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May 08, 2009

Comments

Isn't the official RW position that the SCOTUS (indeed, the entire judiciary) is nothing more than a nest of activist liberal judges and, therefore, not a legitimate part of government?

Since the GOP ignores whatever history and facts it dislikes, ignoring the existence and purpose of the SCOTUS is fully in character.

point of grammar:

"It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act."

as the sequel makes clear, this should be understood as though it said:

"...to plain to be contested: *either* that the constitution controls...*or* that the legislature may alter...."

so the incontestably plain proposition is not:

"that the constitution controls any legislative act repugnant to it"

but rather, it's plain that either the constitution is boss, or the legislature is boss.

yeah, i know what led you to google it, hilzoy:
"this is really well-written. it must be plagiarized. i'll google it. yup! it's plagiarized, alright!"

thousands of teachers all over the country are reading final papers and having exactly that sequence of thought.

if the georgia legislature didn't cite its sources, then it gets an f.

Can we question their patriotism now?

I don't think that passage is written as if SCOTUS didn't exist, they just consider SCOTUS part of the federal government that has scandalously stolen the sovereignty of the sacred states.

that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers;

This is what we have now if your view is that SCOTUS is part of illegitimate federal gov't.

and what does this mean:

"Any Act...which assumes a power... and which serves to diminish the liberty...shall constitute a nullification of the Constitution."

how can an act constitute a nullification of the constitution? suppose there's some act which fits the description--i don't know, eisenhower's interstate highway act.

when it was enacted, was the constitution thereby nullified? and does that mean it went 'poof!' and vanished? or what?

i mean, usually "nullification" in these contexts describes what an agent does when they treat a law as having no force. when a jury "nullifies" a law, they refuse to find in accordance with it. when a state "nullifies" a federal act, it refuses to be bound by it. it treats the alleged law as if it were not good law, no law at all. and it thereby expresses the view that no one is or ought to be bound by the alleged law.

but then what are they saying here? that eisenhower's interstate highway law set aside the constitution? that the interstate highway act had the effect of relieving all of us of our obligations under the constitution?

if they simply mean: this act is inconsistent with the constitution, i.e. this act is unconstitutional, then surely they should say it is "nullified by" the constitution?

maybe the lawyers can help me out here.

Is it naive of me to still be surprised that Serious Print Journalist Hendrik Hertzberg didn't think to look into the origin of the resolution's language himself?

Maybe hilzoy should have called in the information anonymously so TNR would have felt compelled to report it!

My bad...I should have followed the link. It's The New Yorker, of course. And they do have somewhat higher standards at least as far as dutifully passing on whisper campaigns go.

while it follows almost deductively from a system of written constitutionalism that the constitution should be (is?) superior to laws repugnant to it, the status of the supreme court as final arbiter of the constitution's meaning is less logically ironclad. while marbury v. madison is persuasive, the power it arrogates to the court is somewhat self-referential - the court as interpreter of the constitution interprets the constitution to give the court the status of final interpreter. the status of the supreme court as lawgiver is thus more a matter of persuasion and tradition than it is strictly a matter of law.

the same concerns about maintaining the supremeacy of the constitution that led the court to name itself supreme interpreter of the constitutions meaning could in a different context lead a different institution to attempt to usurp that role, as georgia appears to be attempting to do here.

As others have reported, the Georgia State Senate has adopted a resolution allowing the state to nullify any federal laws it thinks are unconstitutional.

They could start with nullifying the flow of Federal govt. stimulus money to Georgia. Clearly it would be far more constitutional to send it to other states. After that, let's talk about relocating their CDC facilities to states which take a broader view of that late 18th cen. document which nowhere in it says anything about Tamilflu.

Secession is a two-way street, silly peeps.

Actually, the beginning of the bill credits Jefferson (3rd para): NOW, THEREFORE, BE IT RESOLVED BY THE SENATE that this body reaffirms the principles of government expressed by Thomas Jefferson in a resolution written for the Kentucky legislature in 1798 stating that the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government...

That doesn't stop it from being the farce version of the original tragic civil war attempts at secession. That, and can the GOP finally stop claiming the mantle of "The Party of Lincoln" please?

Of course, the conversation brings to mind this beauty...

i cant think of a reason that the supremacy clause doesn't completely foreclose any authority to reinterpret or nullify federal law the Georgia legislature may claim.

carleton--
oh, alright. if they cited their source, then they don't get booted for plagiarism.

neil s.--
marbury v. madison is not the origin of legislative review. it simply follows from the court's ordinary role in interpreting the laws. the need for the judge to practice statutory construction is a common-law inheritance.

the clearest expression of this is in federalist #78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

this was the intention of the framers, made public prior to ratification.

Jefferson and Justice Marshall were confronting a similar problem. . .

Actually, they were confronting different problems entirely, since Justice Marshall's problem was . . . Thomas Jefferson.

"Where, I wondered, is the Supreme Court in all this? The Supreme Court determines the constitutional limits on the exercise of federal power."

Nope, the Supreme court enforces the constitutional limits on the exercise of federal power. The Constitution determines them. That's the very heart of the issue, I think.

neil s.--

supremacy won't do it, because it reads:

"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."

so it is only those laws made "in pursuance of" the constitution that are supreme.

so nullifiers will simply argue that the law in question is contrary to the constitution, therefore not "in pursuance thereof", therefore not supreme.

kid bitzer

-the constitution could have provided explicitly for judicial review, but didn't. was it so obvious that it went without saying?

-the constitution contemplates interpretation by the executive and the legislative branches. i think it is mentioned in the oaths of office. some issues will never make it to the court, and the political branches will then be the final interpreters. does the ability to prevent judicial review make the executive the rightful interpreter?

-this must have been intended, or the judicial power wouldn't have been limited to cases and controversies.

-if the courts power extends only to cases and controversies, why must the other branches and the states reason by analogy after a case is decided? (this was addressed in a famous Arkansas school desegregation case the name of which I forget)

-if we have a living constitution, and some institutions feel that the court is no longer a meaningful check on federal power vis a vis the states, is the constitution ambiguous enough on the issue of whose interpretation of its meaning is authoritative that it is amenable to change?

neil s.

"-the constitution contemplates interpretation by the executive and the legislative branches. i think it is mentioned in the oaths of office."

could you quote the bits you have in mind?


brett--"x determines that p" is ambiguous between
"x makes it the case that p" and
"x discovers that it is the case that p".

hilzoy meant that the court does the second, you insist that the constitution does the first, but there is really no disagreement between you.

"i cant think of a reason that the supremacy clause doesn't completely foreclose any authority to reinterpret or nullify federal law the Georgia legislature may claim."

It's very basic: The supremacy clause only makes federal law supreme on subjects the federal government has the authority to legislate on. Georgia isn't presuming to have the power to nullify actual federal laws, but only to ignore pretend laws Congress never had any authority to enact.

"hilzoy meant that the court does the second, you insist that the constitution does the first, but there is really no disagreement between you."

There most assuredly is: In the cases where it's not the case that p, but x decides to determine it anyway.

Secession is a two-way street, silly peeps.

Oh, they know it. That's where all of the resentment comes from- knowing that their bridges are being built for them by New Yawk bankers, Jewish movie moguls from LA, and gay computer programmers from SF. They aren't stupid enough to get off of the gravy train, just immature enough to claim to be the "Real Americans" while people they denigrate are picking up the tab.

So, wait, they're seriously threatening to break up the United States? AGAIN?

EPIC FAIL.

Cool! So Georgia can annul DOMA? ;-)

What is it that they're upset about?

Getting their taxes cut?

Losing the election?

Affirmative action?

Those Damn Kids on Their Lawn?

The world may never know.

brett--

no, because "discover" is a success word: you cannot discover what is not so.

look--maybe i'm wrong about hilzoy's position. i'll leave that to her to expound.

but *i* believe that the constitution "determines" federal power (i.e. actually does the work of creating it and limiting it) and that the scotus also "determines" federal power (by discovering, when the matter is in doubt, what the constitution has already done).

i agree with you that the scotus has no independent power to create or remove the limits that the constitution puts in place. still, it is the job of the scotus--and only of the scotus--to attempt to discover and pronounce upon what limits the constitution already put in place.

when the scotus gets it wrong--as it must have done over the years, since it has reversed itself--then it has failed to determine (i.e. discover) how the constitution determined (i.e. created) the limits.

First, while Hendricks writes

I believe that would be "Hendrik"

Texas, now Georgia; tea parties; panic gun-buying; etc. ... sounds to me like the beginnings of the sort of '90s-style Patriot-inspired freakshow that Dave Neiwert has predicted for the Obama tenure.

wow--i should have read the ga. resolution before writing my 2:34.

it really *does* say that if any act that they don't like is enacted, then the constitution goes 'poof!':

"That should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually."

so, for instance, the power to declare war, which the state of georgia had previously delegated to the u.s.a., reverted to georgia because of eisenhower's interstate highway act. the power to coin money. the power to make treaties. the power to lay tariffs.

as soon as the feds enacted the first act that georgia thought was unconstitutional, not only was that particular act null and void, but the whole damned constitution went 'poof!' and georgia became a sovereign state once again.

(they got this from the credit-card companies: universal default for constitutions.)

cool! they don't even need to secede: on this doctrine, there is nothing left to secede from!

well: whenever republicans run things, all i can say is, thank god the grown-ups are back in charge!

I don't believe that predicting panic gun buying when a Democratic supermajority in Congress coincides with the Presidency of somebody with Obama's record on the subject of gun control required any particular precience.

From digby:

Trying to keep up with GOP hypocrisy is difficult even in the best of times, but these days it's so pervasive it will give you a migraine just trying to sort out the most egregious from the merely laughable. The examples are flowing now that their eight year reign is over. I think one of the most interesting is their retreat to states' rights after the greatest expanse of not just Federal, but executive, power in history.

...

Would you approve or disapprove of the state that you live in leaving the United States?

Approve Disapprove Unsure

All 4 82 14
Dem 2 95 3
Rep 9 63 28
Ind 3 83 14

...

And to think it was only a couple of years ago that Ann Coulter was feted on the cover of TIME magazine for her book about liberals called Treason. Again, it's hard to keep up with the inconsistencies, but there you are. The great patriots who draped themselves in the red, white and blue for years are now metaphorically ripping it in tiny little pieces.

"how can an act constitute a nullification of the constitution?"

IANAL, but my interpretation would be that it means something along the lines of "is in defiance of the constitution, and cannot be regarded as legitimate or binding, and is therefore null."

To be sure, this may not be the interpretation/intended meaning of the Georgia legislature.

Has anyone checked the similar resolution of the just-passed Oklahoma leg for similar language?

"but then what are they saying here?"

Last I looked, insofar as there was any legitimate basis for these resolution, it's founded in the Tenth Amendment.

"It's The New Yorker, of course."

No, it's Hendrik Hertzberg's blog, as Hilzoy noted. Why do people so often confuse blogs posted on the website of publications with the publication itself? Blogs aren't vetted by the publication, or edited by them, and in many cases the writers aren't even paid by the same company.

Predicting the gun buying panic may not have been hard, but that doesn't make the buying justifiable based upon the facts of the situation. Unless, Brett, you are aware of some facts not available to the general public.

On a side note, I received a czall from the NRA, an organization which I actually support in regards to some of their activities. They were conducting a poll and the very first questions was "Do you trust the gun-hating Congress to support your Second Amendment rights?" I asked them to rephrase it and when the caller used the same language I merely mentioned that he must have the wrong number and I live in the United States and therefore the question is not applicable.

no, gary, what they are saying there really has no basis in the 10th amendment.

if you read my 4:03p update (or the ga resolution itself), what you'll see is that their doctrine of "act nullifies constitution" is the view that one illegitimate overreach on the part of the feds means that *all* powers previously delegated to the feds revert to the states. not only the "reserved powers" mentioned in the 10A.

and when all of the delegated powers revert, the federal govt. is dissolved, and the state resumes its status as an independent sovereign nation. that's what it means for the delegated powers to revert.

so this really is utter moonshine, and has no 'legitimate basis' in the 10A.

Question: Exactly when does this become treason or conspiracy to commit treason? I don't think a bill would count as an overt act, but otoh some wingnuts are probably already carrying out non-criminal overt acts towards this illegal end.

Your post is far too easy on Jefferson. There was plenty of evidence in 1798 that judicial review was the correct method of proceeding. Jefferson was supporting nullification as a revolutionary doctrine (and Madison wouldn't support him). As an example of Jefferson's hypocrisy here, see this passage from an argument made by his political ally, John Taylor of Caroline in the case known (when it reached the Supreme Court) as Ware v. Hylton:

“legislative majorities are not to be … relied upon…. Hence the Constitution of America was designed to preserve certain rights against the aggression of such majorities, and hence too it provided a mode of enforcing that Constitution…. It interposes the judiciary between the government and the individual.” My emphasis.

Jefferson corresponded with Taylor regarding this test case and supported both it and Taylor's argument. In fact, inherent in the whole Jeffersonian criticism of the courts was the failure of the judiciary to intervene and constrict the federal government to its (in their view) proper boundaries.

Other state legislatures responded to the VA and KY resolutions by expressly endorsing the judiciary as the proper forum for disputes about the meaning of the Constitution.

"so this really is utter moonshine, and has no 'legitimate basis' in the 10A."

I didn't write that it did. I wrote "insofar as there was any...."

the power to declare war, which the state of georgia had previously delegated to the u.s.a., reverted to georgia because of eisenhower's interstate highway act. the power to coin money. the power to make treaties. the power to lay tariffs.

Hey, whatever. Just as long as they don't try paying me with that Georgia money.

And if Georgia goes and declares war on somebody, I hope they don't expect the rest of us to get their back.

Wanna be on your own, you're on your own.

Eric: "First, while Hendricks writes"

Oops! Fixed.

I believe that the Constitution sets the limits of the federal government, and that the Supreme Court interprets the Constitution.

Jefferson disagreed with the breadth of the power of judicial review as understood by the Marshall Court, including as applied to executive actions such as at issue in Marbury.

But, he was supportive of judicial review as a whole, including to defend individual rights. He understood that it would follow from the system put in place. He said as much in support of the BOR in a letter to Madison. The practice was in its infancy in 1798, but there were some examples of it being used, or assumed to be in place.

[So, I'm not sure of Mark Field's objection. Jefferson didn't oppose judicial review. But, he felt it wasn't an adequate check here. It was like having an alleged fugitive slave entrusting themselves with the "protection" of the federal courts in the 1850s.]

OTOH, the Federalist judges of the 1790s were supportive of the Alien and Sedition Acts, following a more limited understanding of free speech and acceptance of national authority. This was suggested by individual justices' actions at trials arising from them.

Thus, when Jefferson and Madison wrote those resolutions, they had little faith in the Federalist judiciary, so that might be another reason why they didn't emphasize that aspect of things.

OTOH, with applications to the current day, the Kentucky Resolutions did note:

to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws from the courts, to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers

So, the courts were referenced ... the laws were deemed danger in part because they denied that essential check.

I don't believe that predicting panic gun buying when a Democratic supermajority in Congress coincides with the Presidency of somebody with Obama's record on the subject of gun control required any particular precience.

Um, I didn't say that Neiwert predicted panic gun-buying. I said that it looked to me like evidence of the gathering pace of the sort of conspiratorial far-right grassroots freakshow, characteristic of the Clinton era, that Neiwert has predicted will resurge now that government has suddenly become evil again. Since I myself had had the same insight, I don't even consider that prediction particularly prescient.

And if you think that the gun-buying frenzy has nothing to do with conspiracy theories about the new government and its designs on people's weapons and right to bear arms, something that several prominent advocates have themselves acknowledged, then I doubt you're a serious interlocutor.

It becomes treasonous when, and only when, they wage war on the US, or ally with somebody else who's doing it. I suspect memories are long enough that nobody is going to fire on Fort Sumpter this time around. If shots get fired, I expect they'll be going the other way.

And I think the gun buying frenzy has everyting to do with conspiracy theories, and that given the records of the people now in charge of the government, those theories are not entirely irrational.

Ignatius Piazza at Front Sight Blog:

I do not believe, as I have seen no CREDIBLE evidence, that there is a CURRENTLY a conspiracy by the Federal Government or the United Nations or anyone else to slow or stop the production and distribution of ammunition in the United States.

...

People are afraid the current government is conspiring to eliminate our ability to use guns to defend ourselves by drying up the ammunition supplies.


Psst ... people thinking that the Federal Government and the United Nations are plotting to dry up ammunition supplies in the U.S. are, well, irrational.

"It becomes treasonous when, and only when, they wage war on the US, or ally with somebody else who's doing it."

I'll agree with Brett here; people throw around charges of "treason" far too easily, both right and left. It couldn't be a more serious charge, and people shouldn't bring it up lightly, or unseriously. Advocacy of any POV isn't treason; we're supposed to have free speech in this country, no matter how stupid the speech.

"And I think the gun buying frenzy has everyting to do with conspiracy theories, and that given the records of the people now in charge of the government, those theories are not entirely irrational."

They remain theories.

Ditto the qually fervent paranoia that, despite all evidence, Democrats are slavering to renew the Fairness Doctrine.

I'll agree with Brett here; people throw around charges of "treason" far too easily, both right and left.

I agree with that in a general sense, but here it seems specifically warranted. Just as 'facsist' is too often used in political conversations, but becomes completely appropriate when discussing the American Nazi Party.

Now, we all know that this isn't going anywhere past posturing. But let's not pretend that the posturing itself isn't posturing towards treason, even if it will never occur.

It becomes treasonous when, and only when, they wage war on the US, or ally with somebody else who's doing it. I suspect memories are long enough that nobody is going to fire on Fort Sumpter this time around. If shots get fired, I expect they'll be going the other way.

Unless the US were to acquiesce to Georgia's withdrawl, it seems that it would have to come to armed conflict (or, the people of Georgia using non-violent resistance, but how likely is that for people who are leaving bc of gun regulations?) At that point, it's treason. There is no right to act in self-defense while committing a crime.

We begin the bombing in five minutes.


Uh, is this computer on?

What?


The Democrats want more fairness and fewer bullets.

The Republicans cause a shortage of both.

"But let's not pretend that the posturing itself isn't posturing towards treason, even if it will never occur."

Outright advocating of treason isn't treason, let alone "posturing towards treason."

The Constitution is extremely unambiguous: Section 3 - Treason

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. If someone hasn't levied "War against [the States], or in adhering to their Enemies, giving them Aid and Comfort," they haven't committed treason. Period, end of story.

People engaging in free speech aren't engaging in treason. Period, end of story.

I really wish Typepad wouldn't show blockquotes properly in preview, and then disappear them when it posts.

Krikey. Comes a point where it just gets really hard to try to support this party at all, make excuses, or try to justify anything they do. I start to think, well, maybe they have a point or two here – but then the brain kicks in and screams WTF?

I mean it’s like they get together in a smoke filled room and someone says, “You know what we need? (No – not more cowbell.) We need to let the public see we’re batsh!t insane and then they’ll vote for us.”

I mean, I’m a strong believer in states rights – and those are not “dog whistle words” to me. I believe that localities and state’s rights should govern most of our life. But this?!?!

I’m pretty much left with this

So yeah, I’ll retract most of the arguments I’ve made against GOP=racist the last few years.

(Not that I think Democrats are any better – they have serious issues as well just not the same ones. A pox on both their houses works for me.)

Can we just nuke it from orbit and start over?

i'm curious, ocsteve.

i agree in general that the gop has trafficked far too much in racism.

but what about this issue in particular led you to raise the issue of gop racism? (and the blazing saddles clip in particular?)

i guess i see the nullification and secession movement as having clear historical roots in the antebellum efforts to perpetuate slavery.

but i would have been very reluctant, myself, to look at this particular resolution and say, "see? republicans being racists again!"

it's too far in the background; there are too many other, more charitable explanations; i don't want to cry 'racist' too often, etc.

i get the general, historical connection. but maybe you're seeing a more specific, local one?

The Constitution's been set aside - Why shouldn't they write as people did before it was written? When we get the Bill of Rights back, then we can act like it's the 21st century. Maybe the slave states will come up with something to replace the 1st, 4th, 5th, 6th and 8th amendments. Let a thousand flowers bloom!

Can we just nuke it from orbit and start over?

...What makes you think that's not their plan already?

"MEIN FUHRER! I CAN WALK!"

Outright advocating of treason isn't treason, let alone "posturing towards treason." ....People engaging in free speech aren't engaging in treason. Period, end of story.

Just as obvious as the Constitutional language covering treason is the fact that one's speech can in fact be criminal, even treasonous eg ordering troops to fight against the US military is speech, not actually fighting, yet it is still treason. That is, courts have long recognized that speech can be an action.

Offering an opinion about treason isn't treason, I agree. The thing is, the Georgia state house would not be merely offering an opinion; if this were to pass they would be stating that the US government has no power in their state once certain conditions are met. This is an action- one that claims to usurp federal power.
It is very, very different from Gov.Perry's opinions about secession, which are certainly protected speech.

I think that rebelling against the US government is effectively declaring war upon the US. And (unlike Brett) I've got a precedent.
Likewise, planning to commit treason is a crime- one does not actually have to give the aid and comfort. eg stealing plans with the intent of delivering them to an enemy is treason.
Ergo, planning to rebel against the government of the US is treason. It may be speech, but it is not free.

Now, realistically the Georgia state house has no intent to actually secede- they are posturing, like 8-year-olds threatening to run away from home. And they should be treated as such ie ignored by the adults. My biggest concern here is that it creates a real potential for violence- say, if a anti-gun law were to be passed by Congress, and then eg some sheriff decides he can arrest all of the FBI agents for carrying concealed weapons without permits.

kid bitzer: i agree in general that the gop has trafficked far too much in racism.
but what about this issue in particular led you to raise the issue of gop racism? (and the blazing saddles clip in particular?)

I’m just getting to the point that it’s too hard to make excuses anymore. I don’t have that much creativity in me as a commenter. So more and more, I’m just seeing: “The new sheriff is a {BONG} – ger”.

This nonsense is nothing new. "Unreconstructed" Neoconfederates have been arguing this crap for decades. It was always fun to read their nonsense only to have it slapped down by someone with a constitutional law background and not some parchment from Hillbilly Hanks. These folk think the only parts of the Constitution that are valid are the Second and Tenth Amendments. They never seem to be able to wrap their jellied brains around Andrew Jackson's Force Act or that SCOTUS ruled secession to be unlawful in Texas v. White

I think Joe and I actually agree. Like him, I also consider Jefferson an advocate for judicial review (at least when it suited his political agenda, an inconsistency which applies to most of us). That support is the reason I think he was hypocritical in the KY Resolution; he knew better and he supported better.

I also think that Jefferson himself never meant to undertake a revolution. He likely thought that threatening one would be politically useful. But that was playing with fire, and it got out of control in 1832 and again in 1860.

Note that this resolution ignores the existence of the 14th Amendment. You know, the parts that state "No state shall . . . ", and Section Five, which states "Congress shall have the power to enforce . . ." those things that no state shall do.


I suppose they could at least take the time to argue that the 14th Amendment is unconstitutional because it was passed under the barrel of a gun, when the Southern states were occupied by military imposed governments following the Reconstruction Acts. . .

"Now, realistically the Georgia state house has no intent to actually secede- they are posturing, like 8-year-olds threatening to run away from home."

So they're not, in fact, committing treason. And if they're not, accusations that they are shouldn't be thrown around. Thus my point.

If someone is committing treason, the authorities should be notified, so they can be duly arrested and prosecuted. If they're not, people shouldn't make such accusations.

This applies regardless of the political views of the speaker or the accused. I'm equally annoyed when rightists accuse leftists of treason, or leftists accuse rightists of treason, if they don't have evidence that will stand up in court.

It's unhelpfully inflammatory. People shouldn't make charges that won't stand up.

It also is a matter of crying wolf.

I’m just getting to the point that it’s too hard to make excuses anymore.

My sympathies. I reached that point in 2002, when Trent Lott said "if the rest of the country had followed our lead [in voting for Strom Thurmond on a segregationist platform], we wouldn't have had all these problems over all these years, either." I didn't really care whether this was actual racism or, as seems slightly more likely, callousness and stupidity. Neither option was good.

It was upsetting to reach that conclusion, because I had spent the last ten years conscientiously trying to look at issues from both sides and avoid knee-jerk liberalism. I felt like it was all a waste: the GOP really was just as bad as my parents thought.

The party has only gotten worse since then, unfortunately.

Ok, finished reading the resolution. Georgia is not threatening to secede. They're asserting that, since the federal government only has a claim to power on the basis of the Constitution, that if it violates that constitution in a sufficiently gross and deliberate manner, it voids the deal that made it, and ceases to exist.

I think it's a valid argument, but arguments don't deflect bombs, and the federal government's power is not, in fact, based on the Constitution. Hasn't been since the civil war. It's based on having an army that can beat the crap out of any plausible coalition of state governments.

On the other hand, some of the acts which Georgia asserts would dissolve the federal government are so nasty, that I wouldn't rule out the possibility that the military might not agree with the reasoning.

Not an issue to push to the breaking point lightly, though.

"if it violates that constitution in a sufficiently gross and deliberate manner"

"some of the acts which Georgia asserts would dissolve the federal government are so nasty"


sure: gross, deliberate and nasty violations would fit georgia's notion of what makes the constitution go 'poof!'.

and those are also the ones that they highlight, for rhetorical reasons.

but they also introduce them by saying, "Acts which would cause such a nullification include, but are not limited to:"

so that they are pretty much saying, "the cases in which we can take our ball and go home include, but are not limited to, whenever we feel like it, or whenever you hurt our feelings."

i also do not see any grounds for saying "it's a valid argument". what is valid about it? if the federal govt makes a bad law, then that law is unconstitutional, and should be found so by the courts.

that particular law. not the entire framework. there is no justification for saying that any violation of the constitution would cause the nation to cease to exist, and i do not see that any "valid argument" has been presented for that preposterous claim.

In view of Georgia's venture into anti-Americanism, it might e profitable to read http://teachingamericanhistory.org/library/index.asp?document=67>Andrew Jackson's Nullification Proclamation. While it dealt with South Carolina, Jackson's points still seem pretty cogent to me.

And who judges whether the federal government has violated the Constitution enough so that people can ignore federal law?

We've been here before; not in the 1860s, but in the 1950s and 60s during the Civil Rights movement. Mississippi's Gov. Barnett claimed the power of "interposition" to prevent James Meredith from attending Ole Miss. Gov. Faubus acted similarily to prevent the integration of Central High School in Little Rock, using state troops to block access to the school.

My sympathies. I reached that point in 2002, when Trent Lott said…

Well, he was condemned fast and furious from the right. There was a huge outcry from the right. These days? Ack!

Kid, what do you want, an exhaustive list of possible gross violations of the Constitution? I don't think that's possible.

Okay – now why is my formatting and links gone after a couple of hours? I can tell by replies that the link was good for other folks at some time, and the formatting just disappeared for me in the last five minutes.

I’m a programmer – I have a hard time believing that someone writes code to “wait a couple of hours and then strip out HTML tags”.

WTF?

David? Where are you at in moving this to a new architecture? Need a hand?

agreed: given human ingenuity, someone will always be able to come up with a new gross violation that was not on the list. (poking a badger with a spoon!)

no, what i want is
1) any reason to think that they will not include trivial and ridiculous violation as well as the gross ones; and
2) any argument why a law in violation of the constitution would have consequences beyond the law's own nullification.

here in america, when a law is found to be unconstitutional, it is repealed or revoked or found to have no force. it is not taken as an excuse for pretending that the constitution just went 'poof!' and the federal government doesn't exist any more.

but apparently some folks in georgia don't like how things work in america. i'm just glad they don't pretend to be loyal patriots or anything.

Would you believe somebody writes code that responds to bad html by being a little too indiscriminant about which comments it strips the html out of? That's my guess.

"Okay – now why is my formatting and links gone after a couple of hours?"

Sometimes the formatting appears and disappears depending on how many times one refreshes the page. Other times Typepad simply disappears one's formatting, including links, altogether. Naturally there seems to be no pattern or logic to the differing behavior.

Why is ObWi still using Typepad? I keep asking this, and getting no response.

"...by being a little too indiscriminant...."

That's not very cromulent.

I’m a programmer – I have a hard time believing that someone writes code to “wait a couple of hours and then strip out HTML tags”.

WTF?

David? Where are you at in moving this to a new architecture? Need a hand?

Given that the median job of a commenter on this site involves developing software it is kind of sad that the technology of the site itself compares poorly to GeoCities circa 1999.

There are plenty of people here that would be glad to help set up something better or build it from scratch if need be.

Or just use freaking free Blogger, which works perfectly fine, as I've pointed out some dozens of times.

So they're not, in fact, committing treason. And if they're not, accusations that they are shouldn't be thrown around. Thus my point.

But their actions with this bill would be treasonous if actually implemented. The only difference between treason and this is that we *suspect* that they're not willing to implement what they claim to want to implement.
But they're not joking either, in the sense of kidding around. And because they aren't joking, and because they could pass a law seceding from the United States, this is a very serious matter.
If two people agree to rob a bank and start eg prepping the getaway car, buying the dynamite, getting a copy of the blueprints, then they're guilty of conspiracy to commit bank robbery. There's no exception for "yeah, but Frank's a good guy, he was probably just showing off for his brother and likely would've backed out at the last minute." Frank goes to jail.

Question: Would you agree that is it treason to actually plan and implement a secession? If so, what's the difference between that and what's going on now?

If someone is committing treason, the authorities should be notified, so they can be duly arrested and prosecuted. If they're not, people shouldn't make such accusations.

And if they passed this law, I would recommend that option. Im probably in the minority on that, but Im a rule-of-law kind of guy. I admit that the political calculus suggests that the safer course is just laughing it off as a stunt though.
This reminds me of the time Jesse Helms threatened President Clinton ("[President Clinton] better not show up around here [Fort Bragg] without a bodyguard")- they ought to have landed on him like a ton of bricks, as they would for any ordinary citizen who threatened the President. Political calculus again.

Ok, finished reading the resolution. Georgia is not threatening to secede.

How many angels can dance on the head of that particular pin? "I'm not breaking the contract, I've decided that the contract isn't in force any more". "I am not stealing your car, I have decided that the car belongs to me now." "I am not getting a divorce, I have merely decided that our marriage no longer exists".

I think it's a valid argument, but arguments don't deflect bombs, and the federal government's power is not, in fact, based on the Constitution.

So you imagine a time- any time- in history when the final factor of the controlling authority was not military force?

"But their actions with this bill would be treasonous if actually implemented. The only difference between treason and this is that we *suspect* that they're not willing to implement what they claim to want to implement."

It's the difference between doing something and not doing it. That tends to be significant.

I haven't even bothered to point out the difference between a resolution and a law.

now_what: There are plenty of people here that would be glad to help set up something better or build it from scratch if need be.

In what’s sort of become a tradition here – let me note that I agree with you for once. ;)

It's like they're teasing me. Hey Georgia, if you want to secede, just do it already! Nothing would please me more!

What a strange combination of hubris and impotent existential panic.

It's the difference between doing something and not doing it. That tends to be significant.

It's the difference between doing something and meaning it and doing the same thing while not actually meaning it. The "doing something" would be passing a bill seceding from the union. Whether or not they "really" mean it or it's a political stunt- that's a fine line to walk when we're talking about treason.
You didn't answer my question earlier- if they *did* mean it, would it be a crime? And, if so, how do we decide that they don't?

I haven't even bothered to point out the difference between a resolution and a law.

Perhaps you would be bothered to learn that there is a difference between a "resolution" and a "non-binding resolution"- at least, I think this is what you are driving at. from Wikipedia:However, a legislature also uses resolutions to exercise one of its binding powers that isn't a lawmaking power. For example, the United States Congress declares war or proposes constitutional amendments by adopting a joint resolution. A house of a legislature can also use a resolution to exercise its specific powers, as the British House of Commons does to elect its Speaker or as the United States House of Representatives does to impeach an officer of the government.
I don't see any indication that this is intended as a non-binding resolution; the language near the end certainly suggests that it is intended as an active statement rather than merely offering an opinion.
(But IANAL, perhaps one of the attorneys would care to comment).

Perhaps you would be bothered to learn that there is a difference between a "resolution" and a "non-binding resolution"- at least, I think this is what you are driving at. from Wikipedia:However, a legislature also uses resolutions to exercise one of its binding powers that isn't a lawmaking power. For example, the United States Congress declares war or proposes constitutional amendments by adopting a joint resolution. A house of a legislature can also use a resolution to exercise its specific powers, as the British House of Commons does to elect its Speaker or as the United States House of Representatives does to impeach an officer of the government.
I don't see any indication that this is intended as a non-binding resolution; the language near the end certainly suggests that it is intended as an active statement rather than merely offering an opinion.
(But IANAL, perhaps one of the attorneys would care to comment).

My comment would be that either the Georgia legislature has the power to enforce this, and it is binding, or it does not have the power, and it is therefore not binding. If they have the power, it is not treasonous because they have the authority. If they don't, then it is nonbinding.

It is hard to see how there can be a binding resolution where there is no authority, and how there can be an illegal or treasonous one where there is authority.

So pretty much this is either nonbinding or authorized. You can't bind without authority.

If they have the power, it is not treasonous because they have the authority.

Power and authority are not at all the same thing.

It is hard to see how there can be a binding resolution where there is no authority, and how there can be an illegal or treasonous one where there is authority.

So they could pass a resolution explicitly calling for armed revolt without consequence?

So pretty much this is either nonbinding or authorized. You can't bind without authority.

Is not revolution exactly such a claiming of authority? Or, not all claims of authority are revolutionary, but certainly all revolutions involve claiming powers/rights previously held elsewhere.

"1) any reason to think that they will not include trivial and ridiculous violation as well as the gross ones;"

Well, I'm reasonably certain that it will include violations some people HERE would view as trivial and ridiculous. Which is only to say that a lot of the comentors here are in favor of grossly violating parts of the Constitution they don't like.

Alas, the Georgia legislature is also in favor of grossly violating some parts of the Constitution. I doubt they're going to declare the federal government a nullity over the war on drugs, for instance, though it has no real constitutional basis.

"and
2) any argument why a law in violation of the constitution would have consequences beyond the law's own nullification.

Consider the Constitution as a contract. You make a contract with a lawn service to keep your lawn up for the next six months. The first week they come by and spray your daisies with Roundup. The next week they send somebody around to girdle your prize 30 year old Japanese maple. On the third week their employee hotwires your car and drives off with it.

You're really obligated to keep them on as your lawn service for the next six months?

I think it's pretty standard that the other party to a contract can't hold you to your end, if they don't deliver on their end. The Constitution is a bargain to create a limited government, if the government in question isn't observing those limits, it's end of the bargain is not being delivered, and it can't claim that constitution as a basis for existing.

OTOH, as I say, while in theory the authority of the federal government is rooted in the Constitution, and exists only as long as, and insofar as, it obeys that Constitution, in reality it's rooted in the military, and exists so long as that military is able and willing to kill anybody who'd dispute it.

Which is why the nature of the violations is important. It's just barely possible that if states start declaring "game over" over something really, really atrocious, and the military gets the order to invade, they'll decide they're on the wrong side of things.

So the states making these resolutions have a pretty strong motive not to invoke them for any light cause.

Brett, that is a point of view that many people have. That does not necessarily make it the correct point of view. I would recommend that you use phrases like "in my opinion" instead of declarative statements.

"Which is only to say that a lot of the comentors here are in favor of grossly violating parts of the Constitution they don't like."

Probably. Who are these people and would you include yourself among them? Based upon some of your comments in the past, some of the commenters here might view as as in favor of gross violations of the Constitution you don't like.


well, john, i take pretty much every declarative statement i read on the web as implicitly prefaced by "in my opinion". hardly needs to be said.

brett, i take the following to have a certain plausibility:

"That whenever any form of government becomes destructive [of the people's rights], it is the right of the people to alter or to abolish it"

(there i go, plagiarizing tj myself).

but that refers to a very general right of people to rebel against tyranny. if the federal govt. acts in such a way that the people rebel, then the people can dissolve the govt.

but it does not mean that states have any say in the matter. the states are quite irrelevant to the question, and have no standing that would allow them to declare the govt dissolved.

as the preamble says, the constitution and the federal govt it codifies are the creation of the people, not of the states.

states in the u.s. have never been anything but petty fiefdoms who flex their muscles to oppress the people--generally minorities-- within them.

the southern states, and all advocates of states rights, have proved this over and over.

I think that the people are hardly going to be able to rebel against tyranny, if they have to do it exclusively as individuals, rather than doing so through some existing organization... such as a state government.

"states in the u.s. have never been anything but petty fiefdoms who flex their muscles to oppress the people--generally minorities-- within them."

Yeah, that's pretty much true to the same extent that the federal government has never been anything but a BIG fiefdom that flexes it's muscles to oppress the people. We're talking the basic nature of government here, after all: It's a not all that evolved protection racket.

help help
i'm being oppressed.

What a strange combination of hubris and impotent existential panic.

Patrick wins the thread.

"We're talking the basic nature of government here, after all: It's a not all that evolved protection racket."

not surprising to hear this, since it's the standard libertarian blather.

and it is certainly true that some govts do oppress people.

but people also create govts in order to resist oppression from a range of non-governmental actors, who would all be there even if govts disappeared tomorrow: corporations, the wealthy, warlords, roving bands of smug libertarians, etc. etc.

bad govts are those that do more oppressing than the private oppression they resist. good govts are those that produce a net reduction in oppression.

and by this metric, the u.s. federal govt has consistently been closer to a good govt than most of the individual states have been. it has more often sided with the oppressed--child laborers, say, oppressed by mine-owners--than the states have.

sometimes, not often, individual states have led the way on this or that topic. e.g., oregon has attempted to reduce oppression in drug laws and in end-of-life laws.

but of course, that's when the 'states-rights' advocates in the republican party tip their hands by overriding oregon law.

no, wrt the legalized oppression of individuals, the federal govt has a far better track record that the states do. and it got much better after the civil war, and better still during the new deal, and better still during the civil rights era. each of which improvements was staunchly resisted by 'states rights' advocates.

Treasonous a-holes.

The Civil War memorial in Lowell is a wing'ed Nike, holding aloft a laurel wreath, as if to place it on the brow of downtown.

Hey, wingnuts: don't MAKE me come down there!

Consider the Constitution as a contract. You make a contract with a lawn service to keep your lawn up for the next six months. The first week they come by and spray your daisies with Roundup. The next week they send somebody around to girdle your prize 30 year old Japanese maple. On the third week their employee hotwires your car and drives off with it.

You're really obligated to keep them on as your lawn service for the next six months?

In addition to kid bitzer's excellent points, I'd add the following:

1. According to its own terms, the Constitution is not a contract, it's a law ("the supreme law of the land").

2. Assuming it is a contract, the parties are the people of the US, not the states. This was held in McCulloch v. Maryland and affirmed in Grant v. Lee.

3. The "contract" contains a mandatory arbitration clause. Parties can't just walk away, they must use arbitration first.

The weird thing about the 'protection racket' argument is that the government is us. We the people could, if we wished, abolish all taxes, dismantle the schools, and repeal gun-control laws. The government doesn't have us taken out and shot if we vote for these things, or if we support libertarian candidates. The fact that people do not vote for such things is not a function of the evil, shadowy hive-mind Government. It's a result that libertarianism is a boutique philosophy that largely appeals to antisocial white guys, and they haven't figured out how to package it for a wider audience.

The weird thing about the 'protection racket' argument is that the government is us.

Yes. It takes "otherization" to a ridiculous level.

It's most obvious at the local level. "Help! Help! They're oppressing us!" "Um, Joe...they were begging for volunteers, and I drew the short straw...."

"states in the u.s. have never been anything but petty fiefdoms who flex their muscles to oppress the people--generally minorities-- within them."

This is wildly ahistoric. State constitutions in many cases go well beyond the federal constitution in protecting people's rights, and thus have often extended protection of the rights of individuals long before the federal government has, as have their legislatures. Developments such as the right of women to vote, the elimination of slavery, the eliminating anti-"miscegenation" laws, and duh, gay marriage, are just four of the most obvious cases.

As Justice Louis Brandeis famously wrote: "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment.*fn57 We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold."

The claim that states' rights have been used only to oppress is simply wildly ignorant and wrong.

yes, gary, thank you, very good. for anyone out there unfamiliar with the phrase "laboratories of democracy," i'm sure your comment will be extremely illuminating.

and if anyone did not read my references to oregon's attempts at experiments in liberalization above (vis a vis drugs and end of life), and thought that every effort on the part of the states is retrograde, then your references to gay marriage will also be extremely illuminating.

(it's a good case, and i should have cited it--especially because it shows how the conservative 'states rights' types instantly responded to the threat of state-level liberalization with the federal doma laws.)

we're all grateful to you for making these points.

now: would you like to address proportions and preponderances? on the whole, and in proper, non-ignorant, historic lights, have the most vocal advocates of "states rights" been more often the champions, or the oppressors, of the rights of minorities?

take your time--bull connor will be in that doorway all day.

"This is wildly ahistoric."

That's part of what I was trying to point out. You know, I really hate the concept of government, and really do think that it's just an evolved protection racket, but the idea that states have "never" been anything but blah blah blah? States are governments just like the federal. They're the same sort of thing, and at neither level are they entirely evil.

"now: would you like to address proportions and preponderances? on the whole, and in proper, non-ignorant, historic lights, have the most vocal advocates of 'states rights' been more often the champions, or the oppressors, of the rights of minorities?"

Depends on context. Certainly "states' rights" has been famously used since Reconstruction to defend the "right" to oppress, but that wasn't the question I was addressing, but rather your specific assertion that I quoted. That you now seem to acknowledge that it was wrong means I need no longer dwell on the point.

Mind, kid bitzer, I meant no disrespect. I highly value you and your comments. I merely suggested that in your enthusiasm for your point, you overstated your case, thus resulting in wrongness on the internet, and we can't have that, now, can we?

That's all. Carry on.

oh--well if it's the rhetorical excess that you're objecting to, then i completely agree.

i loathe and abhor all rhetorical excess, and avoid it as the most pernicious plague known to mankind. and i myself never use it. ever.

but look: how often have these "laboratories of democracy" really functioned as such? that's the point of the proportion question; if you are going to defend states rights in these terms, how much substance lies behind *that* rhetorical excess?

i should also say that i think the states have a better record than do the advocates of 'states rights'. is the legal suicide your isssue? cool; we can probably talk. but if you tell me that 'states rights' itself is your issue, don't be surprised if people assume that what you care about is the same thing most 'states rights' advocates have historically cared about, namely the right to oppress blacks.

and thank you for the p.s., gary, which was uncommonly civil.

i myself always think of you as a stand-out among bloggers, and a prince among men.

Brett,
Consider the Constitution as a contract. You make a contract with a lawn service to keep your lawn up for the next six months....I think it's pretty standard that the other party to a contract can't hold you to your end, if they don't deliver on their end.

You missed a step. You would go to a court, and the court would impartially decide whether you had cause to break the contract or what other steps should be taken to rectify the situation. Or, you would stop payment and they would take you to court to attempt to force to you comply with the contract.
But in your scenario, one of the parties just decides that they think the contract isn't in force. That isn't how it works in civil situations, nor here.
I understand that your odd view that your opinions on eg Constitutional interpretation should be regarded as the single, indisputable interpretation leads you to some peculiar conclusions, but certainly you understand that you have to go to court to break contracts, you do not merely send them a letter stating: "I am Brett Bellmore. Surely, you are antiquated with my fame as the single impartial arbiter of the meanings of legal statements. Ergo, you will understand when I tell you that our contract is hereby invalid, and you have no recourse."

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