The power of III

Summum ius summa iniuria--More law, less justice

28 January 2011

Arguments for and against nullification -- Idaho State Constitution needs new amendment

I totally agree with Tom Woods' logicical argument and historical proofs with regard to original intent of the Constitution with regard to the compact theory of government, and that the individual states should have the final say on whether or not a federal law is Constitutional.  I believe that any State can ultimately nullify a federal law.

Some states, like Idaho, came into the Union after the War to Prevent Southern Independence.  The Idaho constitution was written in 1890.  

Despite my belief in the legitimacy of the concept of nullification,  I believe that States (like Idaho) that built in clauses of submission to Federal law without retaining the right to nullify would have to [go through the formal process to] amend their constitutions in order to proceed with nullification of a Federal law.

The letter from the Deputy Atty Gen. of Idaho holds some water;  his general conclusions stating that no state can nullify federal laws is wrong, however.  

Here is the gist of nullification in a nutshell:  
The sovereign people consented to be governed within the framework of States; 

The states formed a compact under the consitution to act in each other's collective interest;  

The federal government was to have limited specific powers and act as the agent for the states;
Each individual State held its own Convention to decide whether or not to ratify the Federal Constitution.
Only 9 states (Article VII) needed to ratify to essentially create a new entity out of the ashes of the United States created by the Articles of Confederation.  This is proof of State Sovereignty, as each state could choose not to ratify and stay independent.

Any States subsequently joining the Union would be adopting the Constitution and joining the compact voluntarily as equal entities.
The federal government was not a party to it's creation.
How can an element (i.e. the Judicial branch) of the entity created by the Constitution be the final arbiter of its own power?  
Only the parties to the compact (legal contract between equal entities, the states) can decide if their agent, the Federal government, has exceeded it's authority according to the limits imposed on it by the states.

If the state decides the Federal government has passed an unconstitutional law, it may decide to not enforce (to nullify) it within it's borders, imposing state authority (that is, force) between federal law enforcement (that is, force) and that State's citizens. 


January 21,2011
The Honorable William Killen
Idaho State Representative
Re: State Nullification of Federal Law - Our File No. 11-35557
Dear Representative Killen:
This letter is in response to your recent inquiry regarding the theory of State nullification
of federal law. Nullification generally is considered to take one of two forms. The first
is where a State acts within the system, whether through a court challenge, or through
concentrated series of efforts designed to repeal or amend offending legislative
provisions. The second form is most simply described as outright defiance of the law; in
other words, a State simply would ignore a federal provision, or a decision of a federal
Nullification, If Meant As A Term Through Which Offending Legislation or
Judicial Decisions Are Overturned By Working Within The Existent Constitutional
And Legal Framework, Is Permissible And Encouraged By Our System of Checks
and Balances.
Idaho has historically participated in a number of these efforts including the
current challenge to the Healthcare Reform Law, as well as various resolutions addressed
to the Federal Government with respect to the state sovereignty and specific federal
legislative enactments. (See HeR 64, 44,and SJM 106 (2010)). These examples reflect
how a State can work within the constitutionally designed system to overturn or amend a
provision that offends a State's notion of sovereignty and federal overreaching.
Nullification As Defiance Of Federal Law Or Enactment Is Inconsistent With
A State Officer's Duty To Act In Conformity With The Federal And State
Nullification is generally the argument that States have the ability to determine
the constitutionality of a federal enactment, and if a State finds the enactment
unconstitutional it can ignore or otherwise refuse to adhere to the federal requirements.
The basis for this argument is that the States came together to create the federal
government, and therefore the States retain the ultimate discretion as to the reach of
federal authority.! The adoption of these Resolutions in some respects represents the
apex of the ongoing argument between Alexander Hamilton and Thomas Jefferson over
the scope and influence of the fledgling federal government.2
These arguments arose cyclically throughout the Nation's early history, reaching
a virtual breaking point in 1828-1833 in what was referred to as the "Nullification
Crisis." President Andrew Jackson expressly rejected the theory of nullification as
incompatible with the existence of the Union and destructive to the very purpose of the
the Constitution.3 Southern State nullification advocates nevertheless continued to press
their cause, and their arguments formed a central justification for the Civil War.
The Legal Difficulty Of Idaho's Nullification Claim.
As an historical matter, many of the original States came into existence first as
English colonies and then as sovereign parties to the Articles of Confederation. Idaho's
road to state status followed a much different path.
Virtually all land within Idaho is the result of the United States making a claim to
the land, which was disputed by the British until the adoption of several treaties leading
ultimately to the creation of the Oregon Territory.4 Congress then created the Territory
of Idaho and, ultimately, the State of Idaho. Once Idaho was admitted as a StateS it
acquired all of the privileges and immunities held by each of the other States, but as
reflected above, the right of nullification, the right of secession, and the compact theory
had all been rejected by the United States by the time of statehood.
The framers of the Idaho Constitution were acutely aware of that fact. Article I, §
3 of our Constitution states:
1 See Kentucky Resolutions, Thomas Jefferson, (November 16, 1798 & December 3, 1799) and Virginia
Resolution, James Madison, (December 24, 1709).
2 Hamilton actually suggested sending the Army into Virginia as a pretext-thus even the earliest
arguments for nullification were viewed as latent arguments for civil war. See also Jonathon Elliot,
"Answers of the Several State Legislatures: "State of New Hampshire" Debates in the Several State
Conventions on the Adoption of the Federal Constitution, pp. 538-539. (1907).
3 Jackson also expressly rejected the right to secede, noting that the Constitution forms a government, not a
league of States. President Jackson's Proclamation Regarding Nullification, December 10, 1832.
4 Joint British and United States Claim was provided for in Treaty of 1818. The Oregon Treaty (1846)
established the boundary between United States claims and British Claims at the 49th Parallel. The territory
of Oregon was created on August 14, 1848. The territory ofIdaho was created on March 4,1863 (12 Stat.
L. 808, ch. 117).
5 Reviewing the Idaho Admission Bill, § 19 specifically applies the laws of the United States. See 26
Stat.L. 215, ch. 656; am 1998, P.L. 105-296.

State inseparable part of Union.-The State of Idaho is an inseparable part of
the American Union, and the Constitution of the United States is the supreme law
of the land.
The framers therefore expressly recognized Idaho's status as a part of the United States
and the supremacy of the United States Constitution. Consistent with this recognition,
every legislator is required to affirm "that I will support the constitution of the United
States and the constitution of the State of Idaho.,,6 Legislators and other state officials, in
other words, pledge to carry out their duties in a fashion that directly conflicts with the
second form of the nullification theory.
The alpha and omega of the nullification theory, in sum, rest upon rejecting the
principle that the United States Constitution as the supreme law of the land.7 The theory
runs contrary to the very purpose of the federal constitution and Idaho's express
constitutional acknowledgment in Article I, § 3 of that supremacy.
Courts Have Expressly Rejected Nullification
Our history is replete with federal enactments that were unpopular in one State or
another, or even within regions. Taking the logic of the nullification theory to its natural
extension, federal law would become a patchwork of regulation depending upon which
States chose to comply. It is hardly surprising, given this specter, that no court has ever
upheld a State effort to nullify a federal law.
The most instructive case on nullification is likely Cooper v. Aaron8 This case
arose out of a belief by the State of Arkansas that it was not bound to follow the Supreme
Court's decision in Brown v. Board of Education. 9 Arkansas, through its governor and
legislature, claimed that there is no duty on the part of state official to obey federal court
orders based upon the Court's interpretation of the federal constitution. lO The governor
and the legislature, in practical effect, were advancing the theory that the States were the
ultimate arbiters of the constitutionality of federal enactments and decisions.
The Court expressly rejected this argument stating: "No state legislator or
executive or judicial officer can war against the Constitution without violating his
undertaking to support it."ll The Court went further: A governor who asserts power to
nullify a federal court manifests that the fiat of a state governor, and not the Constitution
of the United States, would be the supreme law of the land.
6 Idaho Constitution, Article III, § 25 (Oath of Office). See also Idaho Code § 59-401.
7 Article 6 § 2, U.S. Constitution.
s 358 U.S. 1,78 S.Ct. 1401 (1958).
9343 U.S. 483,74 SCt. 686 (1954).
10 358 U.S. at 4, 78 S.Ct. at 1403.
II Id. at 18,78 S.Ct. at 1410.

There is no right to pick and choose which federal laws a State will follow. Aside
from ignoring the Supremacy Clause in Article VI, Clause 2 of the United States
Constitution, that contention cannot be reconciled with Article I, § 3 of the Idaho
Constitution or the oath of office prescribed in Article III, § 25. I hope this brief analysis
responds adequately to your inquiry.
Brian Kane
Assistant Chief Deputy [Attorney General]

1 comment:

  1. They do need a new amendment, but even before that, they need a new attorney general. This one is a progressive with no love of freedom, and apparently is testicularly-challenged as well.