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“Truth is sacred; and if you tell the truth too often nobody will believe it.”-Chesterton
13 November 2012
John Taylor-friend to James Madison

Nullification Based on Ratified Intent NOT Precedent

Mandeville, LA – Exclusive Audio and Transcript – The Supreme Court also says the First Amendment was incorporated for use against the states and you can’t have prayers in schools if a local school board says they’re going to do it.  Just because the SCOTUS says it doesn’t make it right.  I would say I’ll take James Madison, John Taylor of Caroline and Thomas Jefferson’s word on it before I will take Darth Vader Ginsberg, Justice Boatloads of Federal Money and John Roberts’ word on it. Check out the rest in today’s audio and transcript…

 

Begin Mike Church Show Transcript

Mike:  Dan in Florida is next.  Hello, Dan.

Caller Dan:  Hey, Mike, how are you?

Mike:  I am fantastic, sir.

Caller Dan:  I’m not angry, but my call got through anyway.  I appreciate that.

Mike:  [laughing] Good.

Caller Dan:  I wanted to talk to you about, it’s come up a few times on this show about the ballot initiatives that passed and the possible constitutional crisis between the Unaffordable Careless Act.  Haven’t nullification and interposition been challenged several times and the Supreme Court has rejected it every time, saying the states don’t have the power?

Mike:  Give me a case where the SCOTUS has actually rejected a nullification resolution.

Caller Dan:  I think the last one was in the ‘50s or something with desegregation, where states tried to nullify the desegregation of schools and the Supreme Court said the states did not have the power.

Mike:  So what?  The Supreme Court also says you have the power to kill babies.  Are they right?

Caller Dan:  No, they’re not, but I don’t know how, if it’s really a constitutional crisis —

Mike:  The Supreme Court also says the First Amendment was incorporated for use against the states and you can’t have prayers in schools if a local school board says they’re going to do it.  Just because the SCOTUS says it doesn’t make it right.  I would say I’ll take James Madison, John Taylor of Caroline and Thomas Jefferson’s word on it before I will take Darth Vader Ginsberg, Justice Boatloads of Federal Money and John Roberts’ word on it. I hear what you’re saying.

Caller Dan:  I agree.  I just wonder what the path is.

Mike:  You need more than one state to do it, and right now, by my count, you probably have at least 26 states that were party to the Affordable Care Act lawsuit that ultimately yielded the Roberts Court decision that Obamacare and the individual mandate was legal.  Twenty-six states is a majority of states.  That presents a super serious constitutional crisis should those 26 states decide to pursue an interposition or nullification and refuse to implement the exchanges and collect the mandates and the other things that the Affordable Care Act will mandate they do, which I believe is probably the most prudent course of action.

For example, what’s going to happen in Missouri?  Missouri is one of the examples that just sticks out in my mind.  72-28, people in Missouri voted for medical freedom, that their legislature will protect them from being taxed or fined because they did not purchase a medical product that the general government or any government ordered them to buy.  What is the State of Missouri to do?  Are they do declare that they’re not a sovereign entity and they don’t have any authority to protect their citizens when, by such vast majorities, they have elected to not participate in this menacing program derisively called Obamacare but officially called the Affordable Care Act?

If states, plural, decide to act as Missouri has, and maybe by action of their legislature, and many already have, then it would seem to me that the general government will be at a disadvantage.  What are they going to do?  Are they going to send troops into all those states and say: You’re going to collect the mandate and you’re going to start the exchange?  Or are they going to pull the old: we’re going to withhold your transportation funding?

To me, that might be the cue for the next aspiring and ambitious young legislator to say: Fine, we’re just going to nullify the Interstate Highway Act, too.  Don’t come in here and send any of your henchmen to micromanage our highways either.  They may say: Fine, we’re going to withhold education.  Fine, don’t send any of your henchmen in here trying to enforce your stupid school lunch policies because they’re all illegal in this state now.  It could be the beginning, should be the beginning, of a serious confrontation between the people of all that giant block of red states you see smack in the middle of the country, against their organized henchmen called the federal government on the East Coast.  To me, that’s the way to look at it.  Look at it positively and optimistically, not pessimistically as to what has happened in the past.

Caller Dan:  I hope you’re right.  This imaginary or invented thing of judicial review seems to be getting in the way.

Mike:  Let’s deal with that for a moment in a scholarly manner.  Article III of the Constitution provides that the federal judiciary — by the way, Oliver Ellsworth is the author of most of this article and most of this is his fault.  The founders tried to correct this with the Eleventh Amendment.  Apparently people don’t read the Eleventh Amendment anymore either.  The Article III powers are too broadly defined and Congress has been asleep on the job for 200-plus years to raise their hand up and pitch a fit about it, although that doesn’t mean they shouldn’t.

Let’s talk about the article of judicial review.  In the ratification debates, which is the only thing that should matter, what is ratified law, what the people believed they were ratifying at the time.  Federalist after federalist after federalist, including future Chief Justice of the Supreme Court John Marshall, in the ratification debate in Virginia, told George Mason — Mason was at the Federal Convention — told George Mason that there was no way it could ever happen that a state would ever be made to appear before a federal court for its acts.  The state courts would serve the purpose of reviewing the acts of its legislature and determine whether or not they had violated the Constitution.

Basically you can surmise that the judicial review process — which Kevin Gutzman argues in his book James Madison and the Making of America.  What they meant by judicial review, Dan, was that the Supreme Court or federal courts would review the acts of the federal legislature.  In other words, when Congress did something stupid like the Affordable Care Act, that’s where the federal courts and the Supreme Court would have jurisdiction, not over the actions of the state.  Judicial review, which was begun by Marbury v. Madison, which was explicitly a federal case, would only extend to constitutions arising under this constitution or as was defined then between states and citizens of another state, which was clarified by the Eleventh Amendment.

That’s another one of those things that’s gotten so far out of whack.  Today it’s just viewed as precedent that of course the federal judge has review over the Town of Madisonville, Louisiana’s hanging of Christmas lights and paying for them with public money.  If you follow the logic there, if we’re taking history and precedent, history says the court is wrong today.  Precedent says that it can do it because we have gotten used to it.  Does that make sense?

Caller Dan:  It does.  I appreciate it, Mike.

Mike:  That’s a review of that.  Again, don’t confuse precedent with history or with ratified intent, because they are almost always distinguishable.

End Mike Church Show Transcript

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  • Craig says:

    It is all just so out of whack from the original intent and the history involved. One must hope the States, separately but together in spirit, can and will counter this together this present and incorrect mutation of what constitutes proper judicial review.

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