in favor of the damaged party.

The federal government infringed upon the rights of the southern states, which then had every right to cease their association. It's very simple.
All of this leaves us with an essential question: what happens when the judiciary errs? Who shall watch the watchmen? If we have decided that the states cannot do this, that leaves one other option- the citizens themselves.
Now you're arguing the logical fallacy of "either-or." You ignore that I'm not excluding anyone from nullifying a law.
I have one gripe with the way you phrase this concept. You stated, ”It is the right and duty of anyone, whether a private citizen or government official, to nullify a bad law.”
Why? If a law is bad, are you so weak-minded that you will submit yourself no matter what?
I have already discussed why the judiciary is the sole branch of government with the authority to nullify laws; I shall now discuss the implications of private citizens with the power of nullification.
Keep begging the question all you want. I will call you on the carpet every time.
The implications of this notion are – to be frank – dangerous. Indeed, I can think of no quicker way to erode the rule of law than this.
You have no idea what "the rule of law" even means. It is not the idiotic conservative notion that whatever the law is, it must be followed. It means that whatever the law is, it must be applied equally to all, otherwise it's the arbitrary rule of men.
In essence, your view of the Constitution is not all that different than those progressives championing their Living Constitution. In your case, no law is binding. Every citizen chooses which laws he does not think to be Constitutional (i.e. every law he dislikes), and ignores it.
Oh bullshit. I never said any of this, and to compare me to liberals is completely insulting.

Do me a huge favor and stop misrepresenting my arguments. Either that or take some damned reading comprehension lessons, because I won't tone down my rhetoric to suit your limited understanding.

I'm writing as I read, and I see now your general tone. Well, you want a war, you got it, bub.
Think about what you are advocating here. As with Living Constitution theory,
How about you think about the strawman you're creating here.
your would have the Constitution cease its role as the legal document governing the conduct of the federal government, it soon degenerating into the mere opinion of those reading it. The only practical difference between the two philosophies is that progressives concern themselves only with the opinion of the nine justices on the SCOTUS, while your viewpoint will have 300 million individual interpretations of what the Constitution should mean.
And which is worse, 299 million people who refuse to hand over other human beings because the government says they're property, or 1 million slaveowners having "Constitutional rights"?

Which is worse, 299 million people who decide for themselves that they will not sell off their property to the government and government officials' friends, or 1 million property developers who use the Supreme Court and all "due process" bullshit to force out rightful homeowners?

Clearly you believe it's the latter, in both cases. Just as long as everything is done by the book.
Does this destruction of nullification mean that citizens have no method of redress when the government begins to approach their rights? Of course not. There are two options on the table for any citizen who feels a law to be unjust and dangerous. (Hint: nullification is not one of them.)

The first is civil disobedience. Dr. Martin Luther King, in writing his “Letter from Birmingham Jail” outlined the proper way to conduct such a response to an unjust law:

“In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
First of all, King was a communist state-worshipper, so we must consider the source.

Second, King logically contradicted himself. By disobeying and breaking the law, he was in fact defying it.
The second response is rebellion. If rights are being trampled upon and the Constitution no longer serves to check the federal government, every man can work above the Constitution and exercise his right to protect himself from oppression. But make no mistake, this is not nullification. It is the renouncement of a corrupt government entirely.
You're contradicting yourself here. Like King, you don't see the plain logic that if you "renounce" or do not obey a law, you are in fact defying it. You may be accepting any penalty, but you are still not following it.

You say individuals cannot nullify a law, so how exactly do you suppose they can "exercise" their rights? Get beaten, jailed, fined, executed, etc., and offer no resistance?

What about Sharia law? It's being imposed in parts of the UK, and there's a movement to put it here. If you found yourself under it, would you not say that it doesn't apply to you? What then of your argument against nullification?
If you shoot a police officer for illegally entering your house, he loses both the ability to infringe on your privacy and the ability to protect you from criminals.
You have two fallacies going here. First, you presume a policeman has a right, which he does not have, to infringe on people's privacy. I, for one, do not give up my right to privacy so that a policeman can "protect me." In fact, courts have ruled for a Very Long Time that police have no responsibility to protect and assist, only apprehend criminals after the crime has been committed.

Second, a policeman who enters my house without consent is nothing but a common criminal, and can (and should) be dealt with accordingly.
So it is with government. You cannot elect to break laws that do not strike your fancy and yet hold true to the rest. You are abandoning the entire system. If and when such action is necessary, the Constitution (and all legal laws who use it as their foundation) no longer has any authority from you at all.
The Constitution never had any authority from me from the moment I was born, only such authority as I consent. Go read some Spooner. Those would be worthwhile collections to have in the library you brag about.
Thus, we have two choices when confronted with an unjust law. You can break it and accept the legal consequences for doing so, or you can withdraw your consent for a government that creates unjust laws all together.
So you're saying the colonists were wrong. After all, look what they did in reaction to the law. Why don't you go live in England, then?

To JK:
Thanks, tg, for beating me to a swift defense of James Monroe. Dude fought at Yorktown and served as a foreign emissary to Presidents Washington and Jefferson. Nobody wou;d seriously ascribe the intellectual heft of a Jefferson his direction, but nor would I disqualify his opinion.
Don't be a hypocrite. You disregard Jefferson, yet want someone's opinion counted more just because you like him while deeming Jefferson "radical." So we should consider Andrew Jackson's opinion as having as much weight, because he was involved in the American Revolution?
Our own "Era of Good Feelings" may be as short-lived as Monroe's, however. I take a third tack on nullification. I'm a big fan of Lysander Spooner and consider individual jury nullification as a foundation of liberty.

I certainly don't see it as reserved to the judicial branch, though in our history of tripartite government, they have been the most reliable (not unlike being the smartest of the Three Stooges).
There was hope for you until you said this. You're giving them credit because they're the lesser of the three evils, when in fact they've affirmed every bit of tyranny that the other two branches imposed on us.

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