Nullification: An Overview of its Many Forms

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Posted by Benjamin W. Mankowski, Sr.

In the nullification movement, there are varying degrees and methods of nullifying certain federal acts. One who has been with the movement a while could forget and hyper focus on one, leaving someone new to the movement to think of nullification as a very narrow spectrum.

To eliminate that thinking, it is good to go back to the Tenth Amendment Center’s definition of nullification, which is: “any act, or set of actions, that results in a particular law being declared unconstitutional and rendered null, void or even just unenforceable…”

There are so many opinions on nullification, if I listed every article and opinion piece written on it in the past week, I’d probably be finished with this entry sometime around next Christmas. This is not a bad thing. If others are talking about it, it means the message is being heard and cannot be ignored.

This is intended to be a general review, so while there is a time for everything under the sun, there is no time to include links and sources today, just a quick refresher. There is, however, a time when a certain forms of nullification may be more applicable than others.

LEGISLATIVE NULLIFICATION

The most commonly discussed type of nullification at the Tenth Amendment Center is legislative nullification. This is when a State or local government passes a law refusing to comply with a federal action. In the most forceful cases, this even includes arrest and jail time for federal agents attempting to enforce said federal act.

On the other end of the spectrum, we have nonbinding resolutions warning the federal government that a certain act is unconstitutional and/or unjust, much like a cease and desist letter. While not outright nullification, these resolutions “till the soil” so to speak, setting the stage for future action.

Legislative nullification can be very useful when used at the right time, such as opposing REAL ID, but can also be abused in rare cases, such as during the period of segregation (more about combating that later). The stronger bills, which would fall under the category of interposition, could lead to armed conflicts between state and federal officials, so courage and prudence should be carefully balanced when deciding how far a nullification bill should go.
Too little, and the legislature will either wind up having to draft a bill for stronger measures. Too much, and conflict gets created where it needn’t be.

EXECUTIVE NULLIFICATION

Executive nullification (not sure if those specific words have been used previously) can come in the form of a governor (or mayor at the local level) using the veto on a state bill that would implement an unconstitutional federal act at the state level. If such a bill has already received a previous Governor’s signature, a new governor can veto future funding. This is particularly effective in states where the legislature has passed a bill setting up insurance exchanges under the Affordable Care Act, just as one example.

SHERIFF NULLIFICATION

Sheriff nullification is when a county sheriff requires a warrant before a federal agent can arrest or detain someone in that county. This could be part of a multi-layered approach to preventing unlawful detentions under the NDAA or Patriot Act, along with a State-level noncompliance bill and Sheriff’s first legislation, which would not so much establish the sheriff’s authority in those cases, but reaffirm it, much as the Bill of Rights does with particularly important rights.

JURY NULLIFICATION

Jury nullification gives the accused in a case the opportunity to override an unjust law by appealing to the jury to judge not just the evidence, but the law itself. In cases where an individual’s back is up against the wall, it is a very important tool to have in one’s arsenal. This is true even when a judge forbids the use of such an appeal, as happened in the “NJ Weedman” case. A large part of the success of jury nullification depends greatly upon jurors knowing ahead of time about it, as it is likely judges will try to use the same tactic of forbidding appeals to it. Another part of the success of jury nullification depends on actually getting a trial, which disqualifies it as a tool against the NDAA, which provides for indefinite detention without trial, or ObamaCare, which imposes fines and jail time without trial.

INDIVIDUAL/GROUP NULLIFICATION

Individual or group nullification receives little to no coverage, but often is the spark that lights the powder keg of discontent with unjust federal, or even state and local rules. Ironically, many who only think of nullification through the lens of segregation fail to realize the grassroots actions of people like Rosa Parks and Rev. Dr. Martin Luther King Jr. were more successful in overcoming those injustices than any federal law or Supreme Court decision.

From bus boycotts to sit ins to refusing to move from the bus seat you’re sitting in, these actions nullified the sick twisting of state and local nullification. It is doubtful even Dr. King, himself a vehement critic of nullification, realized he was in fact nullifying.

Like legislative nullification, personal and group nullification can come in different degrees and therefore carry different levels of risk. The bus boycotts in Montgomery, Alabama may not have been against any state or local ordinances, but the loss of revenue from empty buses was an effective weapon in that situation, more powerful than resorting to violence, which would only beget more violence.

Other tactics, such as sit-ins and other nonviolent noncompliance, may result in arrest and jail time, so obviously these are not and should not be everyday tactics. Still, when a law is unjust, it is no law, and disobeyed long enough by enough people, it will be overturned by the simple process of the law catching up with the culture. For three and a half centuries, the early Christians were jailed, tortured and killed for refusing to worship the Emperor and the Roman gods, but it could certainly be argued their perseverance nullified that non law in the end.

A BROADER DISCUSSION

When we open our thought processes, and we allow for a broader discussion of nullification, it’s easy to see we don’t just have one hammer with which to try to fix every problem in our broken system. We have a massive toolkit at our disposal, with a movement consisting of individuals and groups with a very general surface knowledge, specialists in specific areas, and people who have an in depth knowledge of many or all areas of nullification.

The vehicle of liberty is broken and waiting in the shop. Let’s get everyone working on it, perhaps in different ways, but with the same goal in mind, complete and total restoration.

Benjamin W. Mankowski, Sr. [send him email] is a blogger with the Tenth Amendment Center. He writes from New Jersey.

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