Comments on: Judges? We Don’t Need No Stinking Judges

By: jeff2

jeff2 — Wed, 27 Jun 2012 14:01:01 +0000

@BillWalker “The question the author ignores is whether the Constitution permits what he advocates and it does not. It clearly states in the Constitution that it is supreme law and that all state officials are bound to its terms.”

Actually, the Constitution states that all laws “made in Pursuance” of the Constitution are supreme.   If the Constitution does not authorize the law in question, then, it is not supreme or binding on anyone.   And, yes, the Supreme Court has told us so from time to time.   Federal laws have been held to be Unconstitutional. Thus, they are NOT supreme and bind nobody.

What the Constitution does NOT say is that a federal law IS Constitutional until the Supreme Court says it is not. Thus, since you propose that federal laws can only be nullified by the US Supreme Court, show us where it says that in the Constitution.   Is there any provision that says, “All federal laws, whether or not made in pursuance of the Constitution, are the supreme law and binding on all states until the Supreme Court gets around to deciding that the ones made not in pursuance are not binding?”

I don’t see any provision like that, and my belief is that when a person claims power over others – i.e., “We, the feds, can make all these laws and bind you” – it seems the burden ought to be on the one claiming such power to prove the source of his power.   It simply is not there.

You state further, “It clearly states in the Tenth Amendment that those authorities assigned the states are the states and those assigned the federal government are the federal government. Hence, “nullification” of federal laws is a FEDERAL matter, not state.”

It does not say that in the 10th Amendment.   The Constitution does not “assign” any authority to the states.   Rather, it takes certain authorities away from the states and gives them to the feds.   The 10th Amendment says, everything that was not taken and given to the feds remains with the states.   That’s quite a big difference from the way you described it.

Finally, regarding a convention, most definitely, this is a more onerous avenue to seek relief.   If a law is Unconstitutional, is it binding?   Certainly not.   Even fed apologists know that the US Supreme Court has stricken federal laws from time to time, and we know for a fact that Unconstitutional laws are not binding.   If they are not binding, why do we need to form any groups and hope a super majority of states will change the Constitution?   This is bass-ackward.   A convention would be needed to make the bad law Constitutional. In fact, I don’t think nullification is necessary.   When a law is Unconstitutional, it is void.   The US SCt says this.   I believe it.

By: BillWalker

BillWalker — Wed, 27 Jun 2012 11:05:12 +0000

The author fails to acknowledge the obvious. First, that he is discussing nullification OF LAW. Hence the issue is about law. For his information, judges have had the “guts” to nullify laws federally since 1804 and in some states regarding state law before then. As to having “permission” it’s called the Constitution. The question the author ignores is whether the Constitution permits what he advocates and it does not. It clearly states in the Constitution that it is supreme law and that all state officials are bound to its terms. It clearly states in the Tenth Amendment that those authorities assigned the states are the states and those assigned the federal government are the federal government. Hence, “nullification” of federal laws is a FEDERAL matter, not state.

Besides the author fails to explain or even quote a portion of the Constitution, let alone a judge’s ruling (he just says “we don’t need stinking judges” presumably because he can’t find any other method or means to explain their inconvenience to his “theory”) that supports him. If even one judge had ever ruled in his favor he’d be all over it, meaning not even state judges have supported this. Most importantly however to his example of Kentucky is the fact the matter was finally settled in court by judges.

Now as to his comment regarding my pointing out nullification was applied for in 1832. First, I pointed that out because many in nullification think it is some new idea and it is not. Second, the fact it was applied for as I have said indicates those supporting it, who originated it, realized and acknowledge it is a state authority which must be granted to be legal and that means getting an amendment.

Now as to his assumption a convention is far off and the feds will not do it. The difference between nullification and a convention constitutionally is this: nullification puts those who advocate it against judges, the law, the Constitution and the feds giving them the advantage. A convention does the exact opposite. Unlike nullification that cannot be explained or justified by reference to a constitutional clause, Article V mandates a convention and thus the law, the judges etc. have to view refusal, that is to say, nullification by the feds as a violation of the law which it is.

He favors nullification yet says he doesn’t think a convention will work. So, in effect, he supports the federal government doing the very thing he himself supports, nullification of provisions of the Constitution. The only difference between him and the “stinking judges” and feds he talks about is not whether the Constitution is nullified but which parts. In reality therefore there is no difference between him and those he criticizes.

By: jeff2

jeff2 — Wed, 27 Jun 2012 04:46:36 +0000

I agree. To put the issue more squarely to your friend, you could ask, using the Sheriff Mack case which held part of the Brady Law Unconstitutional, “What happens when a state nullifies a federal statute that the feds later come to declare was Unconstitutional to begin with?”

The SCt obviously said the statute is void and not law. This obviously means the states were not required to comply with it. Does this not at least implicitly equate to a recognition that nullification is valid – at least when it is done rightly?