Nullification vs. Article V Constitutional Convention: Where is the Honest and Open Discussion? | Eastern North Carolina Now

    The bicentennial should be an occasion of celebrating that magnificent document. It is our basic law; our inspiration and hope, the opinion of our minds and spirit; it is our defense and protection, our teacher and our continuous example in the quest for equality, dignity and opportunity for all people in this nation. It is an instrument of practical and viable government and a declaration of faith -- faith in the spirit of liberty and freedom.

    Constitutional attorney, Publius Huldah, also rejects the Article V Convention as the effective means to restore our country to its intended constitutional republic. She takes the position that as the rightful depositories of government power are the Individuals and resistance to tyranny is not only a natural right but a duty. She therefore supports the rightful remedy of Nullification to enforce obedience to the Constitution. She writes, in her article Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!, that the Oath of Office, addressed in Article VI, last clause, requires both federal and state officials to support and defend the Constitution. This requires them to refuse to submit to  -  ie, to nullify!  -  acts of the federal government which violate the Constitution. "This is how they "support" the Constitution!" As to Mr. Levin's assertion that an Article V Convention is the proper, safe, and legal mechanism to restore constitutional limitations to a government historically unwilling to abide by them, she argues that while he admitted (on pg. 15 of the book) that the process has the potential to turn into a "runaway" convention, he never successfully explained why Article V can effectively prevent that from happening.

    Publius writes: "The claims of the nullification deniers have been proven to be false. To persist in those claims  -  or to do as Levin seems to do and ignore the remedy of nullification  -  is intellectually and morally indefensible. Instead, they continue to tell us that what we need is a "convention of the States" to propose amendments to the Constitution, and that this is the only way out. They tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is to amend the Constitution! Do you see how silly that is?"

    Michael Lotfi, the Associate Director of the Tennessee Tenth Amendment Center, wrote an excellent article comparing the Article V State Convention remedy of Mark Levin to Nullification, the remedy of Thomas Jefferson and James Madison (collectively, the authors of all our foundational documents, except the Articles of Confederation). The article is entitled: Nullification vs. Article V Constitutional Convention: Why Levin is Wrong. (See prior post on this NC TAC site). He wrote: "Calling for a convention to amend the Constitution with amendments shows absence in sound judgment." Further, he wrote: "Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution."

    Lotfi talks about some of the unconstitutional laws, agencies, and actions that the government has imposed over the years  -  "the NSA, NDAA, ObamaCare, the Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments." He asks how a process that potentially may take as long as 20 years but more likely won't work at all will address these gross usurpations. We must not forget that these amendments were adopted as EXPRESS limitations on the federal government. The Preamble to the Bill of Rights explains it best: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

    How is it that the government can find a way to limit the effect of the first ten amendments when those amendments were intended to limit the government and keep those particular objects OFF LIMITS with respect to the federal government?

    Mr. Lotfi gives a wonderful explanation of the legitimacy of Nullification. He writes:

    The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (emphasis added).

    In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.

    The Ninth Amendment expounds even further the right to nullification. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.

    Just as so many intellectuals have requested that Mark Levin stop the name-calling and have an intellectual, honest, and dignified debate on the topic of Nullification, Mr. Lotfi has done the same. He ends his article with this message: "Levin is perhaps the most appreciated and admired political talk show host in America. Rightfully so, he has earned his accolades. However, with such clout comes an incredible responsibility to not only seek truth, but to display the humility and courage to admit when you are wrong."

    Mr. Lotfi hit the nail on the head in his article with respect to Nullification. He addressed what I believe is the most powerful of the opponent's arguments  -  Madison's remarks following the Nullification crisis of 1832. Most are too uneducated or too shallow in their willingness to read more than a page of history and so they just don't get that Madison was trying to explain that the particular situation wasn't one that can be rightfully addressed by nullification. Nullification, at its core, requires an act by the federal government that exceeds the powers delegated to it under the Constitution. Congress rightfully has the power to legislate regarding tariffs. The Tariffs of 1828 and 1832 (tariffs of abomination) were within Congress's rightful exercise of power. And so nullification was not the proper or rightful remedy to challenge it or to assert as the basis for non-compliance. The real argument was the one that Calhoun originally made, which rested on the Compact Nature of the States. He claimed that when the States came together and drafted the Constitution and then ratified it, they were guided by the concept of social compact. They agreed to give up some of their sovereign power (a "burden," in contract terms) in return for the understanding that the federal government so created (the creature) would be their "common agent" and would serve them equally (the "benefit," in contract terms). Even James Madison, and many of our other founders, acknowledged the compact nature of the Constitution. At the VA Ratifying Convention, Madison prefaced his speech with these words: "A Federal Government is formed for the PROTECTION of its individual members." Calhoun argued that under the compact nature of the Constitution, the common or federal government was supposed to serve all the states equally. The tariff, as you know, benefitted the North exclusively, at great detriment to the South. This unequal treatment of the Southern states is what really led to the secession of the Southern states  -  not the issue of slavery. Lincoln's election simply meant "more of the same."

    Again, as Publius pointed out in her article Mark Levin Refuted: "The claims of the nullification deniers have been proven to be false." The truth, as she brilliantly explains, is that resistance to tyranny is a natural right (the natural right to protect one's sovereign rights) and Nullification is the rightful tool of resistance. Just as resistance is a natural right, nullification is the natural remedy.

    Publius is a scholar and is brilliant. Mark Levin is a scholar and is brilliant, as well. The most brilliant men of all are Thomas Jefferson and James Madison, and if you have any doubt of that, then you are all hypocrites for living under the very free society they secured for you. The difference between scholars like Publius and Mr. Levin is which view point they choose to endorse, given their extensive knowledge and understanding. Publius is a scholar of history and of original intent. She understands that the Constitution is not a stand-alone document but is grounded in the principles outlined in the Declaration of Independence and in the doctrine of Social Compact. She is an attorney. Mark Levin is also an attorney and understands history. Unfortunately, he has chosen to ignore some of the background that rounds out the understanding of our founding documents. As we are all aware, there are those who support Mark Levin and those who support those who endorse Nullification. I am troubled that someone as brilliant as Mark Levin can so cavalierly disregard Nullification and resort to the unsophisticated approach of calling those not in his camp a bunch of kooks. This truly troubles me because I believe scholars should be above that and try to promote their points of view through robust discussion and debate. That's how our Founding Fathers did it. And that was the climate at the Philadelphia Convention which produced the final design of our federal government. The one area that debate and discussion could not produce the just result was with respect to slavery. Georgia and South Carolina simply refused to go along if the concession wasn't made. Personally, I don't think one remedy is exclusive over the other; I think the sound approach is finding a way to REPEAL any amendment that increases the power of the federal government and destroys its original design (such as the Sixteenth, Seventeenth, and parts of the Fourteenth amendments) while using NULLIFICATION to frustrate the enforcement of any unconstitutional federal law, policy, or court decision. I think the sound approach is recognizing the POWER that both approaches offer in limiting the power and reach of the federal government (outside its constitutional limits) and using them BOTH for the effective transfer of power back to the People. That's what it's all about, right??

    And so, with this article, I want to ask all of you to please put the good of the country first and please find the untainted authorities to educate yourselves on Nullification. Jefferson and Madison are good starts - Read the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, as well as Madison's Virginia's Report of 1800, but most importantly, read the circumstances under which Jefferson and Madison sought to re-assert the compact/founding principles of nullification.... the government was starting to trample on our Bill of Rights!!) Nullification is a good way to hold the federal government at bay while we figure out the best ways to divest the federal government of its liberty-killing powers. There are valid criticisms of an Article V Convention, and I advance that position with the others. If Mark Levin can PROMISE ABSOLUTELY that a group of state delegates can produce amendments that are clearly limited to transparent goals and which will LIMIT the government (and not in fact enlarge its powers, as some states seem inclined to do), then perhaps we should continue our discussion and debate on the Convention. But I don't think he can do so.

    As Joe Wolveton II, JD writes: "Enforcing the Constitution and demanding that states stand up to their would-be federal overlords accomplishes the same goal as Levin's proposed con-con without putting the Constitution so close to the shredder that an Article V convention could become."

    Mark Levin may have personal popularity, powerful friends in the media, the ability to shut down much of the criticism of his book, and a powerful bully pulpit in his radio show and his guest appearances on the top news outlet, but he doesn't have the same understanding of liberty and its preservation as Thomas Jefferson, James Madison, and our other Founding Fathers had.

    Nullification must continue not only to be the remedy of choice, but of right.

    "No matter the soothing words and the slate of scholars standing with Levin," Wolverton emphasizes: "the convention they're calling for would be beyond the control of the people or their representatives and could result in the proposal by the assembled delegates of potentially fatal and irreversible alterations to our Constitution that could very well end up being ratified."

    References:

    Mark Levin, The Liberty Amendments: Restoring the American Republic, New York, N.Y.: Threshold Editions, 2013, 272 pages, hardcover.

    Arthur Goldberg (former US Supreme Court Justice), "Steer Clear of Constitutional Convention," Miami Herald, September 14, 1986. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

    Joe Wolverton II, JD, "Levin, Limbaugh, Hannity Calling for Con-Con, " The New American, August 22, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

    Larry Greenley, "Levin's Risky Proposal: A Constitutional Convention," The New American, October 27, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

    Michael Lotfi, "Nullification vs. Article V Constitutional Convention: Why Levin is Wrong," The Washington Times, December 27, 2013. http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/

    Publius Huldah, "Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!". https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/

    Publisher's note: Diane Rufino has her own blog, For Love of God and Country. Come and visit her. She'd love your company.