Constitutional Corner – Sanctuary Cities and the Constitution

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On January 25, 2017, Donald Trump carried through on a campaign promise and signed Executive Order 13768[1] which declared sanctuary jurisdictions across the United States to be in willful violation of Federal law. Attorney General Jeff Sessions promised to enforce it.[2] Section 2(c) of the Order sets out to ”ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The Order also contained a list of types of illegal aliens that are to be “promptly” deported. These include aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense, where such charge has not been resolved;
  • Have committed acts that constitute a chargeable criminal offense;
  • Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
  • Have abused any program related to receipt of public benefits;
  • Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
  • In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

In response, the list of U.S. cities declaring that they are sanctuaries, which began growing even during the Obama administration, increased dramatically. There are now estimated to be nearly 300 such cities, counties and even states[3] that have made such declarations. Several states are offering illegal aliens state driver’s licenses. Going one step further, Chicago offered “undocumented” immigrants money for legal fees to fight federal deportation. To see if your locality is a sanctuary, the most well maintained list I’ve found is here.[4]

So what are we to make of sanctuary cities and, if California carries through on its recent threat: sanctuary states?

There is nothing unlawful[5] in a city declaring itself a sanctuary city; the declaration is not the problem, the actions which may follow are. Usually, all a sanctuary city is asserting is that their city’s resources will not be utilized in helping the federal government enforce federal law, something the Supreme Court has said the federal government cannot force a state or city to do (refusing to cooperate is called “anti-commandeering”).[6]

However, it is a federal felony, punishable by five years in prison for each violation, for any person to conceal, harbor, or shield from detection any illegal alien. The word “harbor” is defined as any conduct that tends to substantially facilitate an alien’s remaining in the U.S. illegally.

The Supreme Court rejected arguments (in Reno v. Condon) that a state or local government’s refusal to supply information requested by the federal government should be protected. Providing requested information was not seen by the court as “enforcing” a federal statute.

Furthermore, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act prohibited any Federal, State or local government entity or official from restricting any other government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”[7] To get around this, sanctuary localities make it a point not to determine an apprehended person’s immigrant status; they can’t provide information they don’t have, right? Sort of “Don’t ask, don’t … ask?”

So it appears the sanctuary cities do not have much legal “wiggle room.” They can’t be forced to detain individuals at INS request; they can’t be forced to apprehend illegal immigrants who have committed no other crime, but that’s about it. They can be prosecuted for refusing to provide information on aliens in their custody, and they can be prosecuted for shielding aliens they do apprehend, provided they know the alien’s status.  But can the federal government withhold funds solely on the basis of a sanctuary declaration?

As a Reuters study points[8] out, there is a lot of money at stake; tens of billions of dollars.  Here’s a chart[9] that will put the funding in perspective for you.

The problem for Mr. Trump is that in some cases Congress expressly authorizes specific amounts to specific locations, in others the Executive branch is given great discretion in terms of where and how the funds are to be allocated. Some examples of programs where funds could conceivably be cut: the Community Oriented Policing Services program (COPS) provides grants to pay for school resource officers; the Edward Byrne Memorial Justice Assistance Grant Program (JAG) funds a variety of state and local law enforcement expenses, including court, crime prevention and education programs; the State Criminal Alien Assistance Program (SCAAP) funds a program that helps local police departments with incarcerated undocumented immigrants fund their corrections facilities and the salaries of their officers.

Faced with the potential loss of critical law enforcement funds, some localities have had second thoughts or have even reversed an earlier declaration.  Other localities have protested vigorously when their name has shown up on a sanctuary list.

If it weren’t for America’s history regarding slavery, the sanctuary issue would be much simpler.

The Constitution states[10] that: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” A 1793 law made it a crime for slaves to escape from a slave state to one where slavery had been banned. Finally, the Fugitive Slave Law of 1850 expanded the authority of federal law enforcement officials in apprehending fugitive slaves. As a result, the Underground Railroad[11] was born.  As many as 100,000 escaped slaves may have been “transported” to freedom.

Are today’s sanctuary cities and the Underground Railroad morally equivalent? Is a fugitive slave the same as a fugitive illegal immigrant? Some think so; I think not. The slave did not choose his slavery (although he did choose to escape), the immigrant chose to enter the country illegally or overstay his visa.

While harboring a fugitive from justice is often claimed to be an act of conscience, as we have seen, it is also illegal and the offender is subject to prosecution. Because of this, Catholic churches have been urged[12] to use caution before leaping into the sanctuary pool. As lawyer and Jesuit Father Bryan Pham points out in On Becoming a Sanctuary: Five Points For Catholic Institutions To Consider: “The housing of undocumented people is not necessarily covered under the First Amendment.”

Some in the sanctuary movement, members of other Christian denominations, point to the “cities of refuge” discussed in the Bible:[13] There it says: “Speak to the people of Israel and say to them, ‘When you cross the Jordan into the land of Canaan, then you shall select cities to be cities of refuge for you, that the manslayer who kills any person without intent may flee there.’ The cities shall be for you a refuge from the avenger, that the manslayer may not die until he stands before the congregation for judgment.” (Emphasis added)

Notice that refuge cities were established for one circumstance: inadvertent manslaughter.  Any “run-of-the-mill” criminal could not claim refuge. Even an inadvertent manslayer could claim refuge only until a trial was conducted (or the High Priest died before a trial could be conducted).

Some Christian churches in America have a long history[14] of receiving and housing true refugees from oppression, at times even smuggling them into this country. The problem here is determining who are the true refugees from violence or oppression and who are simple economic immigrants; how do you determine who is which? Illegal immigrants know exactly what to say if/when they are apprehended?  Even then, the smuggling of true refugees remains a problem.

Pointing to their “venerable role in human history,” Associate Professor of English at UC Irvine, Elizabeth Allen, pleads in an LA Times OpEd[15] that sanctuary cities must continue to exist since they have “long been an escape valve for society.” “The sanctuary cities of the 2000s are part of this American tradition.” Tellingly, Professor Allen wastes no ink recounting the economic effect of illegal immigration.[16]

I think the religious or moral case for providing sanctuary to illegal immigrants is very weak, and thus far I haven’t noticed anyone trying to make a Constitutional case for sanctuary cities, perhaps there’s a lesson there.

“Sanctuary Cities” sounds all lofty and moral, and may even give some citizens a warm-fuzzy that they are “doing their part for the oppressed.” But if you are an official in such a city, don’t be surprised if you are prosecuted for harboring aliens, and don’t complain if you’re incarcerated for doing so. Just saying.

[1] https://www.federalregister.gov/executive-order/13768.

[2] www.washingtontimes.com/news/2017/mar/27/jeff-sessions-says-hell-punish-sanctuaries-cities.

[3] http://www.washingtonexaminer.com/map-over-200-sanctuary-cities-in-32-states-and-d.c./article/2567880.

[4] http://www.ojjpac.org/sanctuary.asp.

[5] https://townhall.com/columnists/judgeandrewnapolitano/2016/12/08/are-sanctuary-cities-legal-n2256429.

[6] In Prigg v. Pennsylvania (1842), the Court ruled that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. In Printz v. United States (1997) the Court ruled that localities could not be forced to administer part of a firearm background check program.

[7] 8 U.S.C. § 1371(a).

[8] https://www.alipac.us/f12/reuters-largest-10-%91sanctuary-cities%92-may-lose-%242-27-billion-federal-funding-342683/.

[9] http://tinyurl.com/kpj3ra7.

[10] Article 4, Section 2.

[11] https://en.wikipedia.org/wiki/Underground_Railroad.

[12] https://www.ncronline.org/news/justice/becoming-sanctuary-five-points-catholic-institutions-consider.

[13] Numbers 35 (and other scriptures).

[14] http://99percentinvisible.org/episode/church-sanctuary-part-1/.

[15] http://www.latimes.com/opinion/op-ed/la-oe-allen-sanctuary-cities-20150917-story.html.

[16] https://en.wikipedia.org/wiki/Economic_impact_of_illegal_immigrants_in_the_United_States.

The Constitution’s Week in Review – 30 Apr 2016

Article 2:  Qualifications of the President.

The Constitution is not a terribly complex document: seven articles and twenty-seven amendments.  At most, it takes perhaps a half hour to read.  Jim VandeHei, owner of the website Politico, says in a Wall Street Journal article[1] this week: “I have spent the past two decades in the Washington, D.C., bubble—the heart of Establishment America—covering politics and building a company, Politico, focused solely on politics.”  Apparently none of that political immersion required Mr. VandeHei read the U.S. Constitution.

One of the most basic pieces of constitutional information concerns the qualifications for elected office: Representatives must be 25 years old, Senators 30 and the President 35.  Representatives must have been a citizen of the U.S. for 7 years, Senators for 9 and the President a “resident” for 14.  See the progression meant to ensure increased experience and maturity in each office of higher responsibility?  These criteria are not that hard to remember once you’ve been exposed to them.  Mr. VandHei has not.  Yet despite his ignorance he plunged into the fray to promote Mark Zuckerberg, age 31, Gazillionaire owner of Facebook, as a potential third-party candidate for president.  The “good news” is that Zuckerberg will be eligible by 2020.

I’ll be sending Mr. VandeHei an invitation to attend my next seminar, absolutely free of charge, in Norfolk on May 21st (sponsored by Concerned Veterans for America; and its absolutely free to everyone, not just Mr. VandeHei, sign up here[2]).

Article 2:  Abuse of Executive Power.

We had a great time discussing this topic Friday on We the People, The Constitution Matters.  The podcast has already been posted[3] for your listening and/or download pleasure.

Article 5: Amending the Constitution.

March 23, 1971, was the last time Congress proposed an amendment to the U.S. Constitution and sent it to the States for ratification (the 26th).  That was 45 years ago (warning: math in public).  That 45 year period is not the longest we have gone without amending the document (from the 12th Amendment in 1804 to the 13th in 1865 was 61 years) but the current period recently moved into second place (the 15th Amendment was ratified in 1870 and the lovely 16th Amendment in 1913: 43 years).  Many say the Constitution is long overdue for an “upgrade.”

Washington has grown into a bloated, tyrannical, bankrupt mess, thanks to the “Supreme” Court’s successful demolition of the Constitution’s original limits.  Today we “enjoy” a federal government that “can do most anything in this country” (thank you Representative Peter Stark for those honest words).  Electing better representatives will not fix this mess; the vast majority of potential representatives have no idea what the root problem is or what needs fixing.  Nullification will not fix this; nullification is at best a temporary, limited measure.

The problem is the plenary power of the federal government and the only way to fix that is to restore what Jefferson called “the chains of the Constitution.”  Those “chains” no longer exist, but could be restored with targeted amendments.

Will Congress ever take on the task of reining in their own power, imposing fiscal restraints on themselves, imposing limits to the number of terms they may serve or the terms of federal judges?  Clearly, No!  We will wait in vain for such changes, each time hoping that maybe the next election will provide us a glimmer of hope.  Such “romantics” delude themselves.

This week, Oklahoma became the seventh State to realize that waiting for Congress to act is a pipe dream.  The Oklahoma legislature passed a resolution[4] calling for a convention under Article 5 of the Constitution, joining Florida, Alaska, Georgia, Alabama, Tennessee and Indiana.  Only 27 more states to go.

If you have a better plan to fix Washington, I’d like to hear it.  And by “plan” I mean an actual plan; you know, something that has been committed to paper, with funding, personnel, a timetable and an actual chance of success.  That’s what I call a plan.

While you contemplate what you can do to support the Convention of States effort, please enjoy this short video[5] explaining the federal government’s view of the debt limit.

First Amendment:  Establishment Clause.

Can a church be given state grant money to upgrade its playground equipment as are secular organizations?  At issue is the safety of children at play, at least that was the purpose of the grant program, certainly not the establishment or advancement of religion.  But objections were raised about violating the “Supreme” Court’s contrived “Wall of Separation” doctrine.  Apparently this doctrine trumps the safety of a church’s children. The Court has agreed to hear Lutheran Church v. Pauley[6] and is accepting amicus curiae briefs, such as one recently filed by the Family Research Council[7], to prepare them for oral arguments, not yet scheduled.  If you’ve never read amicus briefs, you should.  Read at least one from each side of the argument.

Meanwhile, in the states:

Civil Asset Forfeiture.  Carrying large amounts of cash is becoming evidence of a crime in this country, so be careful when you do so.  Some Sheriffs have called civil asset forfeiture “pennies from heaven.”[8]  I call it highway robbery.  You should not need an excuse to carry cash, even large amounts if you want to.  But time after time, citizens and foreign visitors get caught up in this thievery.  Sometimes there is a happy ending, as in this article[9] about a Christian musician who had $53,000 seized because it was “evidence of drug dealing,” Right.  Couldn’t be anything else?  Civil Asset Forfeiture Laws[10] should be removed from the law books of each state.  Do you know what the situation is in your state? Update: Nebraska and New Mexico recently passed laws that prohibit civil asset forfeiture until a conviction has been obtained.

As a side note: be sure you know your rights concerning warrantless searches of your car on a public road.  In this case I’m certain the police preyed upon the good nature of a Christian musician unfamiliar with the law.  Unless a drug dog alerts at the side of your car or the police can see clear evidence of illegal goods or activities through the car windows, they must first obtain a warrant to conduct a search.  Don’t know your rights?  See the seminars discussed below.

Speaking of Constitutions, I’ll bet some of you didn’t know we have a Constitution Party[11] in this country.  It’s been around since 1992 and it secured a whopping 122,388 votes for its presidential ticket in 2012, partly because only about 50% of the country’s voters even saw the party nominees appear on their state’s ballot.  Their 2016 candidates, Darrell Castle for President and Scott Bradley for Vice-President, will appear on only 23 state ballots this November.  Check out the party’s platform[12] and see if you could subscribe to it.

Upcoming Events:

Lessons in Liberty.  If you read Mr. VandHei’s criteria for a presidential candidate in the first article I linked to, you may have finished feeling “Isn’t there more we want in a president than that he or she ‘be authentic and capable of having a rolling, candid, transparent conversation with voters on social and conventional media?’”  On May 16th join us to hear Dr. Jim Davids speak on “Choosing Godly Representatives,” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  $10 either way.  Register at http://www.face.net/.

Constitution Seminar in Norfolk, VA.   Hampton Roads residents can learn what their Constitution says and means by coming to a CLI Saturday Seminar on 21 May sponsored by Concerned Veterans for America.  The seminar will be held from 8:30am-5:30pm (note new times) at the VFW Post 4809, 5728 Bartee St, Norfolk, VA 23502 (next to Military Circle Mall).  There is no charge for this event, but pre-registration is required through this Eventbrite link. Participants will receive a 150-page Student workbook, Pocket Constitution, and lunch.  There is no better deal around.  In an 1820 letter to William C. Jarvis, Thomas Jefferson wrote: “The people themselves,… their discretion [informed] by education, [are] the true corrective of abuses of constitutional power.”  This class will equip you to identify and correct those abuses.

Constitution Seminar in Williamsburg, VA.  Hampton Roads residents will have a second opportunity to learn what their Constitution says and means by coming to a CLI Saturday Seminar on 11 June in Williamsburg, VA.  The seminar will be held from 9:00am-6:00pm at a location to be announced shortly.  Participants receive a 150-page Student workbook, Pocket Constitution, lunch and a chance to win valuable door prizes.  The seminar will cost $40 per person, but registrations prior to 7 June receive a $10 discount.  Due to venue size, this seminar is limited to 10 participants.  Pre-registration is required via email to gary@constitutionleadership.org.

Constituting America continues to post new essays in their 90-Day Challenge.  Hope you are enjoying this peak into American history.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc.  To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

[1] http://www.wsj.com/articles/bring-on-a-third-party-candidate-1461624062

[2] http://cli-cva-constitution.eventbrite.com/

[3] http://www.1180wfyl.com/podcasts.html

[4] http://www.tulsaworld.com/news/capitol_report/oklahoma-joins-call-for-convention-of-the-states-on-balanced/article_d11daf38-96e8-51b2-bf29-0f991a27a0ce.html

[5] http://www.conventionofstates.com/video_managed_debt_like_the_federal_government

[6] http://www.scotusblog.com/case-files/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/

[7] http://www.christiannewswire.com/news/5329877775.html

[8] https://www.youtube.com/watch?v=ipHUN-xLLms

[9] http://dailysignal.com/2016/04/25/police-seized-53k-from-christian-band-fundraised-for-orphanage-school/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5&mkt_tok=eyJpIjoiTVRVek9UYzVZMkl4WkRNNSIsInQiOiIzNktPeGE4ZW5JSDl0UURwalY0a1wvVEhsT2ttVEJwQUJlS2ZNdTU4UnhJWnpmVHZmVmxNQUZUemR6WllqTmhkSUJBSHlKcjA1NmRScSt5Rk9wYVZESUVxRnczbGI0RXJNd2cyMGxjZUhPM001U2tMcVRMYlJnd1wvQm1Hb1F4UUxwIn0%3D

[10] https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States

[11] http://www.constitutionparty.com/

[12] http://www.constitutionparty.com/our-principles/platform-and-resolutions/

The Constitution’s Week in Review – 27 Feb 16

Constitution – General.

Here’s a recording of a webinar I presented on 22 February for Christian Financial Concepts. The topic: “Which Constitution? America’s Critical Choice.” CFC’s website holds a vast library of recorded webinars on a variety of topics. Take a look; we all have much to learn.

Article 2. Natural Born Citizen Clause (to be continued until it is definitively settled).

Amazingly, I have nothing new to report this week.

Article 3. Replacing Scalia

It’s interesting what people find in video archives. Here’s future Vice-President Joe Biden in June 1992, which I remind you was right in the heart of the presidential election between incumbent George H. W. Bush, and challengers Bill Clinton and H. Ross Perot. Biden argued that during a period of divided government (i.e. different parties in control of the Congress and White House) the President should be as interested in the “advice” of the Senate as much as he is its “consent” over Court nominations. Biden complains of President Reagan trying to cast the Court in his ideological mold. He insists that the Senate retains a right to investigate the ideological frame of a nominee. He insists the senate has no obligation to confirm any nominee of the President. He complains that the President’s desire to create an ideological court is an “original sin.” He complains about using Roe v. Wade as a litmus test for assessing a nominee. He affirms (starting at 38:17) the tradition of not confirming a nominee during a presidential election   He confirms twice (at 39:00 and 41:11) that no justice has ever been confirmed in the summer or fall of an election year. While Biden points out that in our history only five Justices have been confirmed during an election year (when their vacancies occurred very early in the year), “Senate consideration of a nominee [for a vacancy that occurs in the summer or early fall of an election year] is not fair to the President, the nominee, or to the Senate itself.” Amazing stuff, these old videos.

Names are starting to pop up (or be leaked) concerning Scalia’s replacement. The name at the top of a list I recently came across (see next item) is Judge Sri Srinivasan of the D.C. Circuit Court of Appeals (Scalia’s old haunts). This article warns that all might not be as it seems with Judge Srinivasan.

Meanwhile, Nevada Governor Brian Sandoval, whose name I had not seen on any lists, has announced that he is not interested. It appears that President Obama was actually considering nominating a Republican – now that would be interesting. It would certainly place the Republican-controlled Senate in a bind over whether or not to hold confirmation hearings.

Here’s a short PowerPoint presentation, sort of an overview of the whole “Scalia Replacement” situation, that I constructed to facilitate a discussion at my church last week.

Jury Nullification.

The topic of Jury Nullification comes up from time to time. The Institute on the Constitution has a whole course devoted to the topic. Now we learn that Associate Justice Sonia Sotomayor may actually be in favor of the doctrine. She thinks “There is a place [for it],” without describing the location of that “place.” Maybe the “wise Latina” is indeed wise after all. Anyone who expects they might be called for jury duty should take IOTC’s course.

Government Accountability.

I hope everyone realizes that if they had been a government employee and had done what Hillary Clinton appears to have done with classified information, they would have been fired, fined and possibly jailed long, long ago. Yet the sad saga continues, as additional emails are released which once contained highly classified information, including up to the Special Access Program (SAP) level.

First Amendment.

A small victory in a First Amendment case we’ve reported on in the past. In 2013, St. Francis Xavier Parish hired Colleen Simon as Director of Social Ministries knowing she was in a lesbian relationship. The Director of Religious Education at the time had told Simon that her sexual orientation and marriage to another woman wouldn’t be a problem. New leadership seemed to confirm that view. But when her orientation became public via a magazine article which mentioned where she worked, the diocese fired her. She sued. Now the Circuit Court

of Jackson County, Missouri, has agreed that “the court could not interfere with the diocese’s decision.” It appears there will be no appeal since the diocese settled the remaining issue of the case out of court.

I’ll be the first to admit that the diocese handled this whole affair horribly; giving Simon the appearance that all was well, until her relationship and association with the diocese became public, was unethical. But the court made the right decision; when courts decide to step into church employee hiring/firing decisions, they have crossed a line they shouldn’t. Crossing a constitutional boundary in order to punish the diocese for their inept action would have only made the situation worse.

 Constituting America 90-Day Study

I hope everyone is enjoying Constituting America’s 90-Day Study as much as I am. Here’s one of the essays, covering one of my favorite topics: the election of 1800.

Upcoming Events.

Constitution Seminar for kids – 5 March. Youngsters ages 10-14 in the Tidewater, Virginia, area are encouraged to attend a seminar on the U.S. Constitution from 9am to 5pm on Saturday, 5 March at the Foundation for American Christian Education on Portsmouth Blvd. Held in partnership with Constituting America, the seminar focuses on the book by Juliette Turner: “Our Constitution Rocks.” Juliette will address the class live via Google Hangouts. There is a nominal charge of $5 per student and a box lunch will be served. Every student will receive a copy of “Our Constitution Rocks,” a pocket Constitution, and other informational materials. Email gary@constitutionleadership.org to register.

Constitution Seminar for adults – 26 March. Mark your calendars; I’ll be holding a Constitution Seminar for adults on Saturday, 26 March from 9am to 6pm here in York County, VA. Space will be limited. Cost is $30 per adult, which gets you a 150-page student workbook, pocket Constitution, 150-page workbook and a whole lot of Constitutional knowledge. Email gary@constitutionleadership.org to register.

Constitution Seminar – 16 April. On Saturday, 16 April, I hope to be in the Valley Forge, PA, area presenting another Constitution Seminar in conjunction with WFYL Radio. Valley Forge was CLI’s inaugural 1-day seminar, the success of which lead me to adopt the format as my standard. Save the date if you live in that area; details later.

The “Constitution’s Week in Review” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here.

Constitutional Corner – Is Nullification the Answer?

At the Valley Forge Constitution seminar on January 10th I made a new friend who gave me a copy of “The Christian Philosophy of Patrick Henry” by James M. Wells. The book is a publication of Mr. Wells’ 1960 Master’s thesis at Sam Houston State Teacher’s College, edited by my new friend.

Patrick Henry was an amazing man, a complex man, as so many of the Founders were, but definitely a man guided by a unwavering belief in Christ and the Bible. He was also a patriot who presciently saw great danger in the ambiguous wording of the document he opposed ratifying in June 1788 as part of the Virginia Ratification Convention. Henry argued like thunder – and lost to the gentle wind (but better arguments) of James Madison. In the end, he advised the convention: “I shall be in the minority, I shall have those painful sensations which arise from a conviction of being overpowered in a good cause. Yet, I will be a peaceable citizen. My head, my hand, and my heart shall be at liberty to retrieve the loss of liberty, and remove the defects of that system, in a Constitutional way.”[1] (emphasis added)

Henry was one of the strongest proponents of states’ rights, ever; but he conspicuously avoided partisan politics in his later years. Nevertheless, he came out of retirement upon publication of the Virginia and Kentucky Resolves, and in his last public appearance warned that Virginia “had gone out of her jurisdiction in a manner not warranted by any authority.”[2] In 1788, Henry had warned of the poor wording of the Constitution, his warning had been ignored; now it was time to “pay the piper.” “The policy of [those arguing for nullification] appears to me quite devoid of wisdom and foresight.”[3]

Am I suggesting, like Henry, that nullification, as we’ve come to call it, is unconstitutional? I believe it is “extra-constitutional.” By that I mean to support nullification you must venture outside the actual text of the Constitution, which clearly argues against it in Article 6, and instead argue from principles upon which the Constitution was based, those of Blackstone and Locke. Individuals and groups enamored with nullification point to the 10th Amendment, but the 10th merely asserts that there are powers reserved to the states (or to the people); it neither identifies those powers nor describes how they can legally be expressed.

I last wrote about nullification in Constitutional Corner back in September, 2013 (Volume 1 No 27). It was merely an introduction to the topic since I believed (and still do) that many Americans had never even heard the term. I’ll not repeat what I wrote in that earlier article. I have posted it on CLI’s website for your review.

No critical analysis was attempted in that earlier article. It is now time for that analysis. The opponents of an Article V Convention place great stock in nullification as a remedy to federal overreach (while illogically implying that the states will simply rollover and accept whatever conditions Congress may include in its “Call” of a convention). But just how effective a remedy is nullification?

Nullification has many limitations; they are real and must be understood:

  1. Nullification does not change the underlying federal law. It only removes any state-controlled resources from the normal enforcement mechanisms for that law. The law remains “on the books” and the federal government is free to enforce it to the extent it is able. The Real ID Act of 2005 has been effectively nullified by the states, but it’s still part of the U.S. Code (Public Law 109–13).
  2. Nullification is a single-state, single-issue enterprise. In 1798, Jefferson and Madison attempted to precipitate a general revolt of the states to the Alien and Sedition Acts — they failed miserably. Wyoming nullifying Obamacare does not benefit in any way the remaining 308,169,126 residents of the U.S. (except to possibly provide them a bit of encouragement). Kansas nullifying federal gun laws (as they have) leaves the beleaguered residents of California unprotected. It would be meaningless (albeit tempting) for a state legislature to pass a law stating “We hereby nullify each and every federal law we object to.” Each and every unconstitutional federal law must be addressed separately. That will take some time, a long time — if there even exists a majority in the state legislature supporting the concept. There may also be a majority that supports nullifying federal gun laws, but not Obamacare. Each issue must be addressed separately and new support found.
  3. Nullification laws can easily be reversed by the next legislature that takes its seats. State legislatures are sometimes reluctant to reverse previous legislation (see dumblaws.com if you doubt this), but it certainly happens. Calls for an Article V convention have been revoked and Constitutional amendment ratification even reversed (ex: the 14th – you’d learn this in my class).
  4. Nullification has a dismal track record in the Supreme Court. The Supreme Court rejected nullification in Ableman v. Booth (1859) by declaring that Wisconsin could not nullify the Fugitive Slave Act of 1850; and in Cooper v. Aaron (1958) by declaring that the Arkansas state legislature could not amend their constitution to oppose desegregation. To my knowledge there have been no recent cases touching this issue. Would today’s Court uphold a nullification effort that was challenged in court? I think not. This would lead to what’s commonly called a “Constitutional crisis,” not unlike what Barack Obama has repeatedly thrust us into with his egregious Executive Orders, but a crisis that would have to be resolved one way or ‘tuther.

If you look to the Founders, some quotes of whose I included in my earlier essay, you’ll find support for both sides of this issue;, Mr. Henry clearly didn’t like it. Wikipedia takes a decidedly unfavorable view. Others, notably the 10th Amendment Center, think it’s the neatest thing since sliced bread (so to speak). There is a useful document on TAC’s website called: “The State of the Nullification movement – 2014.” I recommend you read it.

There are also several good books on the subject: “The Gateway to Liberty: The Constitutional Power of the Tenth Amendment,” by Dr. Archie P. Jones; “Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy,” by William J. Watkins; and of course: “Nulification, How to Resist Federal Tyranny in the 21st Century,” by Thomas E. Woods.

My view? Glad you asked.

I view nullification simply as one of several tools in a Patriot’s Toolkit. Not a particularly strong tool, perhaps akin to a rubber mallet, but a tool nevertheless which can and should be employed at selected times.

Nullification will not fix all that’s wrong with our Constitutional republic! At best it should be seen as a holding action. It will take far more than nullification to turn the great ship of state around. It will take a general awakening among the American people (you’re all working on that, aren’t you?) as well as clarification of that ambiguous language that so concerned Patrick Henry.

Congress is not going to make those clarifying changes; the people, “whose instrument it is,” must make them, and the Founders gave us a mechanism for doing just that. It can be found in Article V.

We’ll be discussing this issue tomorrow morning, 7am, on WFYL Radio, 1180 AM. You can listen in by going to www.1180wfyl.com.

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. This essay appeared on Fairfax Free Citizen and in the Yorktown Crier on 22 January 2015.

[1] Wells, quoting Henry, page 72

[2] Wells, quoting Henry, page 97.

[3] Wells, quoting Henry, page 93.