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January 27, 2014

The Problem with Nullification

Grim and I have had a long standing debate over the tactic of nullification at both the state and individual level. The topic came up recently in the context of a proposal that the state of Utah deliberately refuse water to the NSA's new data center; effectively rendering the land useless. Substitute "electricity" for water if you will - both are required for buildings in which people work, and if the state can selectively deny water to [only some] landowners or tenants, why should it not be able to cut off other essential services?

I responded by asking a question: if it is acceptable for Utah to withhold water from property owners if it unilaterally holds their activities to be unconstitutional, what other uses might be made of this glorious new power?

Should a state legislature that thinks the United States military is illegal and immoral have the right to block water or power to military bases within its borders?

Should a state legislature be able to cut off public utilities to Tea Party headquarters? How about the local GOP headquarters?

These are not idle questions - we are talking about whether state legislatures are within their rights to effectively nullify (or greatly devalue) one of the most fundamental of rights - that of property ownership - on the basis of mere political disagreement, without any sort of due process to establish that the intended use of the property is in fact unconstitutional. We are allowing one party to a dispute - the state - to unilaterally decide the dispute.

"Nullification" is a term often used broadly to cover all sorts of refusals to obey the law. State nullification refers to the [rarely if ever upheld] theory that any state may refuse to enforce a law it considers unconstitutional. From what I could see during a brief attempt to research the issue, neither the Constitutional Convention or the Federalist Papers support the notion that states should be able to exercise such a power. This is inconvenient for those who like to cite the Founders or the Constitution as the ultimate appeal to authority:

The records of the state ratifying conventions include over three dozen statements in more than half the states asserting that the federal courts would have the power to declare laws unconstitutional.[18] For example, Luther Martin's letter to the Maryland ratifying convention asserted that the power to declare laws unconstitutional could be exercised solely by the federal courts, and that the states would be bound by federal court decisions...

John Marshall said in the Virginia convention that protection against infringement of the Constitution would be provided by the federal courts: "If [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [federal] judges as an infringement of the Constitution which they are to guard. . . . They would declare it void. . . . To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."[20]
In short, there were no statements in the Constitutional Convention or the state ratifying conventions asserting that the states would have the power to nullify federal laws. On the other hand, the records of these conventions support the idea that the power to declare federal laws unconstitutional lies in the federal courts.

The Federalist Papers do not directly address whether or not states have the power to nullify federal law. They say that the power to declare laws unconstitutional concerning jurisdictions are delegated ultimately to federal courts, once state courts have made their decisions

Federalist No. 33 states that federal laws are supreme to state law, so long as they are within the federal government's delegated powers.[22] Federalist No. 39 does not directly address the question of who is to decide whether the federal government has exceeded its delegated powers and has infringed on the states' reserved powers. It explains that under the Constitution, legal conflicts over jurisidictions are decided by Federal tribunals: "[The federal government's] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general [i.e. federal] government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."[23]

Federalist No. 44 discusses the role of the states in checking actions of Congress that exceed its delegated powers. According to Federalist No. 44, one important role of the states is to "sound the alarm" regarding any unconstitutional exercise of power by Congress, and to assist in electing new representatives to Congress.[24] Federalist No. 44 does not imply that the states have the power to legally nullify federal law, although this would have been an appropriate context in which to mention it if such a power were thought to exist.

...Federalist No. 78 says that the federal courts have the power "to pronounce legislative acts void, because contrary to the Constitution."[25]

Federalist No. 80 asserts that the final authority to interpret the Constitution and federal law lies in the federal courts, not the states, because of the need for uniformity.[26]

Likewise, Federalist No. 22 says that the federal courts should interpret federal law due to the need for uniformity.[27]

Federalist No. 82 says that because of the need for uniformity and the federal government's need to effectively enforce its laws, the Constitution gives the Supreme Court the power to review decisions of state courts, but only in in cases arising under the Constitution or federal law.[28]

The Federalist Papers therefore indicate that the power to declare federal laws unconstitutional lies in the federal courts, not in the states.

There are other remedies available to the states seeking to challenge federal power. The attorneys general of several states have sued the federal government alleging that they should not be bound by the Affordable Care Act. So far, none of these challenges has succeeded.

This type of remedy at least represents a direct, frontal assault that makes arguments within the existing framework of law. Proposals like the Utah plan do nothing to establish that the Utah data center is, in fact, unconstitutional. They make no argument, preferring sabotage to debate and deliberation. Interestingly, it turns out that the Utah data center is seated on a military installation called Camp Williams, which makes my debate question (can a state deny power or water to a military base within its borders?) even more relevant.

Note that I did not say, "on its land", as most military installations are situated on federal land purchased or leased from the states.

What we are really asking here is, "Can a state selectively discriminate against a tenant or owner in rightful possession of land for which the state has received monetary compensation (paid in federal taxpayer dollars!), denying to it essential public goods enjoyed by all other landowners and tenants within the state?" If we sanction this outcome because we approve of the result, against what other landowners or tenants could this delicious new power be used? Do we approve it in all situations (whether or not we like the outcome)? Or are we essentially arguing that it's OK for us to do it, but not for those we disagree with to do it?

Today, linking to a column by Glenn Reynolds, Grim poses another example of nullification:

... on the marijuana front, the people of states like Colorado are engaging in an odd, 21st century variety of nullification. Unlike the 19th century John Calhoun version, state laws legalizing marijuana don't purport to neutralize the still-extant federal laws banning cannabis. But the state, and millions of Coloradans, are simply ignoring the federal law and, in essence, daring the feds to do something about it.

State laws, of course, can't neutralize federal law, as the Constitution's Supremacy Clause makes clear. But, bloated as it is, the federal law enforcement apparatus isn't up to the task of prosecuting all the marijuana users in Colorado. And if it tried, it would have to bring them to trial before juries in Colorado, who would probably acquit most of them. There would also be massive political backlash, amplified in the coming 2014 and 2016 elections because Colorado is a swing state. And in response to Colorado's example, other states look likely to follow suit, making the feds' problem much bigger.

So, despite all the federal laws on the books, Colorado has de facto nullified them, and started a process that may very well snowball, all without directly attacking the federal laws, or the federal government, at all.

Once again, the state has done nothing to challenge the actual law in question. Colorado poses no constitutional or legal argument. It simply "dares" the federal government to enforce the laws it has made. Here in the people's republic of Maryland, the city of Takoma Park has open laws on the books forbidding law enforcement to report illegal aliens or take any action to deport them. In his article, Reynolds uses the fact that many Americans have refused to sign up for ObamaCare as yet another example of nullification (or perhaps more accurately, "Nullifaction" is the title of Grim's post, and Reynolds calls Colorado's stance "de facto" nullification:

In one area, we have the refusal of people to sign up for Obamacare in anything like the numbers that were predicted, or needed to make it work.

But this is a very different scenario, because the ACA contains provisions for doing precisely this - a fine - within the existing law. So those who "refuse to sign up" are not refusing to obey the law. They are taking advantage of an option provided within that very law.

The problem I have with nullification is that it is back handed and undermines the rule of law. Its supporters like to argue that they have "no other means" to oppose laws they disagree with. But that's not really true: there are many other ways to oppose laws: some more successful, some less so. But our entire system of government is based on the idea that we formulate the rules we live under a well defined process of public debate, legislation, and law enforcement. If you are willing to selectively disregard the law because persuading your fellow citizens is too hard, are you willing to have the same tactic used against you?

How do we object to this administration's refusal to enforce laws if we claim the same right? It is a puzzlement.

Posted by Cassandra at January 27, 2014 08:25 AM

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Comments

We fought a war over nullification. The South lost.

Posted by: CAPT Mongo at January 27, 2014 10:06 AM

I am still amused at the notion that "Irish Democracy" is something we should be emulating.

Posted by: Cassandra at January 27, 2014 10:14 AM

Nullification is an important state power, albeit one that requiring judicious application. Legislatures, state or federal, can enact pretty much any law that garners a majority in both houses and survives a veto with nary a glance towards the state or federal constitutions. Deciding the constitutionality of the law is the province of the courts, and in order to bring the matter before the judiciary there must be an active controversy. In other words, Virginia could enact a law banning political billboards. It's obvious that such a law if enforced would act as an unlwful curtailment of constitutionally protected speech. But if it is not enforced? Then there is no injury and, consequently, no controversy for a court to entertain. (Of course, in the rather bad example I just provided, the controversy raised would be whether the enactment has a "chilling effect" on political speech.) So, yes, the Colorado pot law is a "dare" to the federal government to either enforce it's laws and create the necessary controversy for the courts to decide, or shut the hell up. Forcing the issue is plainly a greater risk for the feds, as a court could easily circumscribe federal power over the states to a far greater extent than the application of federal drug laws - something that many of we Federalists would cheer. And that's why the feds will sit on their hands. I love nullification. It speaks truth to power.

Posted by: spd rdr at January 27, 2014 10:27 AM

If nullification is used in that way (to create standing to challenge a federal law in court), then I have no problem with it. In my admittedly ignorant mind, that application doesn't go around the system (yanno, like Obama wants to go around Congress because he can't persuade them and doesn't want to lead).

But I can easily see nullification being used in less positive ways - for instance, to "vex and annoy", a notable terrorist/al Qaeda strategy. I think it's a good point that legal processes can be used to harass/burden/incapacitate an opponent.

Take unduly burdensome FOIA requests, or unduly burdensome discovery demands - their purpose, unlike legitimate FOIA or discovery, isn't to inform but to make complying with the request so expensive or time consuming that you effectively hamstring the opponent.

I'm guessing that enforcing pot laws isn't really a core priority of the federal government. But the example of denying water to Camp Williams (or simply to the NSA data center) doesn't strike me as the same kind of tactic and I"m not sure that's a precedent federalists should support. Defense is a core priority. The question here seems to be, do states have the right to try to hamstring national defense?

Maybe they do, but this is where I'm probably closer to Capt. Mongo.

Posted by: Cassandra at January 27, 2014 10:55 AM

Oh! There was a question? In that case the answer is, as always, "NO."

Posted by: spd rdr at January 27, 2014 11:07 AM

You're enjoying yourself waaaaaaay too much, mr rdr :p

I thought of two more interesting scenarios (my purpose here is to test the validity of the tactic by deliberately thinking of outcomes most of us would find unacceptable):

1. A state unilaterally decides that slavery ought to be legal after all, and declares itself a
Sanctuary state for slaveholders.

2. Immigrants (legal or illegal) become the majority in Texas (a border state). They decide that Texas has no business cooperating with/supporting federal immigration laws and passes a law forbidding law enforcement from cooperating with the Border Patrol.

Posted by: Sister Mary Bag O'Metaphors at January 27, 2014 11:22 AM

I think you're running two things together conceptually: the power to declare something unconstitutional, and nullification. The first is a formal power, located (after Reconstruction) in the Federal courts.

Nullification (which was not only or even chiefly a Southern tactic) is about state resistance to Federal power. It's informal rather than formal, which is why the Federalist papers are silent on it and it has taken a number of different forms.

I tend to think of nullification as an almost unalloyed good, because it breaks up concentrated power. Because it breaks up concentrated power, it provides -- ironically, given the nature of the tactic -- a kind of stability to the system. Here's what I mean:

It's easy to get the law to say whatever you want if you happen to control both houses of Congress and the Presidency for a couple of years, as happens occasionally. It's even easier to replace Federal civil servants and attorneys with those who are ideologically your kind.

What's much harder is to actually convince strong majorities of the American people to go along with you. When we see large-scale resistance to Federal power, we see that the Federal power (however constitutional) is becoming unstable: it is in creating tensions with millions of people that you run the risk that the system itself will fail.

Nullification gives a way for people to push back, assuming there are enough of them (which is the only way that it works). CAPT Mongo is wrong, in other words, that we fought a war over nullification. We fought a war because the South lost faith that nullification would continue to work as an option to resist a hostile Federal government.

That doesn't mean that nullification has no risks, or that it doesn't have a lawless character. It does. But it's still a great good.

Also:

This is inconvenient for those who like to cite the Founders or the Constitution as the ultimate appeal to authority[.]

It might be for them, but I am not among them. I've written a lot about this over the years. What I take to be the 'ultimate appeal to authority' is of course ultimately divine; but in terms of mere earthly political authority, it is the defense of a conception of legitimacy (or rights) by those willing to sacrifice to defend it. The Constitution is not fundamental, but was itself a product of such a defense -- even to the point of war -- against established power. So was Magna Carta, etc.

Posted by: Grim at January 27, 2014 11:45 AM

My use of the "unconstitutional" argument was meant to give the strongest possible support to a state refusing to comply with or enforce federal law (FWIW, the NSA thing isn't really a question of refusing to comply/enforce, but simply of a state saying, "I don't agree with what you're doing so I want my state to have the power to - even in the absence of a law declaring the activity illegal - block essential services to a legal land owner or tenant".

That's a far weaker justification, but if you want to argue on those grounds I'm perfectly willing to :p

Posted by: Cassandra at January 27, 2014 11:56 AM

I tend to think of nullification as an almost unalloyed good, because it breaks up concentrated power. Because it breaks up concentrated power, it provides -- ironically, given the nature of the tactic -- a kind of stability to the system.

Then you've answered my question: you think a state should be allowed to do anything to the military with its borders. Power doesn't get much more concentrated than the US military.

So breaking it up is an unalloyed good?

Posted by: Cassandra at January 27, 2014 11:57 AM

The US military is not a good example of concentrated power, because it isn't used as "power" -- one thing that the government doesn't do, except perhaps secretly in agencies like the NSA, is use the military to try to resolve internal political disputes. We use Federal police for that, and in general I think such policing agencies should not be allowed to become very strong at all, and should be subject to intense public scrutiny and limitations on their powers and structure. (We've talked about that.)

If the military came to be deployed internally for the purpose of compelling American citizens, I could see endorsing very similar limits on it in terms of size, powers, and structures. In other words, if it became an instrument of concentrated power here at home, it would fall under the same heading.

Posted by: Grim at January 27, 2014 12:06 PM

Let me respond, too: I understand your preference for the lawful approach. It has advantages that I can see.

However, it isn't adequate by itself. Sometimes the law comes to adopt disastrous legal principles that have to be resisted. Another post I put up yesterday was on R2P, which in theory legally commits us to waging wars we might have no business fighting.

Courts do this too. The principle that came out of Lawrence v. Texas, whatever you think of the discrete holding, is that "mere" moral disapproval by a community of a behavior is not sufficient to justify a law. That principle is going to be far harder to swallow than the people who crafted it, to apply to the narrow case, have yet figured out. It's already being used to challenge zoning requirements meant to keep pornography and strip clubs out of communities, or away from churches or youth centers.

That principle is now enshrined in Supreme Court precedent, though, so it's going to be imposed on us from the top down across the country. Court terms are for life; we can't replace the SCOTUS. Nullification provides a mode for communities to refuse to comply with destructive legal principles.

Posted by: Grim at January 27, 2014 12:21 PM

I'm a lot more comfortable with the notion of individual citizens exercising their power of nullification against the government than I with a state government's exercising its power of nullification against an entity. Now, if the entity subjected to abuse is an arm of the federal government, I'm more inclined to sit back and eat popcorn.

But then, I'm still so furious over the destruction of my health insurance that I cannot summon up a shred of sympathy for any government entity that finds itself being trashed by anyone, for any reason, just at present. This is one seriously alienated citizen. I'm sure I'll calm down eventually, but right now my attitude is a pox on the lot of them, and come and get me, copper.

Posted by: Texan99 at January 27, 2014 01:02 PM

The US military is not a good example of concentrated power, because it isn't used as "power" -- one thing that the government doesn't do, except perhaps secretly in agencies like the NSA, is use the military to try to resolve internal political disputes.

Is there credible evidence that the NSA has used its information to resolve internal political disputes? If so, I don't think I've seen it.

Another post I put up yesterday was on R2P, which in theory legally commits us to waging wars we might have no business fighting.

A rather sizeable part of the American public thinks we had no business fighting either the Iraq or Afghan wars.

Posted by: Cassandra at January 27, 2014 01:46 PM

"I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the People." To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." – Thomas Jefferson


“Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual.” – Thomas Jefferson


"Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." - Thomas Jefferson


So I defer to Jefferson and Grim, in his comments, as having well said what the matter at hand - the General Government's usurpations generally, and nullification specifically, entail.

The law is the law is the law is an ass. When it comes to that it is my right to protect myself from being kicked by it or its dimwit posturing cousin – the executive order, and the State's right to protect itself from the usurpations, intrigues, illegality, mal- and misprisions, pretenses, and so on, of the General Government. I take it as a matter of routine that Utah has a State constitution. If it makes more than a pretense of its charter and takes the Constitution at its original word, it may have an open and shut case.

Posted by: George Pal at January 27, 2014 03:21 PM

OK, you've got me. I give up.

Posted by: Cassandra at January 27, 2014 05:11 PM

Is there credible evidence that the NSA has used its information to resolve internal political disputes? If so, I don't think I've seen it.

To me, the very fact that the NSA collects data on purely domestic communications on a wholesale basis is, in and of itself, an internal action against the citizenry. No where near as blatant as the army taking over a city block so no where near needing a commensurate response.

This particular action may be going to far, but at some point (and I don't think we are there) the relationships between the states and the fedgov does become combative. One of the reasons we protect rights is to protect the minority: that there are things one may not do even with majority blessing. But that all depends on people having faith that there is a neutral party (the courts) with which to appeal for relief.

At the risk of oversimplifying the issue, that whole "consent of the governed" thing matters. And as more and more people lose faith that that is truly the case, more and more stuff like this will manifest.

Posted by: Yu-Ain Gonnano at January 27, 2014 05:38 PM

Observations:
- the original post blurred the distinction from a state passively refusing to enforce federal law (which is w/o doubt a constitutional prerogative; states may not pass unconstitutional laws, but are *not* required to 'harmonize' their statutes w/ federal law), as compared to acting actively to oppose federal gov't actions and/or facilities.

- though NSA is funded by DoD and has many military members in various positions, it is not a military service.

- congress passed the posse comitatis act to prevent our military from being used for domestic law enforcement.

Posted by: CAPT Mike at January 27, 2014 07:40 PM

Folks, one more time, let me ask the question that was actually the subject of this post. Perhaps someone will decide to consider it, perhaps not. It's a free country. Either way, I'm just tiresome enough to wish to make that point clear.

... we are talking about whether state legislatures are within their rights to effectively nullify (or greatly devalue) one of the most fundamental of rights - that of property ownership - on the basis of mere political disagreement, without any sort of due process to establish that the intended use of the property is in fact unconstitutional.

Grim thinks "unconstitutional" is too high a bar, and that (if I understand his comment) merely wishing to attack "concentrated power" wherever it may be found is just cause and an "unalloyed good".

I have presented not one, but several scenarios intended to find out exactly against whom and under which circumstances people think state legislatures should be able to act in this manner. No blurring of lines was intended, as I assumed that readers knew the difference between the NSA, the military, the Tea Party, or the GOP.

I also pointed out explicitly in my post that not everything that is labeled "nullification" is in fact, nullification. Simply refusing to obey a law isn't "nullification". It is civil disobedience.

As for states disagreeing with (or feeling combative against) the federal government, this is no surprise as it has been happening since the federal government first came into being.

Posted by: Cassandra at January 27, 2014 09:32 PM

I didn't say unconstitutional was too high a bar; I said it was an entirely separate issue. The question of what is constitutional is formal and legal; the questions involved in nullification are informal and of a character that is opposed to the law.

Nevertheless, it is acts of nullification that have given rise to the great laws that protect rights and liberties, especially the Constitution and the Magna Carta. These were the product of acts of resistance to the law, which either forced the government to back down and recognize rights it was disinclined to recognize, or allowed for the formation of new governments on better terms.

So, in terms of your question:

"....whether state legislatures are within their rights to effectively nullify (or greatly devalue) one of the most fundamental of rights - that of property ownership - on the basis of mere political disagreement, without any sort of due process..."

The answer is, they could be: Continental soldiers seizing British arms depots, for example. It depends on the affront.

This is not the realm of due process or other formal legal procedures. It's a dangerous place. But it is also what has produced the greatest goods we've ever gotten out of the law: charters of rights to which even mighty governments, for a while, submit.

Posted by: Grim at January 27, 2014 09:50 PM

Grim, I'm sorry but I don't see how either of your examples really apply to this situation. You're talking about armed rebellion, and the relevance of your examples to today isn't clear to me at all.

In the case of the Magna Carta, the British system of government was absolute monarchy. King John governed by fiat, and it's not as though there were any other way (other than armed rebellion) to change the law. The law was what the king said it was. How does that compare to a system that expressly provides for representative government and arbitration by the judiciary?

As for the Constitution, what gave rise to the Constitution was NOT the revolutionary war (at least not directly), but the realization that the Articles of Confederation were far too weak an instrument to bind the several states into one union and allow that union to defend and govern itself. I don't see how you can suggest some sort of direct, causal connection between armed rebellion and the creation of a document that actually strengthened the federal government at the expense of state power.

I suppose Shays' rebellion applies, but here the effect was to actually increase support for a stronger central government, not to make the [already weak] central government cede powers back to the States or the people. That rebellion was against power of the State of Massachusetts (against State, not Federal power).

There's really no question that the Constitution diminished the powers of the states and gave more power to the federal government. That was its express purpose, and the Federalist papers were written in response to attacks from anti-Federalists seeking to undermine the document we think of as a master work today.

So I'm confused, just as I'm confused as to why on earth Thomas Jefferson quotes - the opinions of one man - would be viewed as more valid than what our founding legal document actually calls for? Jefferson was no great respecter of individual rights. He opposed the Alien and Sedition acts, but had no qualms about using them to crush his critics, and his ruinous Embargo Act was about as intolerable an attack on the basic freedom of trade as I can think of. This is the guy we're holding up as a champion?

I don't get it.

Posted by: Cassandra at January 28, 2014 08:14 AM

I think of nullification as a middle state between law and war. Clausewitz said that war was the continuation of politics by other means. Nullification stands in between them. It might be helpful to think of a physical analogy to the ordinary states of water, with ice on one end and steam on the other. If you take a very stable state, ice, and subject it to increased heat, it begins to melt. Soon it is very fluid and less stable. Keep applying heat and it will fly apart.

You can't change the nature of the water, no more than you can change human nature. What you can do is increase pressure to try to contain the material in its original shape. It turns out that increasing pressure, however, only accelerates the state change.

That's a simplified picture of the physics, but it strikes me as a good analogy. If you want things to become more stable and law-like, to cool down, you need to talk to those who are using forms of pressure to try to control people. Perhaps you can also reduce the heat, but the heat is not only coming (indeed, not chiefly coming) from ordinary citizens going about their business. The people who are starting to resist and nullify are reacting to pressure and heat in a natural and appropriate way.

Posted by: Grim at January 28, 2014 08:35 AM

Now, on the historical analogies: John wasn't an absolute monarch. The English state was far too weak to contemplate such a thing; you get absolute monarchies in the early Modern period when the machinery of state authority allowed later kings to overrule parliaments and set aside traditional rights and divisions of power.

What John tried to do was to set aside some traditional feudal rights and protections. The resulting revolt, and charter of rights, was about restoring traditional liberties. It was a state-change response to an attempt to alter the feudal bargain in a unilateral way.

We are seeing a similar attempt to alter the nature of the citizenship bargain today: we are being told we must both (a) submit to a much more direct control by having our health arrangements subject to Federal approval and monitoring, the consequences of which have not even begun to be felt; and (b) set aside our traditional culture and moral beliefs, including even the right to pass a law on the basis of a moral belief. Resistance is the right answer.

The Constitution itself was, as you say, written out of a desire for an increased Federal structure. Note, however, the very strong resistance to such a structure -- which necessitated the writing of the Federalist papers and the long negotiations. What came out of this resistance was increased specificity about the limits of the Federal government, now being ignored; and especially the Bill of Rights, which is the part of the Constitution that we normally appeal to as a defense against Federal intrusion. (Especially note the way that the Federal government now openly speaks of the 10th Amendment as a dead letter.)

As for why Jefferson's writings should be preferred, sometimes they are better. There's a huge difference between the guarantee of equality in the Declaration of Independence and the one in the Constitution (indeed, we don't really see one until the 14th Amendment). That difference is metaphysical, and it speaks to the character of the America it contemplates; the old, Declaration-based understanding of a nation respecting the will of a Creator is exactly what was lost, and what needs to be restored.

Posted by: Grim at January 28, 2014 08:43 AM

There's a huge difference between the guarantee of equality in the Declaration of Independence and the one in the Constitution (indeed, we don't really see one until the 14th Amendment). That difference is metaphysical, and it speaks to the character of the America it contemplates; the old, Declaration-based understanding of a nation respecting the will of a Creator is exactly what was lost, and what needs to be restored.

So now we've moved away from the Constitution and want to go back to the system that didn't work even when there were only a tiny handful of states?

Who gets to tell us what the will of the Creator is, Grim? Would Jefferson (the author of the wall of separation) be willing to allow any one church to do it? Even the Christian faiths don't agree on God's will. Even single churches don't fully agree.

Jefferson would be the last one, from what I've read, to advocate such a course.

Posted by: Cassandra at January 28, 2014 09:30 AM

I should worry that the federal government is not receiving due process in its dealings with a powerful state government? I'm sure you're right that technically it's an infraction. In practice, I will cheerfully leave the feds to sort it out without the slightest assistance from me. I think they're powerful enough to look after themselves. They're certainly not looking after me.

Posted by: Texan99 at January 28, 2014 10:28 AM

Grim, we have both been nibbling around the edges of a central question for some time:

When, and under what circumstances, are armed rebellion or acts of sabotage against the federal government justified. Now I don't deny that - as Yu-Ain stated so well earlier - we may get to that point some day.

But so far I have not heard you articulate any rationale for when that would be the right thing to do except what sounds to me like, "Well, if people have weapons and are willing to put their lives on the line, somehow that makes whatever they do OK because... freedom."

That's not entirely a fair summary of your position, but that's what it sounds like beneath all the window dressing. And maybe that's history's verdict - that people with weapons who are willing to fight and die to force the outcome they prefer will always retroactively be in the right. Maybe all this glorious talk of freedom and liberty is no more than "might makes right", dressed up.

But what is so important to me about the way our current system of government came about is that people with very different priorities and values and interests came together peaceably and argued and negotiated and worked to design a system of government.

Over time, in reaction to the needs of their time and real world events, that original compact has been altered in the same manner. Now, suddenly, that is "too hard". We "can't possibly change the law". (OK, feminists have changed the law and civil rights activists and other minorities have managed to change the law, but somehow mysteriously, we can't do that?)

So we're back to guns and force. Not sure what happens to the whole consent of the governed thing under that value system. If you set out to destroy a government that many people still support, where is their consent? If you no longer believe the Constitution is the right founding document, how do you propose to gain that all important consent for whatever scheme you favor?

Posted by: Cassandra at January 28, 2014 10:29 AM

Yes, Tex, I'm worried about due process. We all should be. Due process isn't "technical", and compounding the problem of violations of due process by committing more of the same doesn't help.

At the point where we say, "F*** due process - if I can't have it, it doesn't matter", civilization pretty much goes away.

I think I am at the end of my willingness and ability to write here. I have tried to keep going, but honestly I don't see the point anymore. That breaks my heart, but that's a personal problem I understand.

Thank you all for bearing with me all these years, and for the gift of your thoughts and commentary. They are something I will always treasure.

But I just can't do this any more.

Posted by: Cassandra at January 28, 2014 10:34 AM

I'm familiar with your concerns about human will unmediated by the law, Cass, and I agree that the law is an important tool that has its place. When we achieve a stable state -- which remains, always, a possible state in human nature, as ice is a possible state of water's nature -- the law is and ought to be binding.

But it is not only the law, nor only the state, that mediates human will. You're calling this will "might," but nullification need involve no violence. It can involve other institutions that mediate will as well: especially the family and the church, but also the social community.

It is those areas that are being pressured right now, and which are leading a response. (When you find yourself prosecuting the Little Sisters of the Poor, it may be time to re-examine the logic of your position.) Local communities are organizing, taking over political institutions with Tea Party groups and writing their state governments to push for more defiance of Federal power. Families are looking for ways to step aside from the intrusions, and shield their natural autonomy.

These are also institutions with varying manners of mediating human will. That they are sometimes operating in defiance of an unjust law does not mean that we are in danger of reversion to the jungle; but if we come to such danger, it is the fault of those trying to pressure these many other human institutions, and human individuals, into falling in line.

I will be sorry if you go. Of course I don't want you to go; but I respect you too much to soften the presentation of the position because the disagreement is upsetting. I must simply regret your decision, should you make it, as it would end a very long and treasured correspondence.

Posted by: Grim at January 28, 2014 10:51 AM

Once again, you are conflating things I have not addressed here (writing state governments, for instance, which is an ordinary exercise of citizenship wholly consistent with our present system and with the rule of law... and something I have frequently recommended!) with tactics I explicitly addressed here (a state accepting federal taxpayer dollars to purchase/rent land within the state, and then selectively blocking basic utilities to just that landowner - not everyone).

As for the Little Sisters of the Poor, that would seem to be strong evidence that the law CAN be changed by debate and dissent and public opinion rather than the reverse. We don't need to sanction people doing things we would never sanction were they to be used against someone we like/agree with.

The example I have repeatedly posed creates a clear precedent that basic property rights exist only at the whim of a state legislature, and can be done away with. Or that any state can actively work to sabotage national defense (which is broader than just "the military") by simply passing a law.

I'm concerned that when we sanction such tactics, we lose the right to complain when they are used against US.

Posted by: Cassandra at January 28, 2014 11:16 AM

The reason I appear to be conflating things is that I'm trying to describe a continuum of interaction, from the perfectly lawful through to resistance through to outright war. What I'm saying is that all of these things can be legitimate under certain circumstances; under others, they might be totally inappropriate.

Thus, it's one thing to ask the specific question, "Right now, is it appropriate to deny the NSA access to water they need to cool their computers in order to pressure them to provide greater openness about their activities v. American citizens?"

...vice the question you're actually asking, 'In principle could it ever be appropriate to deny basic utilities to a landowner as a means of furthering a political agenda?'

The answers to these questions come apart, because there are conceivable cases in which obedience to the law is binding and appropriate, and the law includes (as ours does) some sort of formal equality principle about how landowners are treated. (The Federal government is not necessarily entitled to claim equal treatment, however, as it is as a landowner formally unequal in a number of respects -- such as being able to seize the land for 'fair compensation' at a rate it determines itself.)

But we can find counterexamples: is it appropriate to cut off firewood to the British soldiers occupying Colonial Boston in the Revolutionary War? Others have a right to purchase it, after all. Would it be appropriate for the government to cut off the heat to the Branch Davidion compound? These cases are alike in that the principle of equal treatment of landowners is being violated, in one case by the citizens against the government (to destroy and replace the law); and in the other case, by the government against the citizens (to enforce the law). Yet neither counterexample to the general principle is very controversial.

So the real question is not, "Can it be right to do this?" The question has to be, "Is it currently right to do it?"

Posted by: Grim at January 28, 2014 12:09 PM

By the way, it may be worth remembering that the state considering nullification by denying the NSA water is criticizing the NSA from the left. If I agree that it might be correct to try it, I'm not giving in to left/right tribalism: I'm agreeing across the aisle.

That may mean I'm guilty of another sort of tribalism, of course: some sort of anti-Federal or pro-local tribalism. But that starts to sound less like a tribe than a principled agreement with people who aren't otherwise very much like me at all. :)

Posted by: Grim at January 28, 2014 12:19 PM

... we are talking about whether state legislatures are within their rights to effectively nullify (or greatly devalue) one of the most fundamental of rights - that of property ownership

The issue is that the very concept of rights come with assumptions: that all parties have faith that they will be upheld in a neutral and equitable fashion. I respect your rights because you respect mine. And should your attitude change, there is an authority (a parent between children, or police/courts between citizens) that will enforce that attitude on you on my behalf.

That independent and neutral authority is required before we can discuss what is within someone's rights.

Can a state nullify property rights. If there is an independent and neutral authority, then no, they can't.

I'm concerned that when we sanction such tactics, we lose the right to complain when they are used against US.

Exactly right. When there is that neutral authority it completely undercuts your case when you appeal to them for relief.

The problem is what to do when there isn't one. This is not bright-line territory as trust is never bright-line.


I'm sure most people here are familiar with the adage "turn the other cheek". Many take this to be a statement of pacifism, but I think that interpretation is incorrect. To be slapped on the right cheek in a right handed society is to be backhanded. This is not an assault, but an insult. To turn the other cheek is to deny the other person the ability to insult you and forces the other party to deal with you on equal footing and to resolve the dispute. Or else escalate the situation into an assault and deal with the consequences of that.

Nullification is that kind of a tactic. It forces the fedgov to deal with the state as a serious matter and not dismissively. Or else escalate matters and deal with the consequences of that.

It's an extremely dangerous tactic because you had better be prepared for the other party to choose to escalate.

Posted by: Yu-Ain Gonnano at January 28, 2014 12:30 PM

In short, Nullification's proper place is that ditch effort after losing faith in a neutral authority and before the shooting starts.

Posted by: Yu-Ain Gonnano at January 28, 2014 12:39 PM

If I may try to sum up:

Cass' position is that there is a bright line distinction and that Nullification is inappropriate as it's on the wrong side of it.

YAG's* position: There is not a bright line distinction and that Nullification is inappropriate as it's not commensurate with the offense on that spectrum.

Grim's position: There is not a bright line distinction and that Nullification is appropriate as it is commensurate with the offense on that spectrum.


*Because YAG loves speaking about YAG in the 3rd person**.

**Because if YAG continues eating like YAG does, YAG may become a 3rd person.

Posted by: Yu-Ain Gonnano at January 28, 2014 12:50 PM

My position on the discrete matter, or the general matter? In the discrete case I think it might be appropriate (and in any case, discovering the 'scale of the offense' is just what's at issue).

But as a general matter, I think we have to say that it can be appropriate; we are free, of course, to debate whether in particular circumstances it is.

Posted by: Grim at January 28, 2014 01:10 PM

First of all, thank you for your first of 3 comments, Yu-Ain. I was beginning to despair that anyone understood what I'm trying to point out.

I don't actually think there is a bright line distinction, though. The entire point of this post was to find out whether there is or not.

I began by saying that I have no problem with state nullification if the purpose is to provide standing to raise the issue in court. That seems to be how the system was designed to work, and once spd pointed that out, I saw the sense of it.

As a matter of tactics, I think there are certainly less injurious and dangerous ways than committing acts that trample property rights or unilaterally breach voluntary contracts or amount to sabotage of federal installations (or acts that we would like to use the rule of law to object to, were they directed at us by a state).

I can't buy off on Grim's assertion that nullification is an "unalloyed good" because it attacks "concentrated power". Almost NOTHING in life is an unalloyed good, frankly.

What I'm still hearing is that depending on the circumstances, pretty much anything is on the table so long as we're doing it, it's done for the "right reasons" (whatever that means), or we like the outcome. The consent of the rest of the populace seems to be taken for granted, but I'm not seeing how it's protected. Just as with liberalism, I see no limiting principle whatsoever.

What I'm saying is that people ought to stop obsessing about federal govt. power to the exclusion of the very real abuses that occur at the state level (including pretty much every abuse that gets cited as proof positive that Amerikkkkkkkkkkkkkka The Horrible is now a de facto police state - almost ALL of which involve state/local police enforcing state/local laws). If you transfer all the power to the States tomorrow, don't think abuses won't occur and people won't be hurt.

And I suspect we'll still be hearing that it's just "too hard" to persuade our fellow citizens so somehow this justifies all kinds of stuff. I'm just not hearing a coherent rationale for all of this. The system wasn't designed to turn on a dime or veer suddenly in new directions, and frankly that's a GOOD thing because people (me among them) are distinctly foolish and notoriously poor at predicting the consequences of their own decisions, especially on a broad national stage.

Posted by: Cassandra at January 28, 2014 01:27 PM

Yes, I was referring to the discrete case for the two of us. I believe Cass' position would be for the general case as my understanding of it is that she takes a comparatively more absolute view than we do: Nullification is either right or it is wrong. It does not "depend".

I understand the desire for that to be the case. Doing so provides a great many beneficial results: namely you can hold your opponent to it. If "it depends", well, you may think the action is on one side of the spectrum while your opponent thinks it's on the other. Without an absolute demarcation then you are both right and peaceful resolution isn't really possible: Strong man wins. It isn't really a case of "Might makes Right" as there isn't really a "correct" to be made. Might makes what is.

Cass is rightly concerned that this will not end well.

My own take is that this bright line demarcation requires a neutral authority: an honest broker if you will. Each party, even when they lose, can at least walk away believing that while that broker is wrong, at least they were honestly wrong. A broker who was honestly wrong is open to correction in the future.

Posted by: Yu-Ain Gonnano at January 28, 2014 01:40 PM

There's an important distinction between an unalloyed good and an "almost" unalloyed good -- the latter being my claim.

My view is that human nature is such that you get a neutral authority (or honest broker) usually only when relative power is close to equal. Concentrations of power are dangerous because they mean that the concentrated power need not care about your interests, because they can force your submission. Thus, they will focus on their own interests, and by definition then become non-neutral and non-honest as a broker or authority.

(In this I am, you might say, the anti-Hobbes; but it's my adaptation of Aristotle's general point that the difference in the good and bad forms of the types of governments he identifies is whether the power is self-interested or aimed at the common good. My sense is that they will be self-interested unless they can't be.)

So there are cases where de-centralizing power is not helpful, and in these cases we find the limited alloy to the good. In general, however, it's a good thing.

Posted by: Grim at January 28, 2014 02:25 PM

And I suspect we'll still be hearing that it's just "too hard" to persuade our fellow citizens so somehow this justifies all kinds of stuff.

In my rubric, the problem is that we were denied the ability to persuade our fellow citizens at all. It's only after the fact and due to an itself illegal act that we even know about it at all today.

I remember the furor of Bush's warrantless "domestic" spying. At least on that, one side of the conversation was foreign and Republicans defended it on that basis. The domestic side couldn't be used* because it hadn't been properly obtained and the foreign side never had any protections to start with.

Knowing that one side already objected when even one side was domestic and that the other's support was contingent on it *not* being purely domestic, the NSA decided to do it anyway. And to top it off, they did it in a way that made it illegal to even tell us they were doing it.

How can one convince their fellow citizens of something under enforced ignorance?

*At that time, the idea that the .gov would use the information to go after political opponents was just a paranoid conspiracy theory. Apparently, that wasn't so insane after all.

Posted by: Yu-Ain Gonnano at January 28, 2014 02:28 PM

My view is that human nature is such that you get a neutral authority (or honest broker) usually only when relative power is close to equal.

A parent does not have relativly equal power to their children. Nor does an older sibling need to have equal power to a much younger one. What is necessary is for both children to have faith that the parent is acting in good faith and not in a malicious or capricious manner.

Posted by: Yu-Ain Gonnano at January 28, 2014 02:32 PM

If you allow me some hyberbole, my take is that the older brother is poisoning the parents. They aren't dead yet, but they're looking pretty sickly.

Posted by: Yu-Ain Gonnano at January 28, 2014 02:40 PM

Good; but are those analogs to state relations? A state that takes on a parental view of its relationship to its subjects is... well, very much where the Obama administration would like to take us, really.

Normally either "paternalistic" or "maternalistic" would be suggestive that a state power has crossed a moral boundary and is acting improperly. It's the sort of thing that calls for a relative lessening of their power.

Now one thing the Founders did well is setting up competing levels of power, so that the states can fight off some Federal incursions, and the Feds can fight among themselves. Power can be balanced in that way too ("checked and balanced," we used to say, before we got rid of the checks and most of the balance).

Posted by: Grim at January 28, 2014 02:41 PM

The State would take on the role of parent in this analogy if the dispute were between two citizens.

In a dispute between the state and the citizen, then the state would take on the role of the older sibling (having the greater power). The role of parent could be either the courts or the electoral process.

Posted by: Yu-Ain Gonnano at January 28, 2014 03:04 PM

I hate to be the one to tell you guys, but IMO the state of Texas was being pretty darned intrusive telling a family that they were REQUIRED to keep a dead mother on life support.

It's hard for me to imagine anything more damaging or antithetical to family autonomy than that: "You can't let your wife/daughter die a natural death. You can't let nature take it's course because WE know better than you."

Was there an honest broker in that case?

one thing the Founders did well is setting up competing levels of power, so that the states can fight off some Federal incursions, and the Feds can fight among themselves. Power can be balanced in that way too ("checked and balanced," we used to say, before we got rid of the checks and most of the balance).

What the Founders did was to strengthen the federal government enough that the states could still fight off some Federal incursions, but the Federal government could provide for the common defense and other core functions (like FINALLY paying the soldiers who fought the Revolutionary War) that the Articles had utterly failed to provide for.

You keep presenting everything through the same lopsided framework in which the states are always right and the federal government superfluous and power hungry. That's not a balanced view of how things actually played out though.

As to the NSA, I don't really think any of us knows enough about this yet. As Grim says, that's a problem. We're effectively relying on the word of a traitor (Snowdon) to tell us what the NSA is doing.

Now maybe you trust that man but I do not. Nor do I completely reject everything he says. But I sure as hell don't trust him, nor do I trust the press (talk about honest brokers!) to do the work to get the story right. Nor do I trust the NSA completely.

They are hamstrung, as they were during the Evil Bush Years, because they can't just spill all the beans as Grim appears to want them to. He knows why they can't do this and has acknowledged it at least once.

I am concerned, but I'm also concerned about the veracity and motives of Snowden and his ilk. These are people who have openly sympathized with our enemies and do not (IMO) have the good of this country at heart. If he did, why did he release so much damaging information that had NO rational relationship to this question?

The whole Wikileaks crew can burn in hell for all I'm concerned. I'd even pay for the lighter fluid.

Posted by: Cassandra at January 28, 2014 03:19 PM

I hate to be the one to tell you guys, but IMO the state of Texas was being pretty darned intrusive telling a family that they were REQUIRED to keep a dead mother on life support.

If you take the position that the unborn child had no enforcable rights itself, this is exactly correct.

But the hospital (believing it was reflective of the state legislature's view of rights) thought otherwise, and that was the dispute.

Was there an honest broker in that case?

The court was in a position over a dispute among two individuals over their respective rights: the husband and the unborn child (the State Legislature/hospital acting in proxy for someone unable to represent itself).

I think the court was wrong. The mother, being dead, doesn't have much in the way of rights inmy opinion. The unborn child, even with extremely limited rights would, I believe, still have greater rights than the mother.

The court, at least in theory, has no dog in the fight and was not barred from having the information needed to make a judgement by either party. So *I* would conclude that the courts were an honest broker. I think it was wrong, but it's honestly wrong.

Whether my argument that the courts are an honest broker is persuasive is a matter of opinion and why I say that no bright line is possible.


As to the NSA, I don't really think any of us knows enough about this yet.

If the NSA had its way we still wouldn't know about it and never would. And that's the problem. This should have been brought to debate first. The old saw that sometimes it's easier to beg forgiveness than ask for permission really doesn't sit well with me.

Posted by: Yu-Ain Gonnano at January 28, 2014 04:01 PM

You don't have to think the child had no rights to see something wrong with the state ordering a husband to keep his dead wife on life support.

I've already stipulated that the child did have some rights. But the child also, in the natural order of things, would already have died (in which case, absent government intervention, it has no rights for the same reason the mother has no rights).

The government created this situation by playing God.

Any time the state forces extreme medical treatment in a case where, "but for" those measures, death would already have happened ought to concern people regardless of whether the patient is pregnant or not.

And frankly, though I understand and sympathize with your position, I can't see how anyone who claims to be worried about the power of the state would sanction allowing the state to order a family to keep their dead loved one on artificial life support. What's next? Ordering people to freeze their dead just in case some medical procedure is invented someday to reverse death?

Posted by: Cassandra at January 28, 2014 04:46 PM

If the NSA had its way we still wouldn't know about it and never would. And that's the problem. This should have been brought to debate first.

Should we debate war tactics and strategy in public so our enemies can sit in?

I have written before about entirely legal warrantless searches. This isn't a simple or easy to understand topic even when you've researched it, so I tend to reject the notion that reading a few news articles in any way prepares people to understand the topic. I don't feel I sufficiently understand it now, even having researched it quite a bit during the Bush years.

And I'm pretty sure the vast majority of the American public has NO idea why legal warrantless searches are upheld by the courts (hint: the whole search and seizure thing was designed to prevent illegally obtained evidence from being used to prosecute people in court - NOT with use of same for interdiction).

Posted by: Cassandra at January 28, 2014 05:22 PM

I'm not sure why you think I'm intent on suggesting that states are always wonderful. They're governments ("states") too; they also need to be constrained at times.

The point is that the law, whomever is exercising it, is not a good in itself. It's a form of power that, in a certain state of affairs -- the state like ice in the analogy -- has a genuine legitimacy and should be respected. At other times, it does not, and should be defied. No government should be allowed to become so powerful that it cannot be defied.

Posted by: Grim at January 28, 2014 05:39 PM

Any time the state forces extreme medical treatment in a case where, "but for" those measures, death would already have happened ought to concern people regardless of whether the patient is pregnant or not.

If it happens to an adult whose wishes to the contrary are known, I agree completely. If it happens to an adult whose wishes are known to want extreme medical treatment and someone tries to deny it to them, I do want the state to interject.

My concern, however, was for the non-consenting non-adult whose wishes are not even knowable. I think that is properly debated as a separate matter than when a sole individual is implicated.

I can't see how anyone who claims to be worried about the power of the state would sanction allowing the state to order a family to keep their dead loved one on artificial life support.

I truly am sypathetic to this argument. As you said, how can I not be?

And if this were over just the one person I would agree completely. Not the state's business about what a person does with their own body. But this is complicated by the addition of a second person. The state does have a proper interest in resolving the competing rights between individuals. I can't get to a place where that issue is resolved by declaring that one party doesn't legally exist.

I do want to keep that involvement to an absolute minimum. But that doesn't necessarily mean zero.

And at least the issues were debated on the front end with the legislature openly voting for what was at issue. Even if one didn't like the results of said voting on the front end or the results of the conflict in the courts on the back end.

Posted by: Yu-Ain Gonnano at January 28, 2014 05:42 PM

Should we debate war tactics and strategy in public so our enemies can sit in?

I'm sorry, are we at war with the American citizenry?

So declaring the wholesale collection of American citizen's communications to be a war tactic isn't very persuasive to me.

That's why I was OK with the "half domestic" spying. Dropping bombs on foreigners in a theater of war is a completely legitimate war tactic.

Sending FBI agents to your house isn't a war tactic and can't be justified, to me, anyway, on that basis.

Posted by: Yu-Ain Gonnano at January 28, 2014 05:48 PM

To some extent I do accept the NSA as a military type organization. But I would not accept the army bring quartered in my home as a war tactic either.

And to some extent that's the issue. For nearly all intents and purposes the govt has an agent in your home.

Posted by: Yu-Ain Gonnano at January 28, 2014 06:03 PM

This is a topic on which reasonable people can disagree. I don't see it that way at all.

FWIW, I'm not sure I'm fine with what they're doing, but honestly - everything we do these days is "spied upon" to a vastly greater extent than most people realize. Privacy - especially over public airwaves or on the Internet - is (IMO) pretty much a fiction. We're not "in private", the expectation of privacy just isn't the same as it would be if we were sitting inside our homes having a conversation with another human being, and I happen to think the law should reflect those nuances.

I'm perfectly happy to admit and entertain opposing viewpoints - like I said, this isn't a simple issue. But I don't accept for one moment that collecting metadata about calls carried over public airwaves is in any sense comparable to being forced (at your expense) to feed and house a soldier.

These things just aren't the same.

Posted by: Cassandra at January 28, 2014 06:59 PM

To return to an earlier point I let slide before, my sense is that the Declaration's "created equal and endowed by their Creator" is better than the 14th Amendment's "equal protection of the laws" on three grounds.

First, insofar as we shall have equal protection 'of the law,' that could be no protection at all. Formally, so long as this (non) protection is provided equally to all, there is no violation of the legal principle.

Second, what constitutes 'equal protection of the law' is defined by the law itself, so that there is no independent standard of whether the guarantee is being met. There are a number of places -- claims to a right of abortion, affirmative action, these new mandates for free birth control for women only -- where the law is not equal at all. Your only appeal is to the laws that created the standard and declared it equal. That appears to let the principle be defined by the very people it is intended to constrain. That seems like a severe weakness even conceptually, roughly akin to allowing a man to be the judge in his own case.

Third, we can avoid the problems we encountered with the bizarre idea of 'equality of respect' if we have a single actor who can explain what is meant by it. The relationship between a Creator and his created is the same for everyone, which means that we can talk about a soul that is equally worthy of respect because it is equally loved by its creator. We have the independent standard of what equality might mean, as well as a stable relationship that can allow us to talk about respect in terms of 'more and less' (or equality, for that matter).

I don't expect, nor especially desire, any sectarian church to be defined as the standard-setter for the country. I do think that it makes sense to talk about a "Christian nation," though, as to distinguish us from an Islamic or a Communist one. But I think being ungrounded and unmoored from these moral principles -- so much so that we now are told we cannot pass laws just to express a moral opinion as a community -- is a great harm.

Posted by: Grim at January 28, 2014 07:06 PM

Hi Texan,
The term 'Wall of Separation' [between Church and State] used by Jefferson was never discussed during the drafting or ratification of the Constitution; it was a term he coined years later in describing what he understood (or maybe wanted?) to mean. The original intent of the anti-establishment clause was simply that; to prevent the state from establishing a(ny) particular religion as the officially recognized (and much worse, enforced by) state religion.
This was very much on the colonists minds because many of their forebears fled European nations with state sanctioned religions which expressly persecuted those that did not profess or follow that religions detailed requirements.

Cass/Grim/Tex,
Due Process of law is the only real protection we have; neither the Criminal or Civil 'Justice' system ever promises actual *justice,' merely that certain specific rights will be protected and due process of law be applied evenly to all (while we can quibble over how equal, the same basic rules apply to all, though not all can afford to avail themselves of each rule).
. . . and that directly implies that no gov't official can arbitrarily decide to apply different rules/standards for *any* reason!
>>> therefore neither local or state officials can refuse service to feds simply because they don't like fed policy. They have access to redress through either the judicial system (note some NSA cases *are* being litigated), or better yet through political process (elections).

You are a fun guy YAG!

'Dead' Spot On about the Texas brain dead pregnant woman on forced life support Cass.
Incredibly intrusive abuse of gov't power.

Best Regards,

Posted by: CAPT Mike at January 28, 2014 09:46 PM

Second, what constitutes 'equal protection of the law' is defined by the law itself, so that there is no independent standard of whether the guarantee is being met. There are a number of places -- claims to a right of abortion, affirmative action, these new mandates for free birth control for women only -- where the law is not equal at all. Your only appeal is to the laws that created the standard and declared it equal.

That's not true, though. You have recourse to both your state's constitution (if it's a state matter) or the federal constitution (if it's a federal law at issue). Just because no one has sued yet on the contraceptive discrimination in the ACA doesn't mean they can't or won't sue.

Bakke is just such a suit on affirmative action.

Third, we can avoid the problems we encountered with the bizarre idea of 'equality of respect' if we have a single actor who can explain what is meant by it.

That rather presumes the single actor can speak directly to us, which is not the case with the Creator. Plus, you seem to forget that a lot of folks don't agree that there *is* a creator - basing our entire government on an authority many people don't even think is real is not going to settle anything because you (and people like you) are not the only ones whose consent is required.

I don't expect, nor especially desire, any sectarian church to be defined as the standard-setter for the country. I do think that it makes sense to talk about a "Christian nation," though, as to distinguish us from an Islamic or a Communist one. But I think being ungrounded and unmoored from these moral principles -- so much so that we now are told we cannot pass laws just to express a moral opinion as a community -- is a great harm.

I think being ungrounded and unmoored from these principles is harmful too, but that doesn't make me willing to impose them by force/fiat on everyone. What prevents local communities from passing laws that express moral opinions (only in rare cases, by the way - the norm is that most laws express moral opinions: they are normative in nature) is the Constitution - the very source of basic rights we have been saying is a *good* thing!

We don't get to pick and choose which Constitutional rights will be protected, and which won't.

Posted by: Cassandra at January 29, 2014 08:21 AM

At the risk of leaving another comment that will cause you to threaten to quit blogging (and I know just how you feel): It's not that I don't care about due process, or that I don't think the federal government should receive due process when it's protecting its important property interests. It's just that I'm certain the federal government has more than enough resources to protect its own property interests and is sure to receive at least that process which is due, if not much, much more, without my needing to twist my hankie. It will be a long time before my sympathy can be engaged for a federal agency; in the meantime, they get from me exactly what they can compel. Sorry if that makes you feel discouraged about the state of the union. I'm quite discouraged about it myself, and my proposed solution has very little to do with examining areas in which I can be more helpful to the feds.

Posted by: Texan99 at January 29, 2014 11:07 AM

Tex: (hope you don't mind if I call you "Tex")

Thanks for the clarification. I do appreciate it.

I'll admit that I am feeling very discouraged right now about the state of the country, blogging in general, and the state of our politics. Your comment didn't cause any of this, but I do consider you a friend and you are someone whose opinion is important to me.

I would be lying if I tried to pretend otherwise, and more I would be denying that I do take your comments very much to heart (as I do those of most long time readers' and all of my friends').

Last night, just listening to the SOTU address playing in the other room and the Unit and I both got so mad we had to turn it off. I promised myself I'd never be one of "those people" and now I am.

So FWIW, I understand :)

Posted by: Cassandra at January 29, 2014 12:16 PM

That's not true, though. You have recourse to both your state's constitution (if it's a state matter) or the federal constitution (if it's a federal law at issue).

Which means that I have recourse to the government to interpret the law binding the government. This can sometimes work, of course: an honorable man often binds himself to a fair interpretation of principles, even though no one else can really make him do it. That is, a man can sit in judgment on his own case and sometimes do so fairly.

It's very hard, though, and harder when power and profit are concerned. The 10th Amendment is a great example. In theory it doesn't get up the Federal court's nose one way or the other whether the Federal executive is forbidden from doing something because the power isn't explicitly delegated. In practice, the courts have interpreted the limit away. It exists in the constitution -- I can appeal to it -- but the government has refused to be bound by the law that the government has power to interpret.

It's a problem structurally to leave interpretation of the law in the hands of the state. It would be wiser, in the next iteration, to find a way to further separate the power of constitutional interpretation so as to get it wholly out of the hands of the government, and not just in a separate branch. Perhaps it could be put before juries of randomly selected, basically qualified citizens.

That rather presumes the single actor can speak directly to us, which is not the case with the Creator. Plus, you seem to forget that a lot of folks don't agree that there *is* a creator...

As for the second point, this is one reason John Locke thought that atheists should not be allowed to serve in government. I don't go as far as that, but I think they should be asked to serve (e.g. on juries) in that spirit, even if they think it's an exercise in role-playing. I'll explain why.

The idea of the Creator, whose will is rooted in love for each individual soul, is an independent standard that is a helpful one even if you believe it's an exercise in imagination. Consider being asked to serve according to this charge: "The men before you are to be thought of not as having rights created by the law, but as having rights from God, who must be satisfied that they have been fairly treated by you."

Even if you consider that an exercise in role playing, it'll lead to better results. (That fact might itself be reason to reconsider a belief.) For those who do believe, it's the most serious kind of charge: the sort of thing that caused Sir Thomas More to behave so excellently, and at such a cost.

We don't get to pick and choose which Constitutional rights will be protected, and which won't.

I'm sworn to the Constitution by the oath I took many years ago. I don't expect it, or the United States, to last much longer, precisely because of the damage that is being caused by the wearing away of the core of moral consensus that is necessary for any society . I'm thinking about what to do to improve in the next iteration.

One thing that I think we need to do is to return to a state founded on the idea of basic, common Christian values. We should recognize that the idea of liberty (and equality!) that we have is an essentially Christian ideal, growing out of this idea of a Creator who loves each man and woman the same, and who expects them to be treated fairly. This is the only ground for those principles that works. That doesn't make America (or its descendants) opposed to other faiths. It just happens to be grounded in a particular religious tradition, and its core assumptions wither outside of that tradition.

So I believe, anyway, after long thought and study.

Posted by: Grim at January 29, 2014 02:21 PM

When I say I don't expect it to last, I don't mean that I'm giving up. I am still doing my best to do my duty as a citizen, and to uphold the oath I took. I wrote my state Senators just yesterday, as our legislature is in session.

But there may come a time -- I think it's coming soon -- when the thing passes regardless of what we do. At that time, we should really take stock of why it failed, and try to do better next time.

As you said yourself, the Founders may not be the best guide for where we are now. The idea behind the antiestablishment clause was understandable given the history they'd seen recently: the great religious wars of Europe. We don't want to make the mistake of trying to establish a state religion, a particular church with a particular doctrine.

But we do need to recognize the truth that Socrates discovered even in ancient Greece: that there are only two choices about morality, which is that either men decide it is whatever they want, or it has to be put in the hands of 'some god.' The Christian faith enshrines the basic principles we wanted all along. It's a guard for the soul of the individual, but also for the justice of the nation.

Posted by: Grim at January 29, 2014 02:54 PM

You're doing better than I am, Cass. Neither of us even considered turning the darn thing on to begin with. I figured there would be at best 30 seconds of content, and I could read about that if necessary today.

Once I decide nothing is coming out of a man's mouth but empty lies, I decline to listen further. He'll be gone in a couple of years; I'll try to give his successor a fresh start. In the meantime, I consider that I've made heroic progress in regaining the ability to hold civil conversations with my sister, my next-door neighbor, and my oldest friend, as long as we resolutely avoid politics and healthcare.

Feeling sorry for the NSA? Baby steps. Baby steps.

Posted by: Texan99 at January 29, 2014 04:01 PM

PS, and thanks for the kind words in response to such a flinty series of comments. My mood is not fit for man nor beast lately. I can't remember when I've ever stayed so bitterly angry for so long.

Posted by: Texan99 at January 29, 2014 04:06 PM

No need to be so grim, Grim.
Our society has been through dark periods before, yet has also recovered. It's cyclical, with swings varying in duration and intensity. Younger people actually became relatively more conservative after the excesses of the 60's & 70's.
Heck, we've already had two Great Awakenings right here!

Hi again Tex,
Stay.Mad.and.Vote.in.2014!
Plus vent on blogs, write letters, maybe volunteer or donate to a favored local candidate.
I'm hoping Obama has poisoned the well for Dem pols, just like Jimmah did.

Very Best Regards,

Posted by: CAPT Mike at January 29, 2014 05:18 PM

PS, and thanks for the kind words in response to such a flinty series of comments.

No worries :) I have been feeling more than a bit "flinty" myself of late. I get quiet when I'm feeling that way because I'm afraid I'll have another attack of Online Tourette's :p

Posted by: Cassandra at January 29, 2014 05:25 PM

Which means that I have recourse to the government to interpret the law binding the government. This can sometimes work, of course: an honorable man often binds himself to a fair interpretation of principles, even though no one else can really make him do it. That is, a man can sit in judgment on his own case and sometimes do so fairly.

"The government" isn't a monolithic entity, though. That's why we have 3 independent branches, one of whose missions is to serve as an impartial referee.

It's a problem structurally to leave interpretation of the law in the hands of the state. It would be wiser, in the next iteration, to find a way to further separate the power of constitutional interpretation so as to get it wholly out of the hands of the government, and not just in a separate branch. Perhaps it could be put before juries of randomly selected, basically qualified citizens.

I don't see how that would work, Grim. It would result in even more uneven (and biased, and unfair) application/interpretation of the law. The average citizen (and I include myself in that august group) doesn't have the background to understand the laws as a system. And there are often conflicts that must be reconciled, etc.

I deal with amateurism enough in my day job to know what an absolute DISASTER it can be. I've never understood what makes people think any randomly chosen person can take on a complex task with no training/education and do a good job. All that happens is the job takes 2-3 times as long, the quality is poor, and some other schmuck ends up cleaning up the mess (and that cleanup takes longer than it would have taken to do the (**&^%$#@@!@#@$^%&* job right in the first place).

Posted by: Cassandra at January 29, 2014 05:32 PM

Grim:

I completely agree with your sentiments about the moral qualities needed in a self-governing people.

But here's where I have such a problem with a lot of what passes for conservatism today: we rail and rant about the decline of morals, but we're completely unwilling to live in the kind of society that fosters that moral backbone.

To paraphrase the Grand Inquisitor, we refuse to restrain men (and women)...or judge them in any way (misandry! shaming! prudes! scolds! how dare you judge!), and then expect of them virtue.

Human nature doesn't work that way, though.

Posted by: Cassandra at January 29, 2014 05:38 PM

Capt. Mike:

I know that few rise to the exalted rank of O-6 without being men (or women) of accomplishment, character, education, and decision. Nevertheless, I don't share your opinion.

Cass:

I think we agree more broadly than is probably apparent from the stiff arguments we have at times. Your last comment is one with which I have no real disagreements, though perhaps when I was younger I felt differently.

"The government" isn't a monolithic entity, though. That's why we have 3 independent branches, one of whose missions is to serve as an impartial referee.

That's the reason I used the 10th Amendment as an example. There's really no reason the Federal courts shouldn't find that it is binding, since it doesn't affect their power (which is secured explicitly in the 14th). Yet they defer to Congress' interpretation of its authority, even when they must stretch or even rewrite the law to find a way to make it work, as in the ACA ruling.

Why do they do this? Well, partially it's because of precedent -- but that just makes it worse. It means that it's not one or two courts or cases, but the general trend for decades to do it this way.

Why? Well, that has something to do with Franklin Roosevelt's cowing of the court through his failed court-packing scheme. There are other factors, too. But, separation of powers hasn't proven an adequate safeguard for the very serious power of interpreting the Constitution -- which has proven to mean the capacity to amend or alter it freely, with only five human beings needed (instead of a 3/4ths majority of both houses, and a similar supermajority among the legislatures of the several states).

I am open to suggestions on how to better place the power in the next iteration. However, I think the move away from the formal amendment process to a court-based "amendment-by-SCOTUS-ruling" process is one of our major points of failure. We need to find a way to structure things to better secure the power to fundamentally alter the basic law.

Posted by: Grim at January 29, 2014 11:12 PM

Hi again Grim,
Happen to very much agree w/ your views on the 10th amendment, and perhaps even more so in the inappropriateness and inadvisability of 'amendment-by-SCOTUS-ruling' process.

BTW, life is much more fun when one chooses to see the glass as 'half-full.' America has long been a nation of opportunity, and a beacon of hope.

Best Regards,

Posted by: CAPT Mike at January 30, 2014 12:54 AM

What's that old saying? Be a pessimist by policy and an optimist by temperment?

Easier said than done, but good advice. I think Grim is trying to be ready for what he fears is coming, if I may be permitted to 'womansplain' :p

Posted by: Cassandra at January 30, 2014 09:14 AM

I think we agree more broadly than is probably apparent from the stiff arguments we have at times. Your last comment is one with which I have no real disagreements, though perhaps when I was younger I felt differently.

That gives me real hope, Grim. Of all the things that are worrying me right now it's that last - the yawning gap between the outcomes so many conservatives say they want/support and the rules they're willing to live by - that depresses me the most. If the people who openly want strong families, strong marriages, and a less debased culture aren't even willing to walk the walk, we're really screwed as a society.

Posted by: Cassandra at January 30, 2014 09:16 AM

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