1. ECO 481: Public Choice Theory
Week 13: Nullification
Dr. Dennis Foster

2. Constitutionalism Government’s authority derives from the people.
Limits to government are implicit or spelled out in a constitutional document.
U.S. government one of “limited and enumerated powers.”
"This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent that principle is now universally admitted."

3. Article 1, Section 8 Congress shall have the power to . . .
Collect taxes.
Provide for the common Defence.
Regulate commerce.
Coin money
Establish Post Offices.
Declare War.

4. Nullification - Basic Issues
Do politicians even accept the idea of a limited government?
Electoral approach to limiting government has been a failure.
Can we trust the federal courts in this matter?
Should the federal government have a monopoly on deciding constitutional questions?
Are you serious? Are you serious?
I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens.
In questions of …
power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

5. Nullification - Marijuana
Gonzales v. Raich; ruling of 9th Circuit Court:
“Federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”
Spillover effects? --Alabama/Mississippi/LA
Supreme Court & Thomas dissent.

6. Nullification: What the Constitution Says
In its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in
Congress.
General welfare clause
What’s the point of listing powers? [Madison]
Does Congress promote “general” welfare?
Commerce clause
Making commerce “regular.”
Contortions on gun-free school zones.
Necessary and proper clause
To build the buildings, need to order lumber.

7. Nullification: What the Constitution Says
10th Amendment as a reinforcement of federal limits.
Why was that necessary?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

8. Nullification: What the Constitution Says
10th Amendment as a reinforcement of federal limits.
Why was that necessary?
A “living” constitution is not a constitution.
How can it “shackle” politicians?
The Jeffersonian “rightful remedy” of state nullification or “interposition.”
It is the duty of the state!

9. Nullification - History
Historical uses: --Alien & Sedition Acts --Embargoes --”Tariff of Abominations” --Conscription --Enlistment of minors --Internal improvements --Fugitive Slave Act --Use of state militia --Second Bank of the U.S.

10. Nullification: Running out of remedies
“National” vs. “compact” theory of Union.
How does the U.S. get bigger?
What does “more perfect union” refer to?
The degeneration into the “modern state.”
The 17th Amendment as a crucial blow.

11. Nullification: Running out of remedies
“National” vs. “compact” theory of Union.
How does the U.S. get bigger?
What does “more perfect union” refer to?
The degeneration into the “modern state.”
The 17th Amendment as a crucial blow.
Is constitutional change really possible?

12. The Nullification Debate
Appendix:
The Nullification Debate
Comes to Flagstaff
Spring 2011

13. Nullification is serious business – it was a cause of the U. S
Nullification is serious business – it was a cause of the U.S. Civil War
Ann Heitland 2/13/2011
The nullification movement would be laughable if those involved were not so deadly serious...
The U.S. Constitution contains the Supremacy Clause (Art. 4, No. 2) for a reason: The Founders of our nation had just lived through a decade of government under the Articles of Confederation, which gave power to states to ignore most federal laws. That didn't work, so the Founders made federal law supreme…
[W]e fought a bloody Civil War over the enforcement of federal law by an unpopular president (Lincoln) and the South's claims to "state's rights."

14. States empowered to curtail federal power
Dennis Foster 2/20/2011
How do you control a federal government that has an insatiable appetite…? You craft a constitution that limits its powers…
The principle of nullification was most often used by northern states, but more famously by South Carolina in 1840 to oppose crushing federal tariffs. That standoff led to a compromise on these tariffs, and not to the Civil War as some have suggested.
Today, there are two de facto applications of the nullification principle at work. The Real ID Act is the law of the land … [and] marijuana possession is still a federal crime.

15. Nullification given voice at NAU 4/08/2011 p. 1
For those familiar with the principle of state nullification, it might conjure up thoughts of the Civil War … [b]ut New York Times bestselling author Thomas Woods told an audience … at Cline Library on Wednesday that those ideas are unfounded.
The idea of nullification dates back to 1798, when Thomas Jefferson tried to use it to get rid of the Alien and Sedition Acts -- a series of bills that, among other things, made it illegal to criticize the president or Congress.
Foster said … whether or not people agreed with that assessment, "the university campus is still a place for us to gather and debate the issues of our time."

16. Civil War should have ended nullification
Bob James 4/22/2011
Thomas Woods was invited to air his views and discuss his book on nullification in the NAU Cline Library...
Both Davis and Calhoun were utterly destroyed by Henry Clay and Daniel Webster in debate after debate. Their ideas are as bankrupt now as they were shown to be then.
Woods' views that the Constitution is dead and the separate states should ultimately go their own way was treason then and smacks of treason now.
More than 600,000 Americans died in [the Civil War] over slavery and the concept of nullification and interposition.

17. ECO 481: Public Choice Theory
Week 13: Nullification
Dr. Dennis Foster

19. Article I, Section 3:
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”
17th Amendment:
“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”