Nullification or Justified Defiance? (Quick Thoughts)

Being an Originalist I am flatly opposed to the traditional concept of Nullification, that being a State ignoring or dismissing a Federal Law, Statute or other act or power, because that state does not like that law, act or power. The most significant issue with nullification is, the Constitution and Federal Law of the United States is superior to that of the States. The Supreme Court has ruled that the States cannot nullify Federal Law, since it is given supremacy over State law by the Constitution.

Article VI of the Constitution States;

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”

Idaho is preparing to pass a law which will prohibit the enforcement of the Health Care Reform act of 2010¹. What makes this interesting compared to traditional nullification is it is not because the State does not like the law (though it probably does not like it), but because the State of Idaho contends the Law in illegal or Unconstitutional. The State is contending it cannot be made to enforce an illegal law, which brings up the question, is this nullification or justified defiance and checking an abuse of power?

This will certainly quickly head to the court system, but what any decision by the courts will hinge on is this part of Article VI, “which shall be made in Pursuance thereof (of the Constitution)”. If a law is not made in pursuance to the Constitution, it cannot be enforced so it cannot be supreme. This will also a explore the order of power, since it was the States who granted the power the Federal Government has, are they also not ones to be judges an abuse of the power given? The States can challenge in federal Court, but that is both expensive for each issue, and can take years to resolve making it prohibitive for many things. Could this be an appropriate method to check federal power when laws are passed without regard to its constitutionality and just passes what it wants relying only a court to say, “your out of the box”. This concept of Idaho from first take does not prohibit a challenge and ruling against the State either, nor does it permit a State to disregard a valid law.

This is a topic that can be explored in great depth in many other aspects, but this is just a quick first impression of the most significant constitutional and power structure parts of it.

1: http://www.washingtonpost.com/wp-dyn/content/article/2011/01/20/AR2011012005860.html

The Convention of 1787: Prelude, The Annapolis Convention of 1786

 

The Constitution Convention of 1787 was not the first attempt to revise and amend the failing Articles of Confederation. In September 1786 Delegates from Five States, New Jersey, New York, Delaware and Virginia met to discuss the Articles of Confederation. This Convention, would end up recommending what would become the Constitution Convention of 1787.

But to get to even this point certain situations occurred throughout the United States that made this Annapolis Convention necessary to recommend changes to the Articles of Confederation.  Due to concerns with the western frontier George Washington, a leading Nationalist, urged the development of rivers and roads to keep the settlements in the frontier tied with the  rest of the Union. In 1784 he solicited the assistance of fellow Virginian James Madison , to take a step in this direction by arranging a meeting between Maryland and Virginia to discuss development of the Potomac River, a waterway leading to the western frontier. Since both States where on the Potomac River, and Maryland owning almost of the water itself, Virginia had no ability to navigate the river without violating Maryland's territory and navigation rights. In March 1785 James Madison arranged another meeting between Maryland and Virginia in Alexandria, Virginia, and on March 28, 1785 the Mt Vernon Compact was signed. This agreement between Virginia and Maryland allowed for the free navigation of the Potomac River for both States for the entire extent of the river, allowing trade and commerce with frontier settlements near the origin of the Potomac. Since under the Articles of Confederation¹ each State was basically an independent Nation and Congress did not have the authority to regulate commerce, trade or even waterways like this, it required a treaty basically to reach this agreement, since the sovereign territory of a State, Maryland, was at the heart of the problem. Shortly after the Compact was reached, and both sides felt satisfied with it, it was discovered this Agreement between Virginia and Maryland was in Violation of the Articles of Confederation Article VI:

Censorship or regulating Speech is never the answer. (Quick Thoughts)

I wrote a while back about Political Venom, how the political scene is so polarized honest debate has been left behind, and the common tactics is insults to the opposing view instead of a debate on the merits of an issue.

Now there is a move to re-institute the Fairness Doctrine among other calls in some form to regulate speech some consider as “hate” or incite full”. This is NOT THE ANSWER to the problem. I am not sure what is the answer, other than stopping the insults and lets talk about the issue, but limiting speech is limiting ideas and debate where it exists.

The only way any sort of regulation can be achieved with force is by the Government, the First Amendment was designed specifically to prevent this, to NOT LET GOVERNMENT decide what can and cannot be said. If government is given the power to censor or limit speech it finds offensive, obscene, hateful, incite full or by other prescribed method, government has been given a mechanism to limit or prevent speech which may not be in its interest and prevent it in one of those names. This gives a means to prevent or limit the strongest dissent of government, which in contrary to the Constitution, American spirit and the American Founding, which were all based on the Strongest dissent of Government.

Limiting or censoring speech can only have one certain consequence, the exchange of ideas and debate will be limited, and limited debate cannot lead to the possibility of the best answers to the questions the Nation faces.

Compare and Contrast; The Articles of Confederation vs. The Constitution

The Articles of Confederation contained many flaws, some serious that if not corrected may have been fatal to the United States (Why the Articles of Confederation Failed). Upon the drafting of a new Constitution in 1787, the drafters took many of these lessons and short comings to heart, and corrected them in the new Constitution. Originally when the first Convention was called for in Annapolis in 1786, the intention was to simply alter and amend the Articles of Confederation. The poor showing in Annapolis in September 1786, with only New York, New Jersey, Pennsylvania, Delaware and Virginia sending representatives, led this convention to only recommend another convention in Ma, 1787. This Convention that was recommended  for May 1787, to take place in Philadelphia, this became the Convention that drafted a new Constitution.

Just as had been tasked for the Annapolis Convention in 1786, the Convention in Philadelphia was similarly tasked by the Congress assembled to make recommendations to Alter and Amend the Articles of Confederation. This convention quickly realized that just altering or amending the Articles of Confederation would not suffice, and a whole new Constitution was written. The Articles of Confederation served as the base idea for the Convention, and many parts or influences of the Articles can be seen in the Constitution, but it is the differences that set the Constitution apart.

Who are the Founding Fathers? Robert Yates

A member of the New York Delegation to the Constitution convention of 1787, Robert Yates left the Convention early, never to return and sign the Constitution. Rather he would become one of the main opponents to the Constitution under the pseudonym Brutus of the Anti-federalists, whom collectively succeeded in having a Bill of Rights ratified. The son of Joseph and Maria Yates, Robert Yates was born in Schenectady, NY, on January 27, 1738. He received a classical education in New York City and later studied law with William Livingston and also became a surveyor. In 1760 Robert yates was admitted to the New York bar, and moved to Albany where in 1765 he married Jannetje Van Ness and eventually having six children.

Early on in the the struggle for American liberties he as a leader of the Albany's Patriots. Even though he did not sign the Albany Sons of Liberty constitution of 1766, he did become prominent in the Albany opposition to the Stamp Act. Between 1771 and 1775 Yates was a member of the Albany board of aldermen. Pre-Revolution he considered himself a Whig, whose vigilance against corruption and emphasis on the protection of liberty appealed to many in the all  Thirteen Colonies. By 1774, he had joined the Albany Committee of Correspondence and stood among its first members when the committee's activities became public in 1775. During this time he remained a member of the Albany common council, even though it purpose was being replaced by the extra-legal Committee of Correspondence, Safety, and Protection.