An Adult Conversation About Article V & Nullification
By KrisAnne Hall, JD
Article V Conventions and Nullification are NOT mutually exclusive, nor is one the magic pill for all of our federal problems. Each is a legitimate Constitutional solution, but each has a different aim and application. Each plan has its inherent dangers and there are legitimate concerns that should be considered and these dangers guarded against. They can be used together in the defense of Liberty as long as we understand each in its own context and consider the pitfalls involved. It must be noted that we are having this discussion because of the very fact that we have stepped so far out of the Constitutional boundaries given to this government that we are operating practically in a post-Constitutional America. At this point, it is unlikely that any solution will be perfect or without peril.
Two different animals
Article V Convention is a long term fix aimed at making corrections at the federal level. Nullification is an immediate defense at the state, local and individual level. Article V aims to make structural changes or further clarifications to the operations of the federal government and its relation to the states by amending the Constitution. Nullification aims to make no changes to the current Constitution, but is simply an assertion by the individual sovereign states and communities of the authority they already possess and a declaration of the limitations to federal power already defined by the Constitution. Article V convention in the current context seeks to fix what is assumed to be broken or lacking in the federal system and is to be used in the rarest of circumstances. Nullification, as intended by the framers, was to be a part of “republican maintenance,” whereby the central government was to be continually kept in check by its masters, the people through their states.
Both have their merits and their dangers. Let us take a look some concerns that the framers themselves noted. We should keep these things in mind so that we can work TOGETHER to defeat the common enemy…TYRANNY.
Some of the challenges with Article V:
WHO are the delegates and what is their motivation?
According to James Madison in Federalist 49, one significant problem with conventions is – WHO will be the delegates? Madison discusses two options for choosing delegates: either through the Legislators or through popular vote of the people. In each case he believed there was cause for concern.
In modern terms, when delegates are chosen by the legislators, what we could see are appointments based upon party loyalty, power or popularity rather than upon Constitutional expertise and dedication to Liberty principles. When the delegates are chosen by popular vote, typical election dynamics could determine the outcome. Voters would vote based upon party popularity and perhaps even a “lesser of two evils” and the same corrupt politicians would now be “fixing” the very problems they created. Madison framed the outcome this way, “The same influence which had gained them an election into the legislature, would gain them a seat in the convention… They would consequently be parties to the very question to be decided by them.”
According to Madison, the real difficulty with delegates boils down to “motivation”. What will be the motivating force behind the delegates and their amendments? Madison recognized that the only reason we have our current Constitution is that the framers had just come from a bloody revolution that kept the delegates focused upon LIBERTY and that forced them to set aside their party politics and personal motivations and it was still no easy path:
“We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government;” ~ James Madison Federalist 49
Madison seems to be telling us that without some overriding and unifying motivation, the convention would likely degrade into another Republican vs. Democrat drama. If we cannot get delegates that are properly constitutionally minded rather than driven by political gain and greed, this will never benefit us.
WHEN will it be done?
One practical difference between nullification and convention is the time each takes to implement. Any advocate of Article V must admit that this is a LONG TERM goal and not a quick fix. To call convention, choose delegates, agree on amendments, an Article V convention could take several years, possibly 5 to 10 years. Adding to the time frame is the Article V requirement of 3/4 ratification by the States. That means EVERY AMENDMENT must be agreed upon (debated), individually, by 3/4 of the States to ratify. During such a time frame, it would be prudent to use nullification to puts the brakes on at the state level until corrections (if truly needed) can be made at the federal level.
What will be the scope and impact?
Probably the most debated aspect is the notion of a “runaway convention.” Some say the ¾ ratification is a check on a runaway convention, that ¾ of the states would never go along with a total rewrite of the Constitution or the addition of harmful amendments. Of course, ¾ of the states DID ratify the very harmful 16th and 17th amendments. Tinkering with the foundation is always risky business. SO at the end of the day it may well come back to the main issue of the motivation, focus and education of the people and their delegates. What about the opposite of a runaway convention? What about a do-nothing convention? What if we do open-heart surgery on the Constitution for something as cosmetic as a balanced budget amendment?!
First, Nullification is a constitutional solution not because it is enumerated per se, but because the Constitution is a contract (technically a compact) among the States that created the federal government. The States are the parties to the Constitutional Contract and the federal government is the PRODUCT of that contract. Inherent in EVERY contract is the right of the parties to that contract to control the product of the contract. The States are the representatives of the people in this contract and have a DUTY to keep the federal government within its constitutional boundaries and thus protecting the rights of the people. It is inherent in the very nature of the Constituion. Nullification is that act of the PEOPLE through their States to keep the federal government within in its “limited and defined” boundaries and should be as regularly carried out as an oil change in your car. Madison states this principle again in Federalist 49:
“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”
This is not the forum for a full explanation of Nullification. If you are unfamiliar with this term or have in the past heard that it is not an option available to the States for a myriad of reasons, please take the time to read the FACTS about nullification before you give in to any one position. THIS LINK will get you started.
Fear of Nullification
The first problem with nullification is fear and lack of education. For some, nullification’s association (rightly or wrongly) with the Civil War and slavery (despite the fact that it was used to resist slavery) throws a veil of fear over the entire issue. So care must be taken not to add fuel to the fire of racial division because those who capitalize on such things will use it for their own design. Many mistruths and misconceptions regarding this Liberty solution must be overcome in order to even utilize this option. Retorts such as “the South lost the war,” “SCOTUS says no,” or “it’s the law of the land” are common among those ignorant of the concepts of State and local autonomy and nullification.
Even as nullification happens all around us today with, States legalizing marijuana and same sex marriage; states denying the federal government power to enforce the indefinite detention provisions of NDAA 2012 and Obamacare; local and state governments refusing to enforce federal gun restrictions, some will still say that nullification is an obscure and outdated concept. With more than 100 years of distorted history, overcoming fear and lack of education surrounding Nullification is no easy task.
Participation by the States:
Whereas Article V requires 3/4 of the States to ratify any amendment, Nullification can be achieved on a State by State basis. However, many staes that would at first glance be thought to be inclined to resist federal encroachment are often controlled by “federal supremacists,” those who believe that the federal government is superior to the states. Many state legislators do not understand the true nature of the states’ relationship to the federal government and they understand the states’ right and duty to interposition even less.
Federal Enforcement of Unconstitutional Acts
One more roadblock to nullification is the acquiescence to federal bullying and bribery. The dirty little secret is that the feds generally do not have the resources to enforce most of its dictates; it must co-opt state and local resources. This is done primarily through bullying and legalized bribery. The feds use state EPA, state DOE, state and local law enforcement elements to enforce its demands. In most cases the state and local entities comply. Without such compliance the federal dictates would be ineffective and in most cases unenforceable. The most obvious attempt at forced compliance will be through the withholding of federal funds. Any State who intends to maintain their supremacy over the federal government will have to be able to become self-sufficient in the face of federal funding withdrawal and brave leaders will have to be willing to call the bully’s bluff. In an arena where it’s all about the money and in a political system where politicians climb the ladder of power by giving and receiving favors this is also a significant obstacle.
Sometimes opponents of nullification characterize the concept as “ignoring laws you don’t like.” The question at issue in nullification is not whether we like the law or not, the question is whether the law is constitutional or not. A possible danger is that states may wish to “nullify” inherent natural rights, such as those protected in the bill of rights from the abuse of the federal government. When such tyranny arises on the state level, the citizens must be ready to resist this tyranny as well, or else choose to live as slaves.
The REAL Solution lies within the operation of BOTH methods!
What Article V conventions cannot do to stop tyranny now, nullification can if successfully implemented accomplish with near immediate effect. Where Nullification ends, Article V provides a long term solution to strengthening the restraints on the federal government, if done by the right people for the right reasons in the right way. If we DO NOT engage in Nullification now, we will never survive as a republic long enough for the Article V Convention to have any hopes. If we just engage in Nullification and do not follow through with shoring up the established boundaries, I believe we will dissolve into individual sovereign States and the Republic will die.
We will not succeed if we are so caught up in our own causes that we have to defeat everyone else’s. That is egocentric and immature. Truth be told, we will not succeed without all the efforts of all the people working together in the defense of Liberty. We need nullification daily to maintain the Republic, yet if we continue to allow the foundation to erode, we may indeed need a convention to right the ship.
So let’s approach the defense of Liberty like grown-ups. Let’s work together instead of trying to punch each other in the eye to elevate ourselves.
I have confidence that when all is said and done, our future will look back and say, “Coming up with a new and better form of government was nearly impossible. The original Constitution itself was not the problem; it was the ignorance of the people that lived under it.”
If you want more detailed information about this discussion go to my book Sovereign Duty! Also available thru many online book stores
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