The Other N Word: Nullification

The spirit ofJohn C. Calhoun andRichard Russell is abroad in the land again in aletter to the Picayune:

If “we the people” allow the federal government to
destroy our right to decide an issue as important as our
personal health care, then we are no longer free people but
have become serfs of our political masters in Washington.

We must act now to overcome the tyranny of the political
status quo and return political authority to the people of
the once-sovereign states.

Citizens of Louisiana should contact their state
legislators and insist that they pass a joint resolution
nullifying the recently enacted health-care reform.

The carnival of arrogance, power and abject indifference
to the Constitution that recently occurred in Congress
demonstrates beyond question that we now live in the era of
federal supremacy — where the political elite rule, and
“we the people” must submit.

This is not the America our founding fathers crafted.
Nullification within our respective sovereign states will
destroy the tyranny of federal supremacy and return America
to a government of limited federalism where “we the
people” are the final arbiters of federal authority
under the Constitution.

James Ronald Kennedy, Mandeville

I love it when amateur historians “interpret” our national saga: they tend to leave out certain pesky details. The Civil War, or War Between The States as Mr. Kennedy surely calls it, settled the issue of nullification. But the teabaggers and their fundamentalist fellow travelers have their own reality as well as their own version of history. It’s amusing to hear the “founding fathers” described as essentially right wing Republicans when they were bunch of deists, skeptics and free thinkers. The *real* founding father of the United States (emphasis on the United) was Abraham Lincoln who bound the country/empire together by force of arms. Of course, he also freed the slaves, which Confederate nostalgics like Mr. Kennedy may consider an abuse of power too.

The current attempts by wingnuts to keep the sky from falling by suing to stop HCR are likely to fail unless they try a different approach than “nullification and interposition by the sovereign states.” Segregationists attempted to revive these doctrines in the Fifties and Sixties and these efforts went nowhere in the courts. So, wingers, fuhgeddaboutit.

We will, however, be hearing a lot about theCommerce Clause, which gives Congress the authority to regulate interstate commerce. The courts have given the Feds a lot of power via the Commerce Clause over the past 73 years but let’s keep our fingers crossed that none of these cases gets to the Roberts Court. There are at least 3 Justices who are itching toroll the clock back to 1936. I doubt that they would prevail but why give Scalito a crack at it.

Cross-posted at Adrastos.

UPDATE: Zachary Roth has a fine piece of reporting about HCR legal issues at TPM.

15 thoughts on “The Other N Word: Nullification

  1. A few years ago, petulant Republicans in the Senate were tired of Democrats threatening to use the filibuster to block the nominations of poorly qualified nominees to the federal bench. A threat was made to simply abolish the filibuster — the “nuclear option.” (I suppose we should now call it “the Nuclear Option I” or some such.) Since the filibuster is the friend of the unpopular minority, I was all for calling the GOP’s bluff and saying, in effect, “why, you’re right, Senator Shelby — the filibuster IS dreadful. I quite agree it’s high time to get rid of it.” Sadly, most Dems felt that resisting the GOP was the better choice, so we rolled over, had our bellies scratched by the press, and went along with the ill-advised appointments.
    I sometimes wonder whether the world would be better off if the North had told the South in the 1860’s, “You know what? You’re right. You ARE different than us, and if you’d like to go off on your own, why, that’d be fine with us. Stay in touch!”
    I recall then-Governor Cuomo handling calls for Staten Island to secede from New York the same way: “You want to provide your own sanitation, police? Your own schools? Your own economic development? You want to pay for your own roads, your own bridges? Fine by me!”
    If the moron-idiots of Louisiana want to take their state over the edge, I say let them go. So long as non-insane Louisianians are guaranteed safe passage to a nearby non-insane jurisdiction (i.e., NOT Texas), let’s really call their bluff.
    For many years I have wanted to say to the federal-government haters in the empty square states, “You know what? You’re right. We ARE oppressing you. From now on, you can buy your own interstate highways, your own air defense program, your own clean food, water and air inspectors, your own medical facilities.” In fact, I’ve often wanted to start a “movement” to demand an end to “State Welfare,” the salient point being that no state should be allowed to take more federal resources than they contribute. “End State Welfare Now! Alabama: Get a Job!,” and so on.
    These nullification jerks can be productively ignored, and even more productively agreed with. But disputing their nonsense strikes me as altogether unproductive.
    Just sayin’.

  2. Anything of importance that goes to the current Supreme Court represents a major threat to our country. That court has no principles that would stop it from re-legalizing slavery, let alone some of the more subtle legal protections we now have. I really wish that Congress would impeach Roberts, Scalia and Thomas ASAP. As far as I know no Supreme Court justice has ever been impeached, but everything has a first time.

  3. Ah, well, we’re always going to have those in the minority screaming that their rights have been violated by the majority–it’s a neat, but hardly effective, way of turning democracy upside-down.
    The proof that this is partisan horseshit is that there was nary a peep from these mouth-breathers when genuine assaults on individual rights were taking place (national security letters? indefinite detention of citizens and foreigners alike? the friggin’ Patriot Act, fer gawd’s sake? torture? etc.,etc.).
    Not one of these complainers got all states’-righty-tighty-whitey when George Bush nationalized a big bunch of National Guard units and sent them overseas, leaving the states only marginally protected. Not one of them got antsy about the Feds sending emergency funds to Gulf states damaged by Katrina and Rita.
    Now that the Feds are using their tax money for something other than wars, subsidies and tax cuts to the rich, along with bailouts for both domestic and foreign too-big-to-fail banks, they’re up in arms, mostly because they seem willfully ignorant of the 14th Amendment.

  4. I’m betting on Mr. Kennedy calling it “The War of Northern Aggression”.

  5. Jim wrote:
    >> If the moron-idiots of Louisiana want to take their state over the edge, I say let them go. So long as non-insane Louisianians are guaranteed safe passage to a nearby non-insane jurisdiction (i.e., NOT Texas), let’s really call their bluff.<<
    Jim, I'm a New Orleanian. I'm not going anywhere. Besides, Jindal blows with the wind so I'm not sure what his position will be in a few months.

  6. Texas gov. said they could still secede. Palin’s husband belongs to a secessionist party in Alaska. They can secede but then they pay their own way. Not only fresh water, banking, police, fire, schools, public libraries, roads, health care. Their providing all their citizens with those services is fine by me. Secessionists should not feel they can leave the Union and still live off us.

  7. I’m trying to picture a map of the new nation of seceded states of Texas-Alaska-Iowa.
    How can they move in their new country without passing through customs?

  8. On Countdown tonight, Lawrence O’Donnell (after pointing out that he is not a lawyer, but has played one on TV; and that he used to write federal tax law as a Senate staffer) predicted that the case would not turn on the ‘commerce clause’, but rather the winning argument would be that the penalty for not having insurance was a tax; and that by buying insurance, the individual effectively qualified for a tax credit in the amount of the otherwise imposed penalty “tax”. And nobody disputes (well, never say ‘nobody’) that the Federal Government can’t impose taxes.
    As for “All the objecting states have to do is not enforce it”; the enforcing body for the individual mandate penalty/tax is the IRS, not the states.

  9. I saw Lawrence and partially agree with his take. That’s why this is not going to work: the plaintiffs have to argue the commerce clause and it’s a loser for anyone to the left of Clarence Thomas. Personally, as non-practicing lawyer who’s never played one on tevee, I think the feds win a CC argument as well. It’s 2010, not 1810.

  10. I know there are New Orleanians about, and mean no disrespect — on the contrary. I wonder what happens when a majority of your fellow-citizens decides to drive over the edge — do you ever decide you can no longer remain?
    Lots of Europeans had to wrestle with this 75 or so years ago…

  11. No, Jim, I’m not that apocalyptic about things here. We’re a blue enclave in a red state but it’s not Alabama or Mississippi. We can still look down on them and South Carolina for that matter.

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