NULLIFICATION: The Rightful Remedy Whose Time Has Finally Come | Eastern North Carolina Now

    Introduction: "Trick or Treat" (Episode 51, Season 3, BOSTON LEGAL) -

    Jerry Espenson, friend of Alan Shore and attorney at Boston Legal, is on trial for perjury.

    In Alan Shore's office, he is sitting behind his desk while Jerry is pacing the floor.

    Alan Shore: Perjury?

    Jerry Espenson: I was on a jury over the summer, a Federal capital case. In order to be on such a jury you must declare in your questionnaire that you're not again the death penalty. We found the man guilty and imposed a life sentence! Weeks later I'm doing an interview in furtherance of my new firm and somehow the issue of the death penalty comes up. I said that I've always been categorically opposed! And the prosecutor from the capital case must have read it and he had me arrested for committing perjury against the Federal Court! And now I'm about to go on trial!

    Alan Shore: Why did you lie about your views on capital punishment?

    Jerry Espenson: Because it's wrong.

    Alan Shore: Okay, it's wrong. So why lie?

    Jerry Espenson: It's not just the death penalty. It's the issue that only pro-death people should get to sit on death cases! It's stacking the deck, Alan! It's wrong! That's why I lied! To unstack a stacked deck!


    Alan Shore: And now you're being charged with perjury.

    Jerry Espenson: And the horrible prosecutor man wants me to serve three years.

    At Federal Court, all parties present. Jerry is on the stand, Alan is directing him.

    Jerry Espenson: More than half of the world's countries have outlawed capital punishment. Virtually all of the industrialized democracies have eliminated it. The five countries that execute the most people are in order: China, Iran, Saudi Arabia, the United States and Pakistan. Is that the company we want to keep?

    Alan Shore: So. To be clear. You are completely opposed to the death penalty.

    Jerry Espenson: I am.

    Alan Shore: And, yet, when you were given the juror questionnaire to fill out, you said you weren't?

    Jerry Espenson: Yes. Alan Shore: Why? Jerry?

    Jerry Espenson: Because I know how the system works. If you admit you oppose capital punishment, they keep you off the jury. Having only pro-death-penalty people on the jury is completely unfair to the defendant. Which is why I committed an act of civil disobedience. To call attention to the gross unfairness of the jury selection process!!

    At the courthouse, in a witness room, Alan and Jerry are sitting in silence.

    Alan Shore: Jerry, I know you know that perjury in Federal Court is serious. What I'm not sure you appreciate, this case you were a juror on, it was of enormous importance to the government. It was an opportunity to bring the death penalty to a State that doesn't have it. And as far as they're concerned you ruined some very big plans.

    Jerry Espenson: This sounds like a preamble to a very bad prognosis.

    Alan Shore: I've talked to Denny, Shirley, Paul Lewiston, I've had a lot of people trying to pull strings behind the scenes. This case is not going away. But I expect that... you most likely are. We have no defense, Jerry. You flat-out committed perjury.

    Jerry starts to cry. He gets emotional.

    Jerry Expenson: Can I say goodbye to my mother?

    Alan Shore: You're not going away this minute. I'll give the closing and... I guess... beg the jury to ignore the law. And... we'll see.

    At Federal Court, all parties present. Carl Newell (Assistant US Attorney) is up and giving his closing.

    Ass USA Carl Newell: If you're against the death penalty, you can call your congressman, protest in the street, start a blog, publish a book, there are countless ways to get your point across. Committing perjury isn't one of them. Obstructing justice isn't one of them. Mr Espenson lied. He defrauded the court; his actions were an insult to that court as well as everyone who believes in our system of justice. You! Are now part of that system. Do your duty. Send Mr Espenson to jail.

    Alan rises.

    Alan Shore: Let's forget all about capital punishment for a minute, and look at this another way. Say, a small town is having a community meeting to vote on whether or not to build a big incinerator. But before the selectmen let you into the meeting, they ask you how you feel about incinerators, and if you're opposed to them, you don't get to go to the meeting. Does that seem fair to any of you? Don't we want all sides represented at a community meeting? Jury selection is supposed to work the same way. All of you, in theory, should represent a cross-section of the community. Well, here we are, in Massachusetts, a state with no death penalty. One would assume, therefore, that the majority of the community is opposed to capital punishment. But anyone who holds that view cannot be a juror in a federal death penalty case. This isn't just weeding out people with idiosyncratic opinions; this is weeding out the majority. It's strategic. We all know, intuitively, if you start talking about punishment before a trial even begins, you're putting the idea of guilt in the forefront of everyone's mind. Yet, presumption of innocence is the foundation of our whole justice system. Without that, we're no better than totalitarian states who imprison and execute people on the whim of an all-powerful leader. Jerry Espenson is my friend. I care for him... dearly. And I know him to be fundamentally, a law-abiding man, who simply saw an injustice and tried to do something about it. If he's guilty of anything, it's of appealing to his sense of fairness. Now, I suppose, he's appealing to yours.

    The case at issue: The government was trying to apply procedures in a criminal trial in a way to skew the jury's decision to the decision it wanted. Jerry Espenson was prosecuted for lying about his views on the death penalty because he didn't believe the government should stack jurors to think exactly like it thinks. It was an act of civil disobedience.


    Attorney Alan Shore (James Spader) asks the jury to ignore the law because it offends fundamental notions of fairness.

    And that, in a nutshell is what Nullification is all about.

    Nullification - What is It?

    "Nullification" is the doctrine, articulated best by Thomas Jefferson and James Madison (our two greatest Founding Fathers) which essentially holds that that the federal government is a creature of the states (and NOT a party to the Constitution's social compact), and that states have the authority to judge the constitutionality of the federal government's laws, policies, and decrees. When it concludes that an act of the federal government exceeds the authority given to it by the Constitution, the act is said to be "null and void and therefore, unenforceable." The state then has the right and the duty to refuse to enforce laws which they deem unconstitutional.

    So, when you hear that a state plans to 'nullify' a particular federal law, the state, in effect, is proclaiming that the law in question is void and inoperative, or 'non-enforceable,' within the boundaries of that state; or, in other words, not a law that the state recognizes. The rationale for Nullification is that the Constitution sets precise boundaries and limitations on the ability of government to intrude in people's lives and when the government exceeds those boundaries and limitations, it would be an act of tyranny to allow such unconstitutional laws and policies (and even federal court rulings) to be enforced on a free people.

    Nullification is the doctrine that is based on the theory that the Union is the result of a voluntary compact of sovereign States and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Consequently, the federal government, a "creature" of that compact (an agent of the States), has no right to exercise powers not specifically assigned to it by the U.S. Constitution.

    Nullification is a remedy based on the Separation of Powers doctrine stated and defined in the Tenth Amendment (powers reserved to the States versus those specifically delegated to the federal government). It was articulated by our most influential Founders - Thomas Jefferson and James Madison.... Authors of our two most critical founding documents - the Declaration of Independence and the US Constitution. Nullification is the foundational principle - the legal theory - that states that a state (as a sovereign) has the right to nullify or invalidate any federal law that exceeds the scope of authority delegated by the States to the federal government and defined by the Constitution. But here's the most important part - not only does the state have the right to declare a federal law or policy or court decision to be unconstitutional; it also has a DUTY to prevent its enforcement on its people. Otherwise, it's tyranny; it's government oppression!!

    Nullification is a natural law doctrine and in our system, it is specifically based on our federal system - a dual sovereign system... The states versus the federal government. Sovereign against sovereign. (or to invoke Greek mythology - Titan against Titan). It is a doctrine that is premised - brilliantly premised - on the idea that each sovereign will jealously guard its powers and responsibilities and prevent the other from intruding on them. It's like two domineering, hot-headed Italians who are married. Neither wants to concede the other has the upper hand.

    Nullification comes from the word "nullify" (verb) or "nullity" (noun; meaning to be "null and void"). It means the act of declaring or rendering "null and void." A law made without proper authority is null and void from the very start because it lacks legal foundation. It lacks legal authority. And as such, it is to be without legal force. It is unenforceable - as a matter of law.

    Nullification has been the subject of much controversy throughout our history. Many are not comfortable talking about it and many simply don't fully understand the doctrine. This is because powerful groups have attached such negative stigma to it. This is also because to support Nullification means you must necessary take a position against the federal government. And we all know that is never popular and often comes at a cost.


    I've stood in the sidelines for years talking and writing about Nullification and I've seen its popularity grow. Years ago I gave a presentation entitled: "Nullification - A Doctrine Whose Time Has Not Yet Come." And I believed it at the time. Now I believe its time may finally be here. It will all depend on whether the States will rise to their DUTY and have the balls to re-assert the Tenth Amendment (re-assert their sovereignty) to take on the federal government and protect the people of the united States from federal tyranny, and in the long run, to push the federal government back within the bounds of the US Constitution.

    In the meantime, there are still those who strongly oppose Nullification. Most oppose it because of a lack of information or because a misunderstanding of the Constitution and founding principles.