Alabama can pass whatever it wants. Rep. Sali once proposed a bill in Congress that would change the Law of Gravitation. This has about as much of a chance of actually being enforced.

@Gunfighter: No, gun control laws aren't unconstitutional. The constitution provides for a process that lets you check whether they are, the process has been tried, and a result reached. They likely would have been found unconstitutional a number of decades ago, there may again be a time at which they'd be found unconstitutional, but now is not such a time. If an overwhelming number of people don't like that answer sufficiently strongly, an amendment would change that very quickly. If a smaller majority don't like that answer sufficiently strongly, the composition of the Supreme Court will change over time and you'll get a different answer. Currently, neither is the case.

And, giving a symbolic middle finger to a body that adds a net of $24 billion/year ($48B/year total) to your state's coffers when state taxes only total $9 billion/year may give you pleasure, but probably is unwise.

I won't deny that the Alabama legislature is stupid (though as a resident there are better options that this as evidence).

But I will deny that Alabama is uniquely stupid, or populated by uniquely stupid voters. I read today that New York's semi-fascist mayor, Michael Bloomberg, is defending the patently racist stop and frisk program with accusations of racism on the part of critics (like all those black people who are suing about it) and the most loathsome sort of fear mongering. http://www.nytimes.com/2013/05/01/nyregion/bloomberg-says-critics-of-police-would-make-new-yorkers-less-safe.html?_r=1&

I rather have Alabama's symbolism than what New York City is getting.

Actually semck what I said is not false. Madison definitely believed that such redress against federal acts must come in the for of joint action while Jefferson's more radical document also suggested joint action as the remedy. Madison was an opponentbof nullification as practiced by South Carolina he wrote

Document 43

"James Madison, Notes on Nullification 1835--36

Writings 9:606--7
A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a Govt. in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative umpire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people. It was this view of it which dictated the clause declaring that the Constitution & laws of the U. S. should be the supreme law of the Land, anything in the constn or laws of any of the States to the contrary notwithstanding."

Tolstoy, that marijuana case you are thinking of, I believe it's Gonzales v. Raich (one of, in my humble opinion, the worst SCOTUS decisions of the new millennium).

And I just saw resistance to the fugitive slave law was cited as a historical example? Can someone please explain to me how resistance to the law was viewed constitutionally?

I should add I really want to know

"Can someone please explain to me how resistance to the law was viewed constitutionally?"

There wasn't a lot of moral outrage on the part of government officials directed against northern sheriffs who refused to arrest escaped slaves, so the federal government never really did anything about it. The issue was never really addressed by the federal legal system, which was one of the grievances cited by southern slave 'owners' (see the other thread).

@ C Steinhardt

"If an overwhelming number of people don't like that answer sufficiently strongly, an amendment would change that very quickly. If a smaller majority don't like that answer sufficiently strongly, the composition of the Supreme Court will change over time and you'll get a different answer."

So, it's okay to legislate away the rights of the minority as long as there isn't enough support for an amendment to ban the practice?

The Supreme Court should be immune/insulated from public opinion. Supreme Court decisions are nearly impossible to overturn in practice. But as Tolstoy pointed out, these days it's a disreputable group of career government attorneys i.e. the scum of the Earth. The SC justices should be venerable, steadfast, principled, committed guardians of the Constitution, not an abused vehicle of public opinion.

@gunfighter: "So, it's okay to legislate away the rights of the minority as long as there isn't enough support for an amendment to ban the practice?"

As you well know, that's a false syllogism, but I'll answer anyway. In many cases, yes.

We had a lengthy series of debates as a country and came up determined that there were essentially two categories of rights:

- Rights that were so essential that it was necessary to write their protection into the Constitution.

- Alienable rights at the discretion of the government, and, depending upon the right, either a majority or a supermajority.

Other countries have drawn the distinction in different places. South American constitutions often have many more provisions written in. We deliberately chose to consider fewer rights inalienable and to allow more room for legislative response to public opinion and for interpretation by our judiciary.

If you feel that a right currently not enumerated and potentially under threat from public opinion is inalienable, the proper response is an amendment.

Meh.

The Constitution is whatever 5 people on the Supreme Court say it is at any particular time. All the fancy theories and scholarly interpretations mean nothing if they can't get the votes.

@ C Steinhardt

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

A right doesn't have to be enumerated to be protected, but in the case of the Second Amendment, it is not only enumerated but also incorporated to the states by previous SC decisions.

"We had a lengthy series of debates as a country and came up determined that there were essentially two categories of rights:

- Rights that were so essential that it was necessary to write their protection into the Constitution."

Like the Second Amendment, which the SC has ruled to be a protection of the individual's right to bear arms. Furthermore, this protection was extended to the state and local level.

@Tolstoy- you asked earlier if liberals think that those who resisted the fugitive slave law's should have been arrested, etc... I am not necessarily a liberal or conservative, but I do tend to lean more towards the Liberal standpoint on most issues, So I feel I can answer this. Yes, They should have been thrown in prison. As terrible as Slavery was, as horrible as the thought of being forced to help return runaways to slavery may have been, It was a law, and anyone caught in defiance of that law could have, and should have, been punished in some way.

Even know he claims to have left this thread, I will address the next point to him...
@Texas- I am a Texan. I do not live there anymore, but I am from there... Frankly speaking, you sound like the stereotypical redneck hick that gives Texas a bad name. That is all I have to say to you.

HumanWave,

Indeed, Madison's views evolved throughout his life. Your reference was to the 1898 resolutions. They were quite clear.

I know this is a little bit past the conversation but this irked me so I felt I must address it.
@Texas- First off if the south did "rise again" it would be slaughtered, badly. Although I personally think this country would be better for it if we did let them go.
Secondly for someone who is claiming to be about to pursue a career in the military you certainly have a lot of treasonous ideas.

"First off if the south did "rise again" it would be slaughtered, badly."

That's not a given. What if part of the military defects?

Going back to semck a point, yes they were clear, clear supporting what I said

Are we really going to actually consider what that 7th grader said?

*seventh grader being texas

lol, still flogging this horse?

I quoted them above. I think readers can judge for themselves that they were clear in exactly the say I suggested.

You quoted the Kentucky resolution so I am trying to figure out what that has to do with Madison, but nonetheless even though it is more radical even the Kentucky res doesn't call on nullification by an individual state

The Kentucky resolution is just clearer. Let's look at just the Virginia resolution, shall we? Remember your claim is that the Virginia resolution is NOT evidence for the idea that a single state can nullify a Federal law. Let's see what the Virginia resolution says, in relevant part:


"[T]he General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people."

We see two things here:

i) It absolutely does appeal to other states, that's true;
ii) but it appeals to them to declare the law unconstitutional AS VIRGINIA HAS ALREADY DONE UNILATERALLY.

So we see that your initial claim that this is not historical evidence for the idea that a single state can nullify a federal act *plainly* contravenes the text of the Virginia resolution, which is the less clear of the two on this point. The Kentucky resolution is even more explicit. (Because while the Virginia resolution does explicitly declare a federal act unconstitutional, the Kentucky resolution actually says in general that there is a right on the part of a single state to nullify.

Although the VA resolution does contain this pretty strong language, too:

"[A]nd that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

This part is just ambiguous as to whether it refers to "the states" severally or individually. In the context of the rest of the document, the interpretation that makes the most sense is that each state, and so in particular all states, are bound to do it; so Virginia is doing it, and entreats the other states to join her.

You're absolutely right that Madison later contradicted this position. Madison is a person who demonstrated inconsistency on quite a few things over his lifetime.

I should say nullification as it is discussed here, the states authority to reject federal laws

Again, from the Kentucky resolution:

"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."

Whether by Madison or not, this even more plainly contradicts your earlier assertion that there is no historical precedent in the K&R resolutions for a single state nullifying a law in the fully modern sense. This could not be any clearer. Please just admit you were wrong.

(One counterpoint would be that neither resolution does, in the particular case at hand, unambiguously say that the state -- Kentucky or Virginia -- will not enforce the instant federal law, by itself, *in this case.*)

Well, actually, the KR does declare it void, and of no force. So never mind. The above point applies only to the VR.

@gunfighter06 -
"That's not a given. What if part of the military defects?"
I assume some of the military would, however most of the strategic bases are located elsewhere, and in this day and age (unlike during the civil war) you need more then just soldiers to fight a war.
Secondly the south's economy and agriculture is not diverse enough to stand on it's on. It is too integrated into the rest of the country. Nor is there sufficient natural resources to support the requirements of a modern war.
Finally, I'm pretty sure as soon the leaders of the new Confederacy announce their intentions they would be taken out by drone strikes before they could whistle dixie.
Personally I think if the south wanted to secede again we should let them. It would solve the budget deficit problem and all and all make this country a better place.

^hahah yes, the "confederate states" would resemble a third world country within a generation

I think sooner then that, all it would take would be a bad hurricane season.

"Secondly the south's economy and agriculture is not diverse enough to stand on it's on. It is too integrated into the rest of the country. Nor is there sufficient natural resources to support the requirements of a modern war."

Huh? The rest of the country would go into caffeine/HFCS withdrawal and have to fold as soon as the flow of Coca Cola is stopped. That aside, industry has been fleeing to the southern states en masse thanks to their right-to-work laws for decades now. And as for agriculture, unlike the northern states, you can grow all year in the south - starvation would be the last of their worries. And I'd like to see how long the Federal armies could keep on fighting without the steady supply of Texas crude. Texas, of course, is also surpassing California as a center of technological innovation. Third world country? I think not.