Don’t Listen to Jefferson

I don’t know who Paul Zummo is, but I know he wrote this. It’s the usual arguments against nullification, as if no replies to them existed.

He tries to claim, first, that James Madison, in the Virginia Resolutions of 1798, wasn’t calling for nullification; he was just saying the states had the right to get together to protest unconstitutional laws. Oh? Why bother to pass solemn resolutions urging that the states had a right that absolutely no one denied? When Madison tried to weasel out of his position three decades later, people asked the same thing: if that was all you meant, why even bother drafting such an inane resolution in the first place? And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time? Historian Kevin Gutzman dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89. Judge Abel Upshur made quick work of this view in An Exposition of the Virginia Resolutions of 1798, excerpted in my book.

Then Zummo says the Supremacy Clause defeats nullification. Only someone with a law degree could make such an elementary error, so I’m assuming that’s what I’m dealing with. Does the Supremacy Clause say, “This Constitution and laws of the United States which shall be made in pursuance thereof, along with any old laws we may choose to impose on you, shall be the supreme law of the land?” That’s not what my copy has.

The rest is just the same old conventional nonsense. Nullification would be “chaotic,” but a federal government that acts with a free hand — i.e., what we have now — is not chaotic. (Yes, letting the states govern themselves in areas where the federal government was never delegated authority would be just so chaotic — oh, wait, that very arrangement was the United States as originally envisioned!) Just wait for the Tenth Amendment to enforce itself. And yes, lawsuits in the federal government’s own courts are a winning strategy. Sure. Just pretend the 20th century never occurred.

For a basic primer, see not only my book but also my State Nullification page, as well as the relevant entries on my Articles and Audio/Video pages.

Adam

Another zombie has been taking down. They really seem to be coming out of the woodwork lately, Tom.
Adam

Er…”taken”.
Jonathan B.

Mr. Woods,

I left an response on Mr. Zummo’s blog post. I saved because I have to see that my comment has been approved. I wanted to post it here for your consideration. Before I do this I have one question. If we are the servant and government is the master, is not the prerogative of the states/people being party to the Constitution to have final say of what is or is not Constitutional in accordance with the Constitution?

Again, here is my comment on Mr. Zummo’s blog post for your consideration. I realize you may not be able to reply, but I would love to hear your thoughts on my thoughts concerning Mr. Zummo’s arguments.

I said: “If anything I would base my personal views on nullification on this.

1. That the Constitution of the United States said quite clearly that the Federal Government is one of limited powers. That all other rights belong with the States, or the People. To me this clearly implies that there are rights that the people retain, but obviously those rights are not delineated because they are potentially many. If I take this to be true, which I do, it is no great leap to assume that the States(People) have the right to review laws emanating from the Federal Government, and if they so choose to choose to refrain from enforcing those laws which are judged to be in contravention of the Constitution.

The argument here seems to be based on what James Madison, or Alexander Hamilton did or did not say, and how James Madison changed his mind years after the fact. Should we be ultimately considering the words of a man who changed his mind, or the document to which he worked to create? I would judge that much of what is being argued here is very conflicting, 1798 Madison, or 1835 Madison, so much so that we should consider not the mans words in certain periods, but the document he worked on, and to me it is no real stretch to consider the right of a sovereign state to judge those laws, especially those which might contravene their rights under the Constitution, and to refuse to enforce them, thereby making them NULL, VOID, and of NO EFFECT.”

JDB
Jonathan B.

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment, and not merely from the date of the decision so branding it… No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.
— 16 Am Jur 2d, Sec 177 late 2d, Sec 256