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Tilting at Windmills

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May 8, 2009
By: Hilzoy

About That Georgia Nullification Resolution ...

As Steve and others have reported, the Georgia State Senate has adopted a resolution allowing the state to nullify any federal laws it thinks are unconstitutional. Hendrik Hertzberg actually read the resolution, and wrote a post that made me want to read it as well: he described it as "a Kompletely Krazy Kocktail of militia-minded moonshine and wacko white lightning -- a resolution that not only endorses defiance of federal law but also threatens anarchy and revolution."

So I did, and as I read I had two main thoughts. First, while Hertzberg writes that the resolution is written in "a mock eighteenth-century style, ornate and pompous", I thought it was an unnervingly good imitation of eighteenth-century prose. And not just in general: in referring to the Constitution as "a compact under the style and title of a Constitution for the United States", the 'style and title' part struck me as pitch-perfect.

Second, there is something very peculiar about its content. Consider this passage:

"That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

Where, I wondered, is the Supreme Court in all this? The Supreme Court determines the constitutional limits on the exercise of federal power. It has the power to nullify federal statutes. Therefore, it obviously puts a check on the executive and legislative branches. And while one might think that it has interpreted the Constitution wrongly, it's very odd to write as though it didn't exist, and did not have the authority to keep the other branches of the federal government within constitutional limits.

It occurred to me that there was a simple explanation for all this. So I googled a distinctive phrase, and lo! it turns out that the Georgia resolution is a lightly modified version of Thomas Jefferson's Resolutions Related To The Alien And Sedition Acts. (Most of the resolution follows this version, but towards the end, it substitutes the eighth resolution, here.) It omits all references to the Alien and Sedition Acts themselves, as well as the part where Jefferson seems to say that states, rather than the federal government, have authority over "alien friends", and that the federal government has no right to imprison people who do not obey deportation orders.

UPDATE: I inadvertently cut the following: And they added this piece of lunacy:

"Any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of the United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America."

It's followed by a list of laws that would constitute a nullification of the Constitution. Read it and weep. END UPDATE

This matters for the following reason. Jefferson wrote his Resolutions in 1798. At that time, it was still an open question how the Constitution was to be enforced, and, in particular, how the federal government was to be kept within its limits. In 1803, the Supreme Court decided Marbury v. Madison, which answered that question by holding that federal courts had the power to determine whether or not federal laws were constitutional. It did so on grounds similar to those that moved Jefferson:

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable."

Jefferson and Justice Marshall were confronting a similar problem: the need to keep the federal government within constitutional limits. They proposed different solutions: in Jefferson's case, state nullification, in Marshall's, judicial review. When Jefferson wrote, his views were not "militia-minded moonshine and wacko white lightning". They were an attempt to answer a serious problem that had not yet been answered. His solution was, in my view, not the best one, but it was a serious answer to a serious question.

It matters when you write something. The Articles of Confederation were not ideal, but when they were written, they were a real solution to a real problem. Proposing them now would be idiotic. Likewise, what makes the Georgia resolution a Kompletely Krazy Kocktail is that it parrots Jefferson's words as though we had not arrived at a solution to that problem nearly two centuries ago. But we have, and acting as though that solution does not exist, or as though it does not make state nullification both superfluous and a recipe for lawlessness, is absurd.

Hilzoy 1:42 PM Permalink | Trackbacks | Comments (38)

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Comments

Cool! I'm moving to Georgia, where my family can have our own vote and decide which laws we can choose to ignore!

Posted by: DR on May 8, 2009 at 1:55 PM | PERMALINK

Not only were they on a caffine/ritalin high when they wrote this, ergo thinking it was a sane idea, but they also plagiarized most of it.

I think Bob Dylan captured the Georga Republicans perfectly:

"Idiot wind, blowing like a circle around my skull,
From the grand coulee dam to the capitol.
Idiot wind, blowing every time you move your teeth,
Youre an idiot, babe.
Its a wonder that you still know how to breathe."


Posted by: Kurt on May 8, 2009 at 2:08 PM | PERMALINK

If you're gonna plagiarize, steal from the best!

Nice work, Hilzoy, on the context and background. I can't decide if this is politics as theater (tragicomedy) or something much more substantial. I suppose it depends on what the Georgians do with it.

Posted by: Ahistoricality on May 8, 2009 at 2:14 PM | PERMALINK

If they'll say what day they want to leave the Union, I'll help them pack.

Posted by: jb on May 8, 2009 at 2:18 PM | PERMALINK

So, basically, Georgia copied New Hampshire, who copied Thomas Jefferson? Hey, if you're going to secede, at least be original about it.

Posted by: Matt on May 8, 2009 at 2:23 PM | PERMALINK

I see everyone else got there first. Why plagiarize and not re-submit it under his name?

aimai

Posted by: aimai on May 8, 2009 at 2:23 PM | PERMALINK

Secessionists reject Marbury v. Madison as illegitimate, thus for them the issues brought up by Jefferson are still an open question. Actually, they don't feel that they are; they say the federal government's powers are limited to the matters listed in Article I, Section VIII, and everything else belongs to the states. By their reading the Commerce and General Welfare clauses are also improperly interpreted today.

The Confederacy rejected the creation of a supreme court; their belief was that all judicial issues were to be dealt with at the state level.

Posted by: dr sardonicus on May 8, 2009 at 2:53 PM | PERMALINK

Really, if the Deep South [the heartland of the current GOP] wants to secede again, wouldn't that essentially be a good thing from a progressive point of view since the GOP share of the vote would shrink even further?

As Nate Silver pointed out recently, Barack Obama's landslide victory would have been even more impressive if Texans didn't vote, etc..


MARCU$

Posted by: mlindroo on May 8, 2009 at 2:54 PM | PERMALINK

If we move to Georgia can we all get together and vote to not pay taxes?

That would be tray cooool!

Posted by: pj in jesusland on May 8, 2009 at 3:05 PM | PERMALINK

What the heck, let them go. The south will soon revert to a hell-hole of right wing perdition.

Most of the educated, progressive people will soon leave the south for 'free states' and the wingnuts will migrate southward to 'New Dixie'.

The remaining union states will be far better off without the economic and political 'drag' coming from below the Mason-Dixon line.

Of course, a secure, fenced border will be needed between the new countries.

Posted by: Buford on May 8, 2009 at 3:13 PM | PERMALINK

I live with these Kompletely Krazy Kritters every day, and sometimes wonder how I survive. If they want to go it alone, I say let 'em have at it; I'll just move back to New York!!

Posted by: bigapplegeorgiapeach on May 8, 2009 at 3:15 PM | PERMALINK

Nice catch, but who is "Hendricks"?

Posted by: gordonminor on May 8, 2009 at 3:25 PM | PERMALINK

Re: Marbury v Madison, we in Alabama had a governor, Fob James, who actively campaigned against Marbury v Madison, saying almost 200 years (at the time) of Supreme Court precedence was wrong. This was all in an effort to keep Roy Moore doing his Ten Commandments schtick, but he was sincere and he had the backing of lots of people. For awhile.

Posted by: martin on May 8, 2009 at 3:28 PM | PERMALINK

What lunacy causes people to chose to debate a question that was settled within the text of the Constitution (Article VI), and then again 206 years ago (and then again, in McCulloch v Maryland in 1819, at Appomattox in 1865, in Brown in 1954, in the Civil Rights Acts in 1967 and 1968, just to name a few other times). It's to the point where these guys have as much respect from me as do tax deniers and those guys on the street wearing tin-foil hats.

Posted by: Diogenes on May 8, 2009 at 3:36 PM | PERMALINK

I didn't see "gay Supreme Court justice" on their nullifying list, so maybe they are more reasonable than we thought.

Posted by: howie on May 8, 2009 at 3:41 PM | PERMALINK

Hey, its just a matter of time before the Southern Republicans crash and burn just like the nationals did. Dear God I hope so. These are the biggest morons that ever walked on two legs.

Posted by: ComradeAnon on May 8, 2009 at 3:47 PM | PERMALINK

I think it is time for the Congress to address rebellion. But this time, no Civil War!

First, let's publish how much federal revenue is received by each state and how much federal spending is done in each state.

Second, if a state passes supremacy laws, have US law kick in to limit that state to receiving no more federal money than they sent to Washington.

Third, if a state ACTS do impede any federal law, Presidential action, or judicial finding (except to appeal that issue to the SCOTUS), withdraw 50% of the federal spending in that state until they withdraw their and apologize for acting unconstitutionally. Second offense: 75% withdrawal. Third offense: 100% withdrawal.

Spending cuts will start by withdrawing US armed miltiary (Army, Navy, Air Force) personnel and equipment, including contracts to supply or construct facilities and equipment. Also included, withdraw 100% of the national guard federal spending for that state. Units/facilities should be moved to states that fully participate in the union. Forbid the diversion of any federal money from authorized uses to non-authorized uses under the penalty provisions.

Posted by: JimPortlandOR on May 8, 2009 at 4:01 PM | PERMALINK

Well, in all fairness, Jefferson never could have anticipated we'd have a black president, in which case The South retains the right to ignore the aforementioned black president, the law, and the Constitution.

Or else every white southerner gets ten senators, right?

See, you have to understand, to these people, it's about as humiliating to have a black Democratic president as it'd be to have a black Democratic president make them fellate him. Actually, given the southern/conservative antipathy to Obama, I don't think they understand there to be a difference.

Posted by: Chris on May 8, 2009 at 4:08 PM | PERMALINK

as well as the part where Jefferson seems to say that states, rather than the federal government, have authority over "alien friends",

Here, here! Meanwhile back at the front, we just call these "alien Friends" Republicans, and be done with it.

I suppose this means reinforcements will be soon be dispatched to Ft. Sumter, and requisitions made for new bleachers around the fields of Manassas, and a Lemonade stand too.

Posted by: Mr. Stuck on May 8, 2009 at 4:09 PM | PERMALINK

I think you are looking at this the wrong way. Consider it as an opportunity for progressive states. There are many laws that have been passed by the conservative working majority in Congress specifically designed to gut legislation passed by more progressive state governments. The whiners from the South might want to re-examine just exactly what they are wishing for.

Posted by: surfk9 on May 8, 2009 at 4:14 PM | PERMALINK

VI. Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition

Well, I guess the Constitution is no more, because of those federal laws prohibiting machine guns and armor piercing bullets.

It had a good run.

Posted by: Mark S. on May 8, 2009 at 4:19 PM | PERMALINK

Fans of the Georgia resolution might enjoy the resolution that failed in the Montana House by a 50-50 vote on April 22:


http://data.opi.mt.gov/bills/2009/billpdf/HR0003.pdf

http://laws.leg.mt.gov/laws09/LAW0210W$BSIV.ActionQuery?P_BILL_NO1=3&P_BLTP_BILL_TYP_CD=HR&Z_ACTION=Find

Posted by: Ross Best on May 8, 2009 at 5:23 PM | PERMALINK

What is this fear of "involuntary servitude" they're going on about? It's okay for the State of GA to force inmates to pick up trash along the highway but gawd forbid the Feds put inmates to work picking up trash in National Parks? I know, I know, they're a-feared of some kind of mandatory national service that might force their children to do good works for poor colored peoples. But still...

Posted by: sjct on May 8, 2009 at 5:52 PM | PERMALINK

ROFLMAO!!!

I'd like to see their beloved "citizen army" try to take over Ft. Benning in Columbus GA. You know, where the U.S. Army trains it's grunts! And don't forget about the armored infantry unit and the 3rd Ranger battalion that are stationed there also.

So, I say, bring it on motherfuckers!!!

Posted by: elmo on May 8, 2009 at 6:52 PM | PERMALINK

The shame of it all is that there are so many nice, smart Georgians. Why do they elect such buffoons to their legislature? (And of course, Georgia is perhaps the most modern and cosmopolitan state in the deep South -- imagine how the wingnuts in Montgomery and Jackson will be scrambling to play catch-up now.)

Posted by: pilgrim on May 8, 2009 at 7:14 PM | PERMALINK

Bring the good old bugle, boys, we'll sing another song;
Sing it with a spirit that will start the world along,
Sing it as we used to sing it, fifty thousand strong,
While we were marching through Georgia.
[Chorus]
"Hurrah! Hurrah! We bring the jubilee!
"Hurrah! Hurrah! The Flag that makes you free!"
So we sang the chorus from Atlanta to the sea,
While we were marching through Georgia.
How the darkeys shouted when they heard the joyful sound!
How the turkeys gobbled which our commissary found!
How the sweet potatoes even started from the ground,
While we were marching through Georgia.
[Chorus]
Yes, and there were Union men who wept with joyful tears,
When they saw the honored Flag they had not seen for years;
Hardly could they be restrained from breaking forth in cheers,
While we were marching though Georgia.
[Chorus]
"Sherman's dashing Yankee boys will never reach the coast!"
So the saucy Rebels said, and 'twas a handsome boast;
Had they not forgot, alas! to reckon with the host,
While we were marching through Georgia.
[Chorus]
So we made a thoroughfare for Freedom and her train,
Sixty miles in latitude, three hundred to the main;
Treason fled before us, for resistance was in vain,
While we were marching through Georgia.
[Chorus]

Posted by: jefft452 on May 8, 2009 at 7:54 PM | PERMALINK

Please, please Lord Jeebus, let one of those coonasses stand up and try to read aloud the whole damn thing--some local mushmouth, or Joe the Plumber, or Todd Palin.
And have Louis Black watch the video, doing his "aghast at greased pig race" face.

Posted by: Steve Paradis on May 8, 2009 at 10:26 PM | PERMALINK

Damn, I'm from Georgia. Not all of us are like that bunch of fucking idiots in the state house. I've lived here all my life and I don't want to move. Maybe I can outlive them.

Posted by: don on May 8, 2009 at 11:02 PM | PERMALINK

Ah, the Georgia Legislature..
"No man or his property is safe while the Legislature is in session."
Living in GA, I have a theory about it's conservatism: In the days of racism, the votes were counted under the county unit system. A county like I live in (Fannin) with a population of a few thousands (now we're up around 20K) got one vote. A county like Fulton (where the city of Atlanta was) got perhaps 3 votes. This was a way of diminishing the impact of urban and black voters (if any). It was amplified by the Legislature cutting out more counties, so Georgia now has more counties (over 150) than any other state besides Texas. One Man One Vote swept this away, but the damage was done.
This multiplication of counties has allowed local dynasties to form and the development interests to rule as the state's economic engine for the last 4 decades. There is no strong regional planning, there are only the local governments looking for easy money. Suburban sprawl was the easy road to riches for developers, builders, and Atlanta grew beyond all reason, larger than it's water resources can handle, and larger than it's road infastructue can serve. Combine this with the way a lot of folks can stay inside a conservative media bubble, where Neil Boortz is a star and Limbaugh gospel, and you've go an extremely well funded and motiviate right wing.
It's hell being a progressive down here, but as I keep saying, I'll fight to the death to remain in the Union.

Posted by: MR Bill on May 9, 2009 at 12:08 PM | PERMALINK

For JimPortlandOre:

http://www.taxfoundation.org/taxdata/show/266.html

That's the link to the Tax Foundation's data on fed aid received vs fed taxes paid. GA, AL, MS, SC, VA, OK and most of the red states are net recipients. Note that it's the 2005 list. Didn't see a more recent one. Don't know how often they update.

They want to leave, I say "don't let the door hit you on your way out."

They want to cut taxes, I say "start with the money going to red states."

Question: in the 1850s (thereabouts) SCar tried a policy of "nullification," whereby individual states could (according to the theory) nullify any fed law that contravened that state's....sensibilities.

How is this different?

Posted by: john wycliffe on May 9, 2009 at 12:22 PM | PERMALINK

Nullification of the Constitution

If only the Founding Fathers&trade had thought to include a non-severability clause!

Posted by: Zandru on May 9, 2009 at 1:24 PM | PERMALINK

Thanks for clarifying the motivation behind the GOP's mostly successful attempt to pack the Supreme Court. I always thought that it was to nullify Roe, now I understand that the target was Marbury.

Posted by: Marc on May 10, 2009 at 8:26 AM | PERMALINK

Just want to clarify. The bill in Montana was actually rewritten and a version of it passed and is now law. Granted there is some similarity, but only a minor one. Montana's law is by no means pretending that the Supreme Court is not a fact and not constitutional. Don't be surprised, in fact, if the issue of state rights over Real ID makes it to the Supreme Court as a result of many states refusal to comply.

Linky: http://public.cq.com/docs/hs/hsnews110-000002491548.html

Posted by: Lily on May 10, 2009 at 9:28 AM | PERMALINK

Peter Onuf is the resident Thomas Jefferson expert at University of Virginia, the school that Jefferson built. Meaning that Onuf is, basically, THE go-to guy on T.J.

Onuf also happens to be one of the co-hosts of "BackStory," the new public radio show about American history. In a recent episode of the show, the "History Guys" took on Jefferson's Resolutions, and explained what, exactly, T.J. was up to.

The link is below -- have a listen to minutes 25:40-33:00 for the relevant bit. (And while you're at it, check out the interview with historian Eric Foner that follows -- it's not to be missed.)
http://www.backstoryradio.org/2009/02/laboratories-of-democracy/

(Full disclosure: I'm the producer of BackStory.)

Posted by: History Guy on May 13, 2009 at 11:21 PM | PERMALINK

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