by Derek Sheriff, Arizona Tenth Amendment Center

Why have I decided to invite a state Senator from New Jersey to debate with New York Times best selling author, Thomas E.Woods Jr. on my blogtalkradio show?

Recently I wrote an article which defended states that want to legalize medical marijuana in defiance of unconstitutional federal drug laws. I pointed out the inconsistency of those (mostly Republicans), who denounce what has come to be called “Obamacare” on constitutional grounds, but who also defend the equally unconstitutional “War on Drugs” being carried out by our central government.

When Assemblywoman Alison Littell-McHose along with state Senator Doherty asserted that New Jersey has the authority to nullify “Obamacare” within its borders recently, state Senator Jim Whelan promptly demonstrated that neither of the two major parties has a monopoly on hypocrisy! In a recent statement, Sen. Doherty wrote, “This amendment, if ratified by the voters of this state, will nullify any law that mandates health coverage within New Jersey’s borders…”

Tom Wood's New Book! "Nullification: How to Resist Federal Tyranny in the 21st Century"

What did Sen. Whelan have to say about the use of the word “nullify”?  He said, “While we are all entitled to our own opinions, we are not entitled to our own history…”. Senator Whelan then took it upon himself to give Assemblywoman Alison Littell-McHose a lecture about how federal law always trumps state law and how nullification is a dead issue that has already been decided. Andrew Jackson was the “decider” in that conflict, just in case you were wondering. Sen. Whelan used an extremely condescending tone, I might add. You can hear it yourself at about the 3:04:50 mark here.

What we should all find more than a little ironic is the fact that Senator Whelan sponsored New Jersey senate bill-119, entitled the “New Jersey Compassionate Use Medical Marijuana Act”. This act militates against the very doctrine of federal judicial supremacy that Sen. Whelan invoked to supposedly refute Sen. Doherty and Asw. Littell-McHose!

Of course, Sen. Whelan claimed that he is perfectly consistent because the Obama administration has assured us that they won’t enforce the federal laws when it comes to medical marijuana. I guess Sen. Whelan still hasn’t heard the news: the DEA didn’t get the memo. Jeffrey Sweetin, the special agent in charge of the DEA’s Denver office, declared: “It’s still a violation of federal law. It’s not medicine. We’re still going to continue to investigate and arrest people.”

Even if Obama’s promise had not gone up in smoke, however, I fail to see how it would make Sen. Whelan’s pet medical marijuana law conform to what he is pleased to call federal law, which he claims always trumps state law. In fact, coming from a guy who said, “The state doesn’t get to pick and choose which federal laws they’ll follow.”, frankly I’m shocked! I guess he just figures that if Obama unilaterally says it’s not going to be enforced, it’s not a federal law anymore.

I’m not saying that the federal drug laws in question are legitimate, since the Constitution doesn’t grant Congress the authority to pass laws concerning  production, distribution and use of plants or other substances that takes place completely within a state’s borders. I’m just trying to decipher Sen. Whelan’s logic.

The only way I can think to explain Sen. Whelan’s seemingly contradictory positions on medical marijuana and “Obamacare”, is to assume that he is putting either his party or his preferences, or both, above principle. If he would like to come on my internet radio show as a quest and explain it himself, however, I would be grateful.  If he were to accept my invitation, it would also be helpful if he could explain how Thomas Jefferson came back from the dead and led the nullification movement in the 1830’s against John Adams. I urge you to read the statement he issued below, as well as the response that was given by NJ Republicans. Sen. Whelan wrote:

Assemblywoman Alison Littell-McHose along with Sen. Doherty are attempting to “nullify” the “Patient Protection and Affordable Care Act,” citing the actions of Virginia and Kentucky, led by Jefferson and Madison, in response to the federal Alien and Sedition Act in the 1830s.

Now, while we are all entitled to our own opinions, we are not entitled to our own history. The historical fact is that the Alien and Sedition Act was a blight on our history and on President John Adam’s otherwise stellar record of contributions to our country. In part, because of the bad law, Adams was a one term president and the Alien and Sedition Act was repealed by the Federal Congress, not nullified by individual states. You see, then as now, we have elections; that’s how we decide things.

Further, the nullification crises of the 1830s was resolved when President Andrew Jackson threatened to send troops into South Carolina. When South Carolina relented, the principle that the Federal law was supreme was even more firmly established.

Of course, the greatest crisis of whether we are a nation of the people, as our Constitution’s preamble states (“We the people”) or a collection of individual free states was the Civil War. The secessionists, state’s rights nullifiers lost. The United States of America won. We are one nation, indivisible, governed by the laws our Congress and President enact.

Here’s the Republican response:

Memo to Senator Whelan:
Earlier today nullification movement leader (at least when it comes to pot smoking) Senator James Whelan sent out an email attempting to again attack Senator Mike Doherty and Assemblywoman Alison Littell McHose by using a distorted reading of history.
In his memo, Whelan claims that Thomas Jefferson “led” the nullification movement in the 1830’s against John Adams. That would have been a neat trick. In fact, Thomas Jefferson and John Adams both died on July 4, 1826.
And once again, Senator Whelan attempts to link the nullification movement with the Confederacy. Even a casual reading of the history of the 19th century would reveal that his party, the Democrat Party, was the political face of the institution of slavery. On the other hand, the anti-slavery Republican Party was formed in response to laws like the Fugitive Slave Act of 1850 and their earnest attempt to nullify federal law that mandated that slaves who escaped to freedom be returned to their captors.
Instead of lecturing the party of Lincoln, Senator Whelan should focus on cleansing his own party’s use of slave-holding Democrat Presidents in their party fundraisers. In April, the Democrat State Committee held a Jefferson-Jackson Dinner in honor of those two slave-owning Democrat Presidents. When one considers how those men treated their captives, particularly the women they held against their will, we would hope that Senator Whelan would reconsider the use of their names in the future.
Unless he wants to nullify history as well. Seems the Democrat party in NJ isn’t good at much, but they are terrific on revisionist history.
ALSO: Assemblyman Mick Carroll of Morris County pointed out to me that Whelan also got the role of nullification in the Cival War era backwards in that rant. “It was the North, not the South, which was interested in nullification just before the war, specifically with regard to the fugitive slave law,” said Carroll.
Quite right. It was the federal government that insisted free states had to return escaped slaves to their owners. Northern states fought against this law, apparently without Whelan’s approval. If you take him at his word, the feds had every right to force slaves to return to their owners.
I’m sure he didn’t mean that. But the fact is the Civil War did not put an end to nullification, as he argues. It put an end to the federal government’s endorsement of it.

The Original Constitution

I have come to realize lately that the Republican party was, in truth, forged by many who favored nullification and states’ rights. This is not how nullification is usually characterized, however. We are often reminded by people like Sen. Whelan about the supposed failure of nullification when employed by slave states in the 1830’s, but we hear almost nothing about the success of nullification when used by northern abolitionists and Republicans in the years leading up to the War Between the States. This is something all Republicans should be aware of.

However, since Sen. Whelan is a  member of the other major party and apparently claims that the federal government  is the exclusive or final judge of the extent of the powers delegated to itself, I urge him to listen to the father of his party and respect his words. As Carl Schurz (who later became a US Senator), said in a speech he gave in 1859:

The Legislature of Kentucky, on the 10th of November, 1799, adopted resolutions equally strong, clear and unmistakable. They were written by the same hand that wrote the Declaration of Independence, and I request all those who call Thomas Jefferson the father of their party, to respect his words. In those resolutions, the Legislature of Kentucky declares: “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 parties 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.” — Thus spoke Thomas Jefferson.

I think I’ll side with Thomas Jefferson and Sen. Carl Schurz, rather than Sen. Whelan, on this one.

Let’s hope that both Sen. Whelan and Tom Woods will agree to be guests on my show for an informal debate sometime in the near future. I promise to be completely civil and to give them equal time to make their points, which is more than you can expect from most mainstream media radio programs these days!

Derek Sheriff
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