The Misrepresentation of Nullification with Respect to Slavery

One of the biggest criticisms of nullification is that it was asserted for the purpose of perpetuating slavery. This is a complete misrepresentation of history. The record is absolutely clear on this issue. Frustration of the federal Fugitive Slave Act was accomplished by nullification efforts all over the North, and because of the success of…

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Questioning Congress’s legislative authority to implement treaties

by Amanda Frost, SCOTUSblog

Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics:  What are the limits on Congress’s power to implement treaties?  Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority.  The decision is now canonical, and it has been widely accepted by most academics and followed by courts.  Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled.  His arguments are now front and center before the Court in Bond.

The facts of Bond are unusually colorful.  After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved.  Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory.  Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” 

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Time to Shift Gears

As the state legislative session in Salem, Orgeon comes to an end, it’s time to wrap up a few things – time to shift our focus to the very local -?- (Sheriffs, County Councils, City Councils), as opposed to the somewhat remote (Salem).  This means that for the next several months, the focus of activism in Oregon needs to be on the local.  This is not to say that we’re giving up on Salem, on the contrary, any local successes we have will feed into the momentum towards nullifications at the state level!

As kind of an end-of-session wrap up, I’d like to just recap what has been accomplished here in Oregon:

The Good

The Drone bill

HB2710 and SB71 both passed their respective houses of the legislature – unfortunately, they were not signed into law, but at the next full session, they will be more likely to pass.  These are bills that would extend the normal requirements for a mandatory warrant for the Federal Gov’s surveillance performed with a drone, as well as place controls upon federal drones in the state of Oregon.  Hopefully, in 2015, it will get further, but just having it passed in both houses shows that there is enough courage to defy the feds, as well as respect for privacy rights here in Oregon.

The Pot bill

HB3371 was introduced in the House, and even got through committee.  It was referred to revenue, and there it died.  However, I think the bill will be back and will have more success in 2015; this is, after all, Oregon- and if there is one thing ‘we’ don’t like being last in line for, it’s pot.  Washington has legalized it, and so has Colorado.  Please understand, I am not condoning pot use, I am simply backing this measure because it is not a federal issue.  Although I do not believe in prohibition, or government in control of consumption in any way (and of course I counsel my children against it), If there is to be prohibition laws, the legal way to accommodate these is at the state level (or through a constitutional amendment).  This bill would have legalized pot use, and treated it as it does alcohol (although it added an awful lot of layers of regulation).  I am still hoping for a pot bill that will not erect enormous amounts of government, but maybe we are not to that stage yet.

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It’s All About Liberty

The founding generation had many reasons for wanting to form a ‘more perfect union.’

Having fought a long bloody war for freedom, many recognized the advantages the union offered in terms of mutual defense. At the signing of the Declaration of Independence, Benjamin Franklin famously quipped, “We must all hang together, or assuredly we shall all hang separately.”

Along those same lines, many founders believed the states would fare better in international relations interacting with other world powers as a united entity. Even operating as a union, the Americans were at a significant power disadvantage when dealing with England, France, Spain and other European powers. Separately, they would have virtually no power.

Then there were the economic advantages of a union. In much the same way unity increased diplomatic power, it also increased the America’s economic power.

Alexander Hamilton even argued that a single general government would conserve American resources.

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Tenther Mayor Leading Kansas Back to Liberty

Last May, Herndon, Kansas, Mayor Kenny Chartier introduced an ordinance nullifying federal gun laws in his town. The legally binding ordinance prohibits “any agency or person in the employ of the City of Herndon from enforcing, providing material support for, or participating in any way in the enforcement of any act, law, treaty, order, rule or regulation of federal government regarding personal firearms, firearm accessories, or ammunition with the city limits.”

The city council unanimously adopted it.

Chartier took action after Kansas Gov. Brownback signed a state Second Amendment Protection Act into law last April. The state law nullifies a wide range of unconstitutional federal gun laws. Passage represented a huge step in protecting the right to keep and bear arms in Kansas, but Chartier understood local support would play a vital role in the ultimate success of the new Kansas law, and he did his part to add another layer of protection for citizens in his town.

And the Herndon mayor didn’t stop there.

Recently, Chatier sent an email to “every town, city and municipality in the state of Kansas that had an e-mail address,”urging them to pass similar Second Amendment Preservation ordinances supporting the state law.

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Sometimes the Media Does an OK job. Sometimes

NOTE: After being interviewed pretty extensively for an op-ed on nullification that ran in the Chicago Tribune, it was suggested to me by the author that if I wanted to write a rebuttal, the letters editor of the paper was certainly open to publishing my thoughts as a short letter.

The following is the text of that letter to the editors of the Chicago Tribune – published on August 21, 2013.

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The Chicago Tribune’s editorial, “Nullifying Washington,” did something unusual. It didn’t approach nullification as a wild, partisan movement of neo-confederates hell-bent on stopping Obama, or reinstating slavery.

As founder of the Tenth Amendment Center, considered the epicenter of the nullification movement, I’ve spoken to many reporters. They rarely discuss nullification like The Tribune did.

Fairly.

Here’s the standard rundown:

Nullification is pro-slavery.

Nullification is used only by the far-right. 

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Ignoring Constitutional Constraints

By Jon N. Hall, Originally published at the American Thinker

When the law no longer commands respect, one can pretty well write off a nation that pretends to be a constitutional republic.  How can The People respect the law when the government doesn’t? President Obama seems to regard the law as a mere inconvenience.

In his must-read August 5 article “The Front Man” at National Review, Kevin Williamson sums up our Harvard Law School president’s taste for lawlessness. “He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park.”

With a compliant Congress in his first two years, and a divided, gridlocked Congress thereafter, Mr. Obama has been able to “get away with” an awful lot. One of ways the president flouts the law is by not enforcing it, such as in his recent “decision” to delay enforcing the employer mandate of ObamaCare. Where does the president get off thinking he has the authority to refuse to enforce a law? The president doesn’t seem to understand his job.

Also, under Obama the executive branch just makes up law, a task generally reserved for the legislative branch. Williamson reports that “although the IRS has no statutory power to collect Affordable Care Act–related fines in states that have not voluntarily set up health-care exchanges, Obama’s managers there have announced that they will do so anyway.”

That announcement brings to mind a provision in the ACA concerning enforcement of the individual mandate: “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure. [Sec. 5000A(g)(2)(A), page 249]” With regard to this prohibition, it remains to be seen whether Obama’s minions at the IRS will announce “that they will do so anyway”?

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Preserving Liberty: What Actually Can be Done

On Friday, August 9th, I was a guest on the Pennsylvania Republican Liberty Caucus’s Speak Out program hosted by Lois Kaneshiki to chat about the Tenth Amendment Center, state nullification and Pennsylvania’s anti-NDAA bill (SB 999). We discussed the historical precedents for nullification, the Tenth Amendment Center’s legislative agenda, the constitutional problems with Sections 1021…

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We All Agree. Now Let’s Debate!

Over the weekend, CSPAN aired a discussion on nullification featuring Ian Millhiser of the progressive Center for American Progress and Ilya Shapiro of the libertarian CATO Institute.

Presumably, the discussion was journalistically balanced because it featured two men from polar opposite ends of the political spectrum. And while that might constitute “balance” in some sense of the word, it certainly wasn’t a balanced discussion on the principles of nullification, because everybody in the room opposed the idea.

Millhiser kicked things off by rightly pointing out that states gave up some sovereignty when they delegated specific powers to the general government, but went on to totally misrepresent nullification.

“Now you’re seeing some states who are basically saying they want to go back on that deal that they made when we became a union and say that the states should be allowed to overrule valid federal law that they don’t like.”

Shapiro essentially agreed, with the caveat that the feds can’t force states to enforce federal statutes.

“The Supreme Court has been quite clear on that. What states cannot do is stop federal officers from enforcing federal law. States can’t pass a law that, as Ian said, nullifies federal law.”

There you have it. These two guys agree. No nullification!

What a great “debate!”

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Vermont Law Nullifies Federal Hemp Ban

MONTPELIER, Vt. – In June, Vermont Gov. Peter Shumlin signed Senate Bill 157 (S157) into law legalizing hemp cultivation, nullifying the federal prohibition on growing the crop.

Industrial hemp falls under the Controlled Substance Act of 1970. It technically remains legal to grow industrial hemp, but farmers must obtain a permit from the DEA, a nearly impossible feat. The new state law opens the door for Vermont farmers to grow it anyway.

Hemp is an agricultural product which may be grown as a crop, produced, possessed, and commercially traded in Vermont pursuant to the provisions of this chapter. The cultivation of hemp shall be subject to and comply with the requirements of the accepted agricultural practices adopted under section 4810 of this title.

The new Vermont law requires hemp farmers to register with the state and allows for state inspections. It also stipulates the THC level (the active ingredient in hemp’s cousin, marijuana) must remain below .03 percent. The registration process will also include a disclosure statement letting the farmer know hemp production violates federal law – essentially a “buyer beware” provision.

“The reason we want to push for a change is that hemp is potentially a valuable crop,” Rep. Caroline Partridge, chairwoman of the Vermont House Committee on Agriculture and Forest Products told the Huffington Post. “People want to grow it. Hemp oil is a valuable product, and there’s so much of the hemp plant that can be used for very, very productive purposes.”

Industrial hemp has literally thousands of uses, including production of paper, clothing, cosmetics, construction materials, automobile parts and foods. It also has incredible potential as a biofuel.

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