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The Audience Laughs with Colbert, But the Joke Is On Them

By on February 9, 2013 in Featured, Tenther 101

colbert-nullificationDo you remember when you were in school and all of the “cool” popular kids made fun of the nerdy smart kid? Everybody pointed and laughed. Even the “non-cool” kids would pile on, in the hope that making fun of the hapless geek would elevate their own social status a notch.

Of course, today that nerdy kid runs a multimillion dollar software company, and the “cool-kid” who led the bullying lives in a single-wide and cooks meth.

A recent segment on the Colbert Report reminded me of those school days. Colbert and his sidekick, Cliff Sloan, made fun of state efforts to nullify unconstitutional acts. The crowd hemmed and hawed, and laughed hysterically as the oh-so-cool Colbert and his “legal expert” ridiculed Thomas Jefferson and James Madison, along with their silly little principles of nullification.

Of course, the snickering audience likely had no idea that they were poking fun at the “Father of the Constitution” and the author of the Declaration of Independence, harkening back to that basic truth from our high school days – the joke’s on them.

In fact, the contributions Colbert and his lying buddy bring to the political landscape sits at about the same level as our meth-cooking former high school bully.

The entire segment lacked a certain level of truthiness, starting from the very beginning. I figure Colbert probably just doesn’t know any better. As for Sloan, with his Harvard law credentials, I have to assume he either needs to demand a refund from that storied Ivy League institution, or he is just lying.

Colbert starts things off by asking Sloan about nullification. Clifford doesn’t bother to explain the roots of the principles; he just dusts them away with one stroke of his ivy covered brush.

“It’s happened and it’s always failed,” Sloan quipped.

Really, Cliff? Always?

I guess 18 states don’t really have medical marijuana programs despite a federal law claiming they cannot. Or maybe Sloan realizes that these states stand in defiance of the federal government, and he is working hard to insure these sick cancer patient criminals end up in the slammer where they belong!

Silly nullifiers.

At any rate, Colbert can’t wait to find out about the awful applications of nullification in the past, and Sloan obediently complies. At this point, I have to praise Clifford for his ability to pack so many historical falsehoods into a single sentence.

The Southern States said, ‘We don’t have to follow what the federal government – what Lincoln – is going to say in terms of abolishing slavery, and it’s null and void,’ and they took it one step further and seceded.

The audience laughs.

Here are a few fast facts for our dynamic duo and their mesmerized audience.

  • Lincoln wasn’t advocating the abolition of slavery when he was elected. He supported the Republican platform, which simply sought to stop its expansion into new territories. During the famous Lincoln-Douglas debates, he said that he had no purpose directly or indirectly to interfere with the institution of slavery in the states where it existed.
  • Nullification was never used to advance the cause of slavery. Slavery was the law of the land. There was nothing to nullify.
  • It was northern states advancing nullification to block implementation of the fugitive slave acts.
  • Southern states condemned nullification and South Carolina specifically denounced northern nullification of the fugitive slave laws in its Declaration of Causes.

Sloan also dredges up the fact that some southerners advanced nullification as a way to protect segregation. But the improper use of a tool does not negate the value of that tool. Just because a murderer uses a hammer to bludgeon his victim to death does not diminish the hammer’s utility for driving nails. As I’ve already mentioned, northern abolitionists appealed to the principles of nullification to support their position and resist the draconian Fugitive Slave Act of 1850. This act denied due process to any black person accused of escaping slavery. Northern states passed personal liberty laws in defiance of this “court-approved” federal act, and granted due process rights to black people accused of escaping slavery. These states also refused to cooperate with federal officials facilitating slave roundups.

I can only conclude that Sloan and Colbert must not support northern efforts to nullify perhaps the grossest law ever passed by a U.S. Congress. I assume that they would have ridiculed the state legislature in Michigan that granted all black people accused of escaping slavery habeas corpus rights and a jury trial. The horror! Defying the federal government like that! Those accused blacks should have been hauled off in chains on the mere word of a white man. After all, the Supreme Court said it was legit. And we all know nobody can challenge federal employees wearing black robes.

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Funny, huh?

Sloan supports his opposition to nullification with the typical lie about the Supremacy Clause. In his world, any old act Congress passes stands as the supreme law of the land. Like so many so-called experts, he ignores the most important words in the clause.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land. Only laws made in pursuance of the Constitution – that is, in keeping with the powers enumerated to the federal government – stand as legitimate laws. All other acts are usurpation, and by definition null, void and of no force.

When Colbert and Sloan discuss the Supreme Court, the comedian swerves into a real funny and doesn’t even realize it. He points out that the Supreme Court gets to make the final decision on the extent of federal power because the Supreme Court says so. I think at some level, Colbert recognizes the lunacy of that position. And the audience snickers nervously like they see the humor in it too, but know they can’t laugh because it wouldn’t fit into the context of  the big joke. But if Sloan sees the ridiculous nature of his assertion, he doesn’t show it. He plunges ahead pretending a system with one party making all of the decisions makes perfect sense. I guess he would be fine with my mother standing as the final authority in a dispute between us.

Jefferson’s position makes a lot more sense.

The government created by this compact (the Constitution) 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 (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

But of course, that’s not funny. Most people would rather just laugh with the cool kids.

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11 comments
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DavidBrown1
DavidBrown1

"nullification has always failed" .... seems like a throw-away statement however, it is pretty much on point. The comparison with states pot laws ... well, I can only say that that debate has yet to start and for the time being, it does fly in the face of Mr. Sloan. My guess is that the federal government is waiting and seeing.

 

Finally ... Colbert is playing ... This is not a news show ... This is satire ... Switch to decaf.

Mike Maharrey
Mike Maharrey moderator

 @DavidBrown1 Nullification of the Fugitive Slave Act by northern states failed so miserably that South Carolina listed it as its first complaint in its Declaration of Causes for secession.

JohnnyLaw1
JohnnyLaw1 like.author.displayName 1 Like

I think the scariest part of this is that the Colbert Report is a comedy/satire. It is not reality, it is not news. It is not to be taken seriously. Yet, people turn to this type of show to get info and facts. And seriously believe that what they heard was truth.

dweyrich
dweyrich like.author.displayName 1 Like

Determining whether a federal law is supreme simply requires that it be found as an enumerated power within the Constitution. The purpose of the Constitution was to act as a set of by-laws to limit the power of the corporation known as the 'United States of America' (see Preamble as opposed to the "united States") created by the several States to handle those tasks that extend beyond what the individual states felt was worthy of their time to address in confederation. Sadly, most folks forget that there is also a Preamble to the Bill of Rights (strict limits of power against the individual). The current Progressive movement seeks to destroy Federalism and the rights of the sovereigns... the individual.

Ripcity
Ripcity

This view of the Constitution has been rejected by the federal courts, which consistently have held that under the Constitution, the states do not have the power to nullify federal laws. The courts have rejected the compact theory, finding that the Constitution was not a contract among the states. Rather, the Constitution was established directly by the people, as stated in the preamble: "We the people of the United States. . . ."Under the Supremacy Clause of Article VI, the Constitution and federal laws adopted in pursuance thereof are the "supreme law of the land . . . any thing in the constitution or laws of any state to the contrary notwithstanding." Federal laws therefore cannot be negated by the states. Rather, federal laws are valid and are supreme, so long as those laws were adopted in pursuance of—that is, consistent with—the Constitution. Determining whether a federal law is consistent with the Constitution requires interpretation of the law, which is inherently a judicial function. The federal judicial power granted by Article III of the Constitution gives the federal courts authority over all cases "arising under this Constitution [or] the laws of the United States." The federal courts therefore have the power to determine whether federal laws are constitutional, with the Supreme Court having final authority. Thus, the federal courts have held that under the Constitution, federal law is controlling over state law, and the final power to declare federal laws unconstitutional has been delegated to the federal courts. The states therefore do not have the power to nullify federal law.

KansasBright
KansasBright

@Ripcity

The federal courts were not given the power to "interpret" the US Constitution, that is a power they usurped for themselves. They were given the power to make sure that EVERY law, bill, amendment, etc was made in "pursuance thereof" the US Constitution.  Go read the US Constitution for yourself. It is no more valid then Obama giving himself murder in the first degree (assassination) powers. He usurped powers that is NOT legal in the USA. Never has been, never will be. Not even now  - it is JUST murder, and all those who are involved, and who did not work to have this stopped and them arrested are accomplices to Murder 1 under our laws.

 

Make sure you read the part that says, "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..." Notice who adopted the US Constitution.

 

Preamble to the Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

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.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 

In the New York Ratifying Convention, Melancton Smith stated: “The state constitutions should be the guardians of our domestic rights and interests, and should be both the support and the check of the federal government.”

 

Gilbert Livingston would add: “[I] conceive the state governments are necessary as the barrier between the people’s liberties and any invasion which may be attempted on them by the general government.”

 

In Federalist Essay 26 Alexander Hamilton stated: “[T]he State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government…will be ready enough, if anything improper appears, to sound the alarm to the people, and not only be the voice, but if necessary, the arm of their discontent.”

 

In Federalist 45, the powers assigned to the individual states were summarized by James Madison: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

 

As sovereign entities with their own executive, legislative, and judicial branches of government; states are free to govern without federal influence within the confines of their own state constitutions. In addition to the domestic powers outlined by Madison, states assumed the responsibility to actively limit central government’s natural desire to grow beyond the enumerated powers of the Constitution.

 

In Federalist 28, Alexander Hamilton spoke of the state’s duty to provide a check on the power of a growing central government: “…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

 

If the State legislatures were to be the “arm” of the people from federal encroachments, then it follows that the States must have the independent power or authority to perform that function and it would appear to me that no precise description of the method is required.

 

Jefferson and Madison, drafted resolutions outlining the proper course states should take when the central government assumes powers outside the powers specifically granted by the Constitution.

Jefferson wrote: “Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] 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; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.”

Mike Maharrey
Mike Maharrey moderator like.author.displayName like.author.displayName 2 Like

 @Ripcity Interesting - because those ratifying the Constitution seemed to think they were doing so on behalf of the people of a sovereign state - and that those sovereign states were not giving up any sovereignty other than the specifically delegated powers enumerated in the Constitution. In fact, those "selling" the Constitution told them that was the case."Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."  Madison, Federalist 39So the fact that the Supreme Court - part of the federal government the people of those sovereign states created -  came along down the road and "rejected" what was clearly the case at ratification and declared itself the judge of its own power doesn't seem like a very convincing argument.In order for your view of the Republic to carry any weight, it is incumbent upon you to show proof from the ratifying period that they were ratifying as "one American people." You also need to unravel Jefferson's basic argument."The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, 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."

onetenther
onetenther like.author.displayName 1 Like

 @Ripcity "The federal judicial power granted by Article III of the Constitution gives the federal courts authority over all cases "arising under this Constitution [or] the laws of the United States."   This is wrong because the constitution gives judicial power over the constitution and a few other cases which expands its power to that area.  It does not exlcude states from declaring the law unconstitutional in itself.  There is no section of the constitution that denies a state can do that if it chose to. 

 

"the Constitution was established directly by the people, as stated in the preamble: "We the people of the United States. . . ."  This is technichally true that the constitution and federal laws govern the people of the United States but that is not saying that states have no independent authority whatsoever.  When we say that the federal government is constructed by the whole people we are saying that it has a right to govern them.  We did not say that the federal government can govern the states since, as you said, it is of the people not the states.  Also, the constitution, and every amendment was approved by the state legislatures so every power and every law it can make with those powers were ultimately allowed by the states themselves.   The states affectively allowed the federal government to govern within its own jurisdiction simply because the states collectively can reject any new authority that the federal government or the constitution seeks to impose. 

onetenther
onetenther

There are so many different ways to nullify federal laws it isn't funny.  The very first act of nullification was very successful even though it may not have been considered OK by the supreme court at the time.  The reason for this is that the federal government had no police force to enforce its own laws so it relied completely on state cooperation.  States had to enforce the sedition acts simply because they were the only ones who had a law enforcement body but when some states refused to enforce it there was simply no way that law could be enforced within that state.  It would be interesting to see arrest records at the time to see if anyone was arrested for violation of the sedition act and I bet not one single person was arrested after the nullification acts were passed. 

 

Now the federal government has arrest powers in different bodies such as ATF, FBI, DEA, etc, etc, and etc which makes nullification more difficult because the federal government doesn't have to rely on state cooperation but that doesn't mean that nullification still can't function if a state is creative enough.  Consider non-compliance which is states not rendering any aid or its own resources to the assistance of enforcing what it deems unconstitutional laws.  This doesn't stop those agents from making arrest but it definately makes their job much harder.  So hard that they may not even attempt to enforce it themselves. 

 

Another way to nullify is for states to stop accepting money from the federal government!  The department of education is simply a government contractor between itself and state schools.  It gives them 'free' money as long as they agree to certain rules which violates a state's own authority to decide the rules on what is taught in its schools.  They freely accept the money but they also freely do what the federal government tells them to do.  The best way to nullify the department of education is to simply not accept the money anymore and its authority is terminated within that state.   I would say that this would for all other similar schemes within the federal government.

 

These are ones that have been openly discussed but what about making compliance with a federal law that the state has nullified a state crime in itself.  An employer who forces their employees to participate in obamacare can be punished by state law.  A cigarrette company that puts those pesky labels on the back of their cartons can also be punished by state law.  The result is that people within that state will comply with state law and if that law itself is deemed constitutional by the federal courts the same federal courts will have no choice but to recognize state nullification since they are upholding a state law that basically tells its residents that complying with this federal law is a state crime.

 

What about taxation?  There are no limits placed on taxation for states so why can't states erect a special federal enforcement tax.  They can say that when the federal government comes in and enforces a federal law that it consumes state resources such as public roads, electricity, utilities, and so forth.  All of which puts wear and tear so why shouldn't federal employees be taxed when they enter the state to do their job?  Why not use the income tax and say any federal employee who entered the state has to pay a 100% income tax for the year.  I wonder what federal employee would work really hard to enforce federal law.

 

My point is is that their are about a million different ways a state can interfere with federal officials that do not involve direct confrontation which I think is the worst stratagy of all.  This is where we need pour mental energy into--strategy!  Think and think hard....

cptbanjo
cptbanjo

 @onetenther

 "What about taxation?  There are no limits placed on taxation for states so why can't states erect a special federal enforcement tax.  They can say that when the federal government comes in and enforces a federal law that it consumes state resources such as public roads, electricity, utilities, and so forth.  All of which puts wear and tear so why shouldn't federal employees be taxed when they enter the state to do their job?  Why not use the income tax and say any federal employee who entered the state has to pay a 100% income tax for the year."

 

Such a tax would be unconstitutional per the 1819 Supreme Court case of McCulloch v. Maryland.

onetenther
onetenther

One day we are going to see that people who don't support any kind of federalism are really authoritarians who are not content with letting entire segments of the population be free of their central control.