Nullification Deniers: Confusing Emotion with Logic

Davis Merritt’s article Hidden price of nullification: forfeited rights is another example of fantasy instead of reality.

Many in the media keep repeating an inaccurate narrative about nullification.  Are they truly that ignorant of history, or they have been forced fed so much that it has evolved into pseudo reality?

Merritt spends the first three paragraphs of his article recounting the dark history of the American South during the 1950s and 1960s.  He pushes the emotional gas peddle harder (instead of the logical brake) when bringing the nostalgia of last weeks remembrance of Dr. Martin Luther King’s classic speech.  He writes:

The 50-year anniversary last week of the Rev. Martin Luther King Jr.’s “I Have a Dream” speech also marked a half-century since the idea of state nullification of federal laws had any credence at all. But the irony of that historical juxtaposition is lost on a new generation of nullification enthusiasts in state legislatures.

Interesting that Merritt conveniently forgets one of Dr. King’s most famous quotes, “One has a moral responsibility to disobey unjust laws.”  Merritt apparently has never read Thomas Jefferson who also wrote, “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”

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The Mainstream Media Sham

From Tenther Radio, Episode 115

Can you imagine a reporter doing a story on professional basketball in the United States and not contacting, or even referencing, the NBA?

How about a story on space flight without any attempt to talk to the folks over at NASA?

Or an article about online auctions that fails to reference eBay?

You wouldn’t have a whole lot of faith in the credibility of the report, would you?

Well, this happens all the time when it comes to nullification. It seems like at least once a week, we run across a story on the subject that doesn’t even reference the Tenth Amendment Center. Fox News was the latest mainstream media organization to spit out an article about nullification full of misinformation and assumptions that we could have easily cleared up. And we know they never tried to contact us about the story, because, well…we’re right here! Easy to find! Just tap a few keystrokes into the little Google search box and there we are! The phone never rang, and an email from the folks at Fox was absent from our mailbox.

I don’t mean to sound like sour grapes, but the Tenth Amendment Center has led the nullification effort for the last seven-plus years. We’ve written model legislation, worked closely with state lawmakers across the United States to get nullification bills passed, and we’ve written hundreds, if not thousands, of article on the subject.

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Fox News Misses the Mark on Nullification

Picture the scene.

It’s October 1787 and three men take on the herculean task of getting the New York farmers on board with the Constitution before the ratification debates get started. But these guys are up for the task. I mean, we’re talking about James Madison, John Jay and Alexander Hamilton for goodness sake.

What’s really hard to imagine, in light of our world today, is that three different New York newspapers are anticipating the writings. They can’t wait to publish them!!!

Fast-forward to 2013. Fox News finally puts out a story about “nullification.”  But the bastion of “conservative” news is missing the mark. The Tenth Amendment Center has been a the forefront of liberty through nullification for over seven years now. Apparently, Fox News can’t be bothered with liberty.

Too radical?

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Establishment Hypocrisy from the New York Times

Earlier this year, the Missouri legislature passed a Second Amendment Preservation Act that would nullify unconstitutional federal actions violating the right to keep and bear arms. Gov. Nixon vetoed it. The legislature will have a chance to override in September.

On Saturday, the New York Times came out with an editorial using the Missouri bill as a springboard to ridicule those who think the federal government should not willy-nilly violate the Second Amendment.

As a measure of the gun culture’s dangerous sway over statehouse politicians, it is hard to top the pending proposal in Missouri that would pronounce all federal gun safety laws null and void in the state and allow the arrest of federal agents who try to enforce them.

In typical arrogant fashion, the Times editorial board proceeds as if no rational argument for the Missouri nullification bill exists so they can get right to painting supporters as ignorant, redneck, extremist, nutjobs. The board uses words like “bizarre” and “laughable” to describe efforts to stop the federal government from ignoring the constitutional limitations on its power. I suppose that makes James Madison “bizarre” and “laughable” for penning Federalist 46.

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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.

*******

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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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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ThinkProgress Getting on the N-Train?

Leftists often attack nullification.

Sometimes, it seems that MSNBC makes a living at it. However, there is some hope that many who lean left are actually starting to embrace the concept, although still loath to use the word. For example, the ACLU has created a toolkit for local and state resolutions against the NDAA.

So, could that venerable far-left organization known as ThinkProgress ever climb aboard the nullification train? Not likely, eh?

BUT WAIT!

In their article, Berkley to Federal Prosecutors: Don’t Mess With Our Medical Marijuana Program, they reported positively on Berkley’s attempts to stop the feds from future seizures of property belonging to the cities’ medical marijuana dispensaries.

“The city is arguing that the federal government is improperly interfering with the city’s own financial and regulatory interests, as well as its residents’ medical interests.”

The article also lists Oakland as another California city taking similar measures. Of course, they don’t use the “n” word: nullification.

Some of the comments left by readers of ThinkProgress add an interesting railroad spike to this story – hardly a crowd that can be called ultra right-winged nutjobs.

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Setting the Record Straight on The Daily Show’s Nullification Bashing

On July 31, the Daily Show did a little piece ridiculing nullification. The sketch centered around a Second Amendment Preservation Act passed by the Kentucky Senate during the last legislative session. (The bill died in the House.) After they make the bill’s sponsor look foolish, they bring in a nullification opponent  to make the principle itself look foolish. LaRue County Judge/Executive Tommy Turner serves that role. I should note that in Kentucky, a judge/executive serves as the chief executive of a county – essentially the mayor of the county. They are not judges, and the job requires no legal training.

The following is a letter I sent to Judge/Executive Turner

Dear Judge Executive Turner,

I saw your little spot on the Daily Show.

I admit it was mildly amusing. A total distortion of nullification, but amusing nonetheless.

I know it’s supposed to be comedy, but the piece was clearly intended to make a political point. Little does the Daily crew realize – the joke is on them.

Did you know that the “nullification” bill passed by the Kentucky Senate was absolutely constitutional  – even according to Supreme Court opinion? The bill was a simple noncompliance bill that would have prohibited state cooperation with any federal attempts to enforce acts violating the Second Amendment. It made no provision for state interference with federal actions.

There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states (or their political subdivisions, local governments) to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.

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Tom Merchant Fails to Make the Sale

Tom Merchant, for the Sentinel Tribune, wrote an article called, “Between the Lines,” focusing on the recent NSA surveillance revelations. In his effort to defend the NSA’s actions, he listed a few of the amendments from the Bill of Rights and argues that many are now antiquated.

He made cases against the Second and Third Amendments to justify his position. There are elements of his arguments that are clearly debatable.

This kind of thinking is clearly dangerous. If we drop the “original intent” of the Constitution to keep up with “the signs of the times,” then none of our rights are truly protected. And if the Constitution needs to be updated, there is something called the Amendment Process.

Merchant writes:

NSA is not actually listening to peoples conversations, but if the government wants to know where I am going out to eat and other mundane things, I really don’t care. It is probably unfortunate that we must give up some of our privacy, but that is just a sign of the times

I really don’t see anything in the amendments that relates to personal privacy, other than the Fourth Amendment preventing the government from unreasonable search and seizure.

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