Think Progress and Secession.

Today we dismantle an article published by The article titled “A Texas Lawmaker’s Bizarre Plan To Secede From The Union One Law At A Time”1 is a provocative title, but misleading. What we are going to do is go through this article and expose glaring inaccuracies and untruths presented by the author.

First, let’s deal with the title: “A Texas Lawmaker’s Bizarre Plan To Secede From The Union One Law At A Time”. This piece is about a Texas Lawmaker’s bill to set up a committee to see if federal laws are constitutional or not; if not, then to nullify them. The author suggests this will lead to secession one law at a time. This seems a bit far-fetched, considering nullification happened in the past, and in those cases, it did not lead to seceding. The REAL I.D. act of 2005 has been nullified or been opposed and stopped by 27 states according to the Tenth amendment center. These states have not seceded.

The very first line of this article states, “Under an unconstitutional proposal by Texas state Rep. Dan Flynn”. This is interesting. If we go off the author’s perception that only the Supreme Court can strike down laws, then the initial statement he makes is fallacious. He goes on to describe the setting up of a committee that this proposed bill would set up. This takes up the rest of the first paragraph.

The second paragraph goes into detail on what the author sees in the bill and how the committee would be stacked in the favor of the Lt. Governor. I have no issues with this portion.

The third paragraph starts with a flimsy attempt to discredit the bill in Texas, “Rep. Flynn’s proposal is rooted in an unconstitutional theory known as “nullification,” which claims that a state can unilaterally declare a federal law unconstitutional and thus void within the state’s borders.” This is not some discredited theory at all. What the author fails to tell you is that this came from James Madison, who the author quotes as being against nullification, and Thomas Jefferson as well. These two men were expounding on the promises that were made during the Constitutional ratifying conventions2. Thomas Jefferson and James Madison wrote the Kentucky3 and Virginia resolutions4 expressing the states’ rights to nullify or, in Madison’s words, interpose between the federal government and the citizens of the respective state. The right to nullification can be found within the Tenth amendment5 to the constitution.

The rest of the paragraph had this to say “The Constitution, however, explicitly provides that duly enacted federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Thus, federal law is “supreme” over state law, and state laws that conflict with federal law — or which seek to openly defy federal law — are preempted by the federal government’s legislation.” Surprisingly enough he tries to use the Constitution to make his point. He fails at this because what it actually says is: 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.6 The operative phrase is bolded above. Not just any law that the Congress passes and the President signs become the supreme law of the land, only those that are in pursuance of the constitution. So who deems what is constitutional? Well, Thomas Jefferson had this to say “this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: 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; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress7.” I think I would have to agree with Jefferson on this one.

The next paragraph, says this at the beginning: “Proponents of nullification seek to get around this fact by arguing that state lawmakers aren’t simply invalidating the law they do not wish to follow, they are also declaring it unconstitutional. But the Constitution does not give state lawmakers the power to issue binding pronouncements on whether federal laws are constitutional.” I have not heard of people making the argument that he claims; however, some might be making those claims. The last sentence is interesting as the constitution does not grant powers to the States. The States created the federal government; this document delegates certain powers to the federal government that the States had. Nowhere in the constitution does it forbid the States from nullifying federal laws. Federal laws are the supreme law of the land, yet only if in pursuance of the Constitution. This problem we tackled above.

Here is the next portion of note: “To the contrary, the Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” If a federal law actually is unconstitutional, then the proper legal course is to file a lawsuit seeking to strike the law down.” The author is right in his quote about the judicial power. In looking closer, if the States sue the federal government, the Judge would be one employed by the very government that they are suing – a marked conflict of interest. This would be akin to me and my employer going to see a judge, and that judge happens to be my mother. We like to think that our justices can always exercise impartiality, but unfortunately, they cannot, as can be seen by the long train of abuses that flow from their pen.

The last portion of this paragraph brings James Madison into the conversation: “As James Madison warned early in American history, nullification would “speedily put an end to the Union itself” because it would render each obligation a state’s citizens owe to the union as a whole optional. In effect, nullification is a way to secede from the union one law at a time.” James Madison did say this late in life. He also said this in 1798, “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them8.” He then went on to clarify his position in the report of 18009. How did he clarify his position? Well, here is just a small portion of it “The resolution of the General Assembly [the Virginia Resolutions of 1798] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.” It would seem that he supported the idea to me.

This author does not seem to understand the history of these United States, nor does he understand the Constitution, the ratification, nor the rights of the peoples of the states. I cannot blame him as these things are not thoroughly taught to our children. If he is interested in having a respectful, robust discussion regarding this subject, I would be happy to chat. For a detailed and thorough rundown of what nullification is, how it works, the constitutionality, and the arguments for and against it, Tom Woods’ book Nullification is a great place to start, as well as the Tenth Amendment Center.

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