The Blueprint: James Madison’s Advice

We call the process nullification, and James Madison gave us the blueprint for stopping federal overreach before the Constitution was even ratified. Madison acknowledged anti-federalist fears that the new general government would try to exercise undelegated powers. And he assured them that the power of the states could keep the tendency in check in Federalist 46.

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Non-Compliance is its own “Penalty”

Every time a state refuses to help the federal government enforce their laws, the feds’ court gets bigger. They simply do not have the players needed to defend the whole playing field and this lack of resources becomes a penalty in itself. Ultimately, there’s no real need to slap a technical foul on a group of players that can’t stop the other team from scoring.

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Incorporation: A Fool’s Game

Meet Bob, the owner and editor of a struggling newspaper.

Circulation and interest in his publication remains pretty stable, but advertising revenue dropped precipitously over the last several months. He’s on the verge of shutting down the presses when a very wealthy businessman comes and offers to underwrite the entire venture. He woos Bob with a passionate speech about his commitment to news. He tells Bob he values hard hitting reporting and talks about “speaking truth to power.” He even expresses a willingness to take a loss for the sake of keeping journalism alive in their town.

The businessman comes to the table with just one condition: he gets to make the final decision on all content.

Understandably, Bob feels somewhat reluctant initially.

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There’s Nothing Radical about Nullification

Picture the single most barbaric, inhumane, and morally reprehensible act imaginable. It could be anything. You could choose genocide, the most depraved form of torture, or slavery, whatever really. History is replete with examples, the twentieth century in particular, but the nineteenth century had its share of them as well.

There doesn’t have to be a geographic limitation, either. But for the sake of argument, try to keep it local, as in here in the United States. Whatever you chose, On the official Maddow Blog, MSNBC’s Steve Benen believes that “[n]ullification must never be on the table” as a means to protect innocent lives and property.

Apparently he can’t think of a single reason that nullification should be used by states or local governing bodies. The logical implication is that opponents of slavery – that is advocates of freedom – in the antebellum period were wrong to have used nullification as a means to protect the lives and freedom of former slaves. No doubt, Harriet Tubman would be described by Benen as a radical, and her willful defiance of federal slave laws would be denounced, had the two been contemporaries.

Another case where nullification could arguably have been employed is in preventing or at least deterring the murderous and detestable “Trail of Tears” death march across the southern United States. Imagine if the forcible relocation of more than a hundred thousand members of various native tribes weren’t marched through Georgia, Alabama, Tennessee, or Kentucky because those states refused to participate. The lives of thousands could have been saved by such resistance. Opponents of nullification however, are self-righteously indignant at such a thought.

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