OFF THE WIRE
Posted by Mike Maharrey
Predictable.
Like a thunderstorm on a summer day in central Florida.
Or boasting out of the mouth of a New York Yankees fan.
Whenever I read an article about nullification from a “mainstream” news source, I know I will find the cookie-cutter constitutional law professor from some university parroting establishment approved nonsense about the principle’s illegitimacy because of the Supremacy Cause written into the constitution.
A recent AP article by Jeff Barnard on state efforts to block unconstitutional gun-grabs didn’t defy the odds. Barnard trotted out some academic hack from the University of Denver, who, despite his title of “constitutional law professor,” demonstrates freshman-level constitutional ignorance.
“The legislature can pass anything it wants,” Kamin said. “The Supremacy Clause of the Constitution makes that clearly unconstitutional. Where there’s a conflict between state and federal law, the federal government is supreme.”
It appears Kamin believes the Constitution empowers the federal government to do whatever it wants, and if its whims conflict with a state law, the federal government gets its way. Kind of like a big brother who trumps every desire of the little brother, backed up with noogie threats.
Ummm, yeah. Doesn’t say that.
Let’s read the Supremacy Clause, shall we?
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.Sometimes I think they make law students drink an elixir that renders basic English comprehension impossible. Note the key words in the clause: in Pursuance thereof. And note what it does not say:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and any other old act Congress, in its infinite wisdom, decides to pass…shall be the supreme Law of the Land.By definition, an unconstitutional act is not a law, but a violation of the supreme law – the Constitution. It is illegal, void and unauthoritative. Therefore, it cannot stand supreme. The mere fact that the federal government does something does not confer supremacy. It must find roots in the enumerated powers delegated in the Constitution and not violate the Bill of Rights.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. – 16 Am Jur 2d, Sec 177 late 2d, Sec 256Alexander Hamilton put it succinctly in Federalist 78.
There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.
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Kamin and other legal experts said such disdain of Obama’s proposals is reminiscent of former Confederate states’ refusal to comply with federal law extending equal rights for blacks after the Civil War.The implication: nullifiers hang white, hooded robes in the back of their closets.
Here’s a question: why can’t reporters like Barnard ever find a source who will make the following equally historically accurate statement.
“Such disdain of Obama’s proposals is reminiscent of northern states’ refusal to comply with federal law requiring them to send any black person accused of being a slave back south without due process.”Maybe those vehemently opposing nullification are the ones with the hooded robes hanging deep in their closets.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.