MCViewPoint

Opinion from a Libertarian ViewPoint

Posts Tagged ‘Nullification’

Nullification Works: Republicans Look to Legalize Marijuana as States Ignore Federal Drug War | Mises Wire

Posted by M. C. on November 17, 2021

None of this has “nullified” federal law in the strict sense. The federal prohibition still exists on the books, and the federal government can—and does—still selectively enforce these laws under a variety of circumstances. But political reality and legal reality are two different things and the fact is that the de facto state nullification taking place since 2012 has put the federal government back on its heels.

https://mises.org/wire/nullification-works-republicans-look-legalize-marijuana-states-ignore-federal-drug-war

Ryan McMaken

Both Bloomberg and the cannabis industry publication Marijuana Moment now report that Republican congresswoman Nancy Mace is preparing to introduce new legislation ending the federal prohibition on marijuana.

According to Bloomberg:

A Republican bill to legalize marijuana at the federal level in the U.S., expected to be unveiled soon, would have a lighter regulatory touch [and] lower taxes…. “It would largely delegate regulatory powers to the existing state governments,” said Brady Cobb, a board member of Captor Capital, an Irvine, California-based operator of dispensaries, who saw the draft…. Mace’s proposed excise tax is 3.75%…. Those who’ve seen Mace’s draft say it would regulate cannabis more like alcohol.

Mace’s proposal is the latest effort to finally and formally kill federal prohibition following ongoing efforts to bring federal law into the real world, where nearly 45 percent of Americans now live in states where marijuana has been legalized.

Over the past decade, as more and more states have legalized marijuana, it has become increasingly clear that state nullification of federal marijuana prohibition is winning. Were it not for more than a dozen US states refusing to enforce federal marijuana laws, there is no way that we’d now be seeing realistic bipartisan efforts to overturn the federal ban. This has only happened because state governments have refused to cooperate.

While opponents of this strategy claimed that the federal government would never tolerate states ignoring federal drug laws, the opposite has happened. Rather than renew federal efforts to crack down on states that don’t play along with the cannabis drug war, the federal government has instead retreated and grown increasingly permissive, moving closer toward formal legalization.

There’s an important lesson here: true reform of federal laws may often have to begin at the state level to make any difference or create any actual change. “Electing the right people” in Washington, DC, is a pipe dream. State-level nullification is the far more pragmatic and effective solution.

Slow Progress on Ending the Federal Prohibition

If and when the federal prohibition is finally overturned, it will mark the end of an expensive and failed fifty-year experiment. 

The federal intervention in the realm of recreational drugs did not begin until the twentieth century. A comprehensive federal prohibition was not a reality until the Controlled Substances Act of 1970. Historically, of course, it was widely accepted—correctly—that the federal government possessed no powers to prohibit the personal use of certain substances. This is why alcohol prohibition required a constitutional amendment. The Tenth Amendment makes it clear federal efforts to “control substances” like marijuana are not lawful.

But, of course, the text of the Bill of Rights has never prevented the federal government from doing what it wants so long as it can hoodwink enough of the population into believing federal meddling is a matter of “public health” or “public safety.”

States Begin to Nullify

Although numerous states had already begun to chip away at the federal prohibition with “medical marijuana” laws, a far larger change came in 2012 when Colorado and Washington voters adopted new measures legalizing possession and sale of marijuana for most adults.

This was followed two years later by similar changes in Alaska, Oregon, and Washington, DC. In 2020, Montana, Arizona, and New Jersey all legalized the recreational use of marijuana, bringing the total number of states to eighteen. (Another thirteen states have decriminalized marijuana—a measure also in conflict with federal law.)

In total, more than 143 million Americans—out of 330 million—now live in states with legal recreational marijuana.

None of this has “nullified” federal law in the strict sense. The federal prohibition still exists on the books, and the federal government can—and does—still selectively enforce these laws under a variety of circumstances. But political reality and legal reality are two different things and the fact is that the de facto state nullification taking place since 2012 has put the federal government back on its heels.

The Federal Government Retreats

Indeed, it was not long after Colorado and Washington legalized marijuana that federal representatives of both these states—both Republicans and Democrats—began pursuing ways to ensure federal officials did not attempt to renew the federal war on drugs within these states’ borders. Perhaps the best example is the STATES Act, designed “to ensure that each State has the right to determine for itself the best approach to marijuana within its borders.”

Efforts by drug war enthusiasts—like Donald Trump’s attorney general Jeff Sessions—ultimately failed after federal efforts to crack down on states met with furious opposition from Congress and state-level officials.

In 2021, the issue of enforcing federal marijuana prohibitions within these states has all but disappeared. Yet lingering federal financial regulations remain an obstacle to the normalization of the cannabis industries in these states. But it now appears it is only a matter of time until drug war zealots like Mitch McConnell will be unable to block reform in Congress.

The Failure of “Just Change the Law”

Perhaps most importantly, the ongoing success of the cannabis nullification effort has illustrated the impotence of those who repeatedly chant slogans about “federal supremacy” and insist, “If you don’t like the law, change it.” Even among those who claim to oppose the drug war, one can often hear these “strategies” which consistently amount to nothing.

We’ve all heard plenty from these defenders of thestatus quo for decades, and we’ve heard it in many different contexts—perhaps most importantly in the area of private gun ownership. “Why, you can’t refuse to enforce federal law,” they’ll say. Federal law is the “the law of the land,” they angrily insist while declaring “federal supremacy means states can’t just do their own thing.” Contained within these claims, of course, is the notion that the federal government can do whatever it wants. The fact that federal intervention in drug use and gun possession are in clear violation of the Bill of Rights means nothing to these people, who simply buckle to federal power and say nothing can be done but to “elect the right people.”

In some cases, these central government–loving “legal experts” will actively try to undermine federalism and the Bill of Rights. In the case of marijuana legalization, for instance, Republican attorneys general sued the State of Colorado in an effort to get the federal courts to force federal prohibitions on states that had nullified. Fortunately, the suits were thrown out.

On the other hand, more and more decentralist state officials are starting to figure out that meekly begging Washington, DC, to repeal some of its own powers will probably go nowhere. Rather, refusing to do Washington’s bidding is likely to be a more promising strategy. In Missouri, for example, the Second Amendment Protection Act is designed to “invalidate all federal gun control laws and prohibits state and local cooperation with enforcement of those laws.”

Whether or not this strategy in the area of gun ownership can meet the same level of success as the marijuana effort will depend in part on the public’s ideology and the willingness of local officials to refuse to buy into the old federal “law of the land” canard. But this localist strategy is unlikely to fail any worse than fifty years of doing nothing in Washington.  Author:

Contact Ryan McMaken

Ryan McMaken is a senior editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first.

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

Nullification | Tenth Amendment Center

Posted by M. C. on September 24, 2021

Don’t Comply…Nullify!

https://tenthamendmentcenter.com/nullification-overview/

Thomas Jefferson and James Madison first formalized the principles of nullification in the Kentucky and Virginia Resolutions of 1798. While Jefferson called it “the rightful remedy” to federal overreach, Madison put it a different way, saying a state is “duty bound” to interpose “to arrest the progress of the evil.” Jefferson and Madison were the first to propose nullification specifically, but they didn’t create the idea. In fact, the strategies and principles date back to before the American Revolution. Colonists used nullification strategies to force Parliament to repeal the Stamp Act. And during the Virginia ratifying convention, George Nicholas said that if Congress were to exercise any power not expressly granted to it, the state of Virginia would be “exonerated from it,” implying that the state would have the authority to ignore or block unconstitutional acts. Nullification is a fundamental part of the American political system. But what exactly does it mean? There are two definitions. One is legal. When a court strikes down a law, it literally wipes it off the books. But there is also a practical definition – to make something of no value or consequence. When we talk about nullification happening today, we generally mean it in the practical sense – to end the practical effect of a federal act. Here is a succinct definition of nullification as we apply it: Any act or set of acts which has as its result a particular law being rendered legally null and void, or unenforceable in practice. Madison gave us a blueprint on how to do this in Federalist #46. He suggested four steps to take on counteract and stop federal programs – whether “warrantable” or “unwarrantable,” the most significant being a “refusal to cooperate with officers of the Union.” The federal government involves itself in almost every aspect of life, but depends on state assistance to do almost everything. If states refuse to help, it becomes nearly impossible for the feds to enforce their laws or implement their programs. We can use this strategy to undermine and nullify all kinds of federal acts in practice – from warrantless spying, to gun control, to plant prohibition and more.

Be seeing you

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

Judicial Review? No. Nullification | Abbeville Institute

Posted by M. C. on February 24, 2021

https://www.abbevilleinstitute.org/blog/judicial-review-no-nullification/

By Earl Starbuck

“Acts of congress, to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity.” -St. George Tucker

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming instrumentality of the Supreme Court.” -Thomas Jefferson

As a pro-life Jeffersonian, I am constantly frustrated by the endless line of pro-life activists who talk about the Supreme Court overturning Roe v. Wade.[1] There are multiple reasons this irks me. For one thing, the Supreme Court will never overturn Roe because its members are dedicated to the preservation of precedent. Add on top of that the absurd kangaroo courts that Senate confirmation hearings have become, with their character assassinations and incessant prattling about the vital importance of Roe, and it’s clear that the potential Justices are being reminded not to tread on that particular landmine if they wish to be confirmed. The brutal character assassination of Robert Bork is ample evidence of this, as are the farcical witch-hunts against Clarence Thomas and Brett Kavanaugh.

My other objections to this pro-life reliance on Federal Courts are constitutional and practical. To begin with, accepting the Incorporation Doctrine (the legal justification for Roe and its descendants) means accepting the idea that the 14th Amendment incorporates the Bill of Rights against the State governments, including the implied right to privacy and the subsequent right to obtain an abortion. The legal and historical problem with this is that the Bill of Rights was never intended by the Founding Fathers to be applied to the States.[2] There were two primary arguments against the Bill of Rights. The first of these (advanced by men like Roger Sherman, Hugh Williamson, and Theophilus Parsons) was that, since the States already had their declarations/bills of Rights, and since Congress had been given no authority to infringe upon them, a Federal Bill of Rights would be redundant and unnecessary, and might even undermine the sovereignty and authority of the States. 

The second reason for objecting to the Bill of Rights had to do with its length and scope. Enumerating all of the rights protected would be impossible, and therefore would result in an implied surrender of whichever rights they forgot to explicitly protect in the Bill of Rights. Moreover, why say that the government can’t do something (like restrict freedom of speech or the press) if the government hasn’t been granted that power to begin with? (James Wilson and Alexander Hamilton presented these arguments; Hamilton’s is easily found in Federalist Essay #84).

See the rest here

About Earl Starbuck

A native of East Tennessee, Jake Starbuck is an independent historian and a descendant of soldiers on both sides of The Late Unpleasantness and of Governor John Sevier. His father, who was a member of the Sons of Confederate Veterans, taught him to love history and the South. Starbuck holds a BA in History and Political Science from Carson-Newman University and an MA in History from Liberty University. He has no connection to the coffee company. More from Earl Starbuck

Be seeing you

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

How to Avoid Civil War: Decentralization, Nullification, Secession

Posted by M. C. on December 5, 2019

The FBI and CIA will go to even greater lengths to ensure the voters are never again “allowed” to elect anyone who doesn’t receive the explicit imprimatur of the American intelligence “community.”

It is true, however, that if the idea of a legally, culturally, and politically unified United States wins the day, Americans may be looking toward a future of ever greater political repression marked by increasingly common episodes of bloodshed. This is simply the logical outcome of any system where it is assumed the ruling party has a right and a duty to force the ways of the one group upon another. That is the endgame of a unified America.

https://mises.org/wire/how-avoid-civil-war-decentralization-nullification-secession?utm_source=Mises+Institute+Subscriptions&utm_campaign=fe934d9513-EMAIL_CAMPAIGN_9_21_2018_9_59_COPY_01&utm_medium=email&utm_term=0_8b52b2e1c0-fe934d9513-228343965

It’s becoming more and more apparent that the United States will not be going back to “business as usual” after Donald Trump leaves office, and it is easy to imagine that the anti-Trump parties will use their return to power as an opportunity to settle scores against the hated rubes and “deplorables” who dared attempt to oppose their betters in Washington, DC, California, and New York.

This ongoing conflict may manifest itself in the culture war through further attacks on people who take religious faith seriously, and on those who hold any social views unpopular among degreed people from major urban centers. The First Amendment will be imperiled like never before with both religious freedom and freedom of speech regarded as vehicles of “hate.” Certainly, the Second Amendment will hang by a thread.

But even more dangerous will be the deep state’s return to a vaunted position of enjoying a near-total absence of opposition from elected officials in the civilian government. The FBI and CIA will go to even greater lengths to ensure the voters are never again “allowed” to elect anyone who doesn’t receive the explicit imprimatur of the American intelligence “community.” The Fourth Amendment will be banished so that the NSA and its friends can spy on every American with impunity. The FBI and CIA will more freely combine the use of surveillance and media leaks to destroy adversaries.

Anyone who objects to the deep state’s wars on either Americans or on foreigners will be denounced as stooges of foreign powers.

These scenarios may seem overly dramatic, but the extremity of the situation is suggested by the fact that Trump — who is only a very mild opponent of the status quo — has received such hysterical opposition. After all, Trump has not dismantled the welfare state. He has not slashed — or even failed to increase — the military budget. His fights with the deep state are largely based on political issues, and not on major policy disagreements. Trump, for example, sides with the surveillance state on matters such as the prosecution of Edward Snowden.

His sins lie merely in his lack of enthusiasm for the center-left’s current drive toward ever more vicious identity politics. And, more importantly, he has been insufficiently gung ho about starting more wars, expanding NATO, and generally pushing the Russians toward World War III.

For even these minor deviations, we are told, he must be destroyed.

So, we can venture a guess as to what the agenda will look like once Trump is out of the way. It looks to be neither mild nor measured.

And then what?

In that situation, half the country — much of it from the half that calls itself “Red-State America” may regard itself as conquered, powerless, and unheard.

That’s a recipe for civil war.

The Need for Separation

But how can we take steps now to minimize this polarization the damage it is likely to cause?

The answer lies in greater decentralization and local autonomy. But as long as most Americans labor under the authoritarian notion that the United States is “one nation, indivisible” there will be no answer to the problem of one powerful region (or party) wielding unchallenged power over a minority.

Many conservatives naïvely claim that the Constitution and the “rule of law” will protect minorities in this situation. But their theories only hold water if the people making and interpreting the laws subscribe to an ideology which respects local autonomy and freedom for worldviews in conflict with the ruling class. That is increasingly not the ideology of the majority, let alone the majority of powerful judges and politicians.

Thus, for those who can manage to leave behind the flag-waving propaganda of their youths, it is increasingly evident that something other than repeating bromides about teaching high-school civics, reading the Constitution, or electing “strong leaders” will have to be done.

As I’ve noted in the past, the notion of increasing local autonomy through nullification and secession has long been gaining steam in Europe, where referendums on decentralization are growing more frequent.

And conservatives are increasingly seeing the writing on the wall. Among the more insightful of these has been Angelo Codevilla. In 2017, Codevilla, writing in the Claremont Review of Books, laid out a blueprint for local opposition to federal power and noted:

Texas passed a law that, in effect, closes down most of its abortion clinics. The U.S. Supreme Court struck it down. What if Texas closed them nonetheless? Send the Army to point guns at Texas rangers to open them? What would the federal government do if North Dakota declared itself a “Sanctuary for the Unborn” and simply banned abortion? For that matter, what is the federal government doing about the fact that, for practical purposes, its laws concerning marijuana are being ignored in Colorado and California? Utah objects to the boundaries of national monuments created by decree within its borders. What if the state ignored those boundaries? Prayer in schools? What could bureaucrats in Washington, D.C., do if any number of states decided that what the federal courts have to say about such things is bad?

Now that identity politics have replaced the politics of persuasion and blended into the art of war, statesmen should try to preserve what peace remains through mutual forbearance toward jurisdictions that ignore or act contrary to federal laws, regulations, or court orders. Blue states and red states deal differently with some matters of health, education, welfare, and police. It does no good to insist that all do all things uniformly.

And by 2019, the need for separation was becoming more urgent. Last week Codevilla continued in this line of thinking:

[A]fter the 2020 elections ordinary Americans will have to deal with the same dreadful question we faced in 2016: How do we secure and perhaps restore our fast-diminishing freedom to live as Americans? And while we may wish for help from Trump, we have to look to ourselves and to other leaders for how we may counter the ruling class’s manifold assaults now, and especially in the long term…

The logical recourse is to conserve what can be conserved, and for it to be done by, of, and for those who wish to conserve it. However much force of what kind may be required to accomplish that, the objective has to be conservation of the people and ways that wish to be conserved.

That means some kind of separation.

The rest here

Be seeing you

Project MKUltra: The CIA's Dally with Mind Control

 

 

Posted in Uncategorized | Tagged: , , , , , , | Leave a Comment »

Forget “States’ Rights” — States Are Too Big, Too | Mises Wire

Posted by M. C. on May 4, 2019

Many of these efforts have little to do with gun control, but there is nothing special about gun rights and its relationship with decentralization. This same strategy can likely be replicated with other issues such as business regulation, taxation, and drug law enforcement…

https://mises.org/wire/forget-states-rights-%E2%80%94-states-are-too-big-too

As Justin Murray wrote last month, Washington was one of the first few states to spark a sheriff’s revolt against gun control. Now, sheriffs in other states have followed suit by refusing to enforce state gun control. At first glance, this appears to be a national nullification movement in the making.

These moves were in response to I-1639, Washington’s voter-approved measure which enacted background checks, raised the age to buy semi-automatic rifles to 21, established a 10-day waiting period for semi-automatic rifle purchases and mandated gun owners follow state guidelines for storage.

Instead of waiting for the Supreme Court to save them or making a futile attempt to lobby the Washington legislature, counties in rural Washington are taking things into their own hands. Additionally, certain activists are floating the idea of creating the new state of “ Liberty ” by splitting the state in two. Other counties in Colorado, Illinois, Maryland, and New Mexico, have followed suit with their own pro-gun resolutions.

Is Nullification the Way to Go?

Before President Trump was elected, there was a ton of hype behind his presidency being potentially the most pro-gun ever . Establishment gun lobbies were already talking about the prospect of licensed carry reciprocity at the national level and a potential de-regulation of firearms accessories, like suppressors .

Presently, the Trump administration has been a disappointment on guns so far. Some of the largest gun control measures since the Brady Act — Fix NICS and the Justice Department’s bump stock ban — were passed under a supposedly “pro-gun” president’s watch. Further, Trump’s Bureau of Alcohol, Tobacco, Firearms and Explosives has topped the Obama administration’s war on private guns. So much for a “pro-gun” presidency.

Especially after the failure to pass a misguided national reciprocity bill, gun owners in anti-gun states are starting to recognize that the neither their state or federal governments are going to save them.

Why There’s Something to Fighting Gun Control Locally

Read the rest of this entry »

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

Our Low-IQ Elites Strike Again – LewRockwell

Posted by M. C. on December 2, 2018

Do yourself a favor:

http://www.tomwoods.com/itunes

And please spread that link around to libertarians and other heterodox folk who have had it up to here with the 3×5 card of allowable opinion.

https://www.lewrockwell.com/2018/11/thomas-woods/our-low-iq-elites-strike-again/

By 

Tom Woods Show

Evidently the acting Attorney General believes, correctly, that the states have the power to nullify unconstitutional federal laws.

So the usual suspects went berserk, and trotted out the usual nonsense arguments.

I’m especially entertained when law professors speak against state nullification. Why, they didn’t learn this in law school! Which is why, as Kevin Gutzman says, one should never confuse legal training with an education.

What law school students learn are a series of cases, and implicitly the nationalist theory of the Union. The compact theory, developed in detail by the Jeffersonians and which makes far more sense of the historical record, is simply ignored.

Also ignored are the ratifying conventions, which is where James Madison told us the meaning of the Constitution was to be found. John Marshall, in nearly 35 years as Chief Justice, did not cite the ratifying conventions even once.

But there we find assurances that the federal government will have only the powers “expressly delegated” to it, and at the all-important Richmond ratification convention we read that Virginia will be “exonerated” if the federal government should reach beyond the delegated powers.

No wonder the so-called progressives prefer to ignore them. Read the rest of this entry »

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

The James Madison Passage They Keep Buried – LewRockwell

Posted by M. C. on November 18, 2018

https://www.lewrockwell.com/2018/11/thomas-woods/the-two-paragraphs-the-so-called-legal-experts-are-keeping-from-you/

By 

Tom Woods Show

Whitaker has made friendly remarks about nullification. This is not allowed, even though Thomas Jefferson said the states could nullify unconstitutional federal laws.

(No modern critic of the idea ever mentions Jefferson’s name. They’re afraid if we know Jefferson supported it, we peons might get ideas.)

CNN legal analyst Renato Mariotti offered these deep thoughts:

”‘Nullification’ was a legal argument made by Southerners before the Civil War who believed their states could ‘nullify’ federal law. That argument was discredited after their defeat in the Civil War, but it was made again by racists opposing desegregation. And now by Whitaker.”

I document the actual history of nullification in some detail in my book Nullification. Mariotti’s version reads like a third-grade essay, with a dash of Orwell.

On my podcast the other day I smashed Mariotti’s little lecture to smithereens.

In a later Tweet he berated Whitaker for his disparagement of judicial review.

Warned Mariotti: “The government could pass a law imprisoning journalists and no court could review it.”

Well, guess what: the government did pass a law like that, in 1798, and a lot of good the Court did. It was only at the state level that a spirit of resistance could be found.

Even if the Court had reviewed the law, what is the chance a bunch of robed Federalists were going to overturn the Alien and Sedition Acts?

And that, according to James Madison in the Report of 1800, is why we have state nullification: when the three branches of the federal government betray us — yes, even the demigods of the Supreme Court — the states have the final say.

guarantee you did not come across this passage in school, at any level: Read the rest of this entry »

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

Watch “Nullification: Interview with a Zombie” on YouTube

Posted by M. C. on September 8, 2018

Host Zombie sounds like…you fill in the blank.

Yes, we like nullification.

Posted in Uncategorized | Tagged: , | Leave a Comment »

Nullification and Secession: Solutions or Talking Points? | Abbeville Institute

Posted by M. C. on September 5, 2018

https://www.abbevilleinstitute.org/blog/nullification-and-secession-solutions-or-talking-points/

By 

Many of us in the South have maintained our faith in the Constitutional right of nullification and secession despite the efforts of massed, bloody, Yankee bayonets. But is the talk about nullification and secession an earnest effort to put forward solutions to an out of control, Deep State, supreme federal government or is it merely an exercise in heady political calisthenics?

I belong to the tribe that believes nullification and secession are the only real solutions to the current out of control supreme federal government. To demonstrate the validity of my belief, I will pose and answer three fundamental questions: (1) Are the concepts of state nullification and secession legitimate American political principles? (2) Is the current supreme federal government a legitimate governing authority? and (3) Would the modern-day acceptance of state nullification and secession be so unworkable that it would destroy the United States?…

Even the High Federalist Alexander Hamilton was forced to admit that the Sovereign States had the right to protect their citizens from an abusive federal government: Read the rest of this entry »

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

5 Stories You Missed While The Media Was Obsessing Over Michelle Wolf’s Speech | The Daily Bell

Posted by M. C. on May 4, 2018

http://www.thedailybell.com/news-analysis/5-stories-you-missed-while-the-media-was-obsessing-over-michelle-wolfs-speech/

By Rachel Blevins

1. Military-industrial complex stocks crashed in response to a historic peace deal between North and South Korea…

That is why the warparty is always doing it’s thing.

2. The same people who begged for universal healthcare to save dying babies stayed silent as the UK government killed Baby Alfie…

Death panels live. Read the rest of this entry »

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »