Arizona Hates The Constitution, Loves Nullification

Arizona looks to be the latest state to try to revive the discredited doctrine of nullification.

The State of Arizona appears to be the latest state to try to revive the discredited, foolish doctrine of nullification:

Members of the state Legislature, including Arizona’s de facto governor, Senate President Russell Pearce, have introduced a bill that essentially would have Arizona secede from the union without having to do so officially.

Really.

It’s called SB1433, It creates a 12-member committee within the legislature that could “vote by simple majority to nullify in its entirety a specific federal law or regulation that is outside the scope of the powers delegated by the people to the federal government…”

Committee members themselves would decide this, then pass along their recommendation to the full Legislature. If, in turn, a majority of state lawmakers go along with the committee then, according to the bill, “this state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order.”

The nullification committee also would be permitted to review all existing federal laws to see if our legislative geniuses want to toss them out as well.

You can read the bill here, and it’s “Legislative Intent” section is about what you’d expect:

5.  At the time the United States Constitution was ratified on June 21, 1788, the sole and sovereign power to regulate the state business and affairs rested in the state legislature and has always been a compelling state concern and central to state sovereignty.  Accordingly, the public meaning and understanding of Article I, section 8, the “establishment clause” of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Further, the power to regulate commerce among the several states as delegated to the Congress in Article I, section 8, clause 3, United States Constitution, as understood at the time of the founding, was meant to empower Congress to regulate the buying and selling of products made by others, and sometimes land, associated finance and financial instruments and navigation and other carriage across state jurisdictional lines.  This power to regulate commerce does not include agriculture, manufacturing, mining, major crimes or land use, and does not include activities that merely substantially affect commerce.

6.  At the time the United States Constitution was ratified on June 21, 1788, the commerce clause was not meant or understood to authorize Congress or the federal judiciary to regulate the state courts in the matter of state substantive law or state judicial procedure.  This meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to the validity of religious sectarian or foreign law as being controlling or influential precedent, has never been modified by any duly ratified amendment to the United States Constitution.  Accordingly, the public meaning and understanding of Article I, section 8 and the Tenth Amendment of the United States Constitution is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in 1912.  Additionally, Article I, section 8, clause 18 of the United States Constitution, the “necessary and proper clause,” is not a blank check that empowers the federal government to do anything it deems necessary or proper.  It is instead a limitation of power under the common law doctrine of principals and incidents that allows the Congress to exercise incidental powers.  There are two main conditions required for something to be incidental, and therefore, “necessary and proper”, the law or power exercised must be directly applicable to the main, enumerated power and it must be “lesser” than the main power.

7.  At the time the United States Constitution was ratified on June 21, 1788, Article I, section 8, clause 1 of the United States Constitution, the “general welfare clause,” did not empower the federal government with the ability to do anything it deems good.  It is instead a general introduction explaining the exercise of the enumerated powers of Congress that are prescribed in Article I, section 8 of the Constitution of the United States. When James Madison was asked if this clause was a grant of power, he replied, “If not only the means but the objects are unlimited, the parchment (the Constitution) should be thrown into the fire at once.”  Thus, this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States.  The Commerce Clause was not meant or understood to authorize Congress or the federal judiciary to establish religious sectarian or foreign statute or case law as controlling or influential precedent.  This meaning and understanding of Article I, section 8, the establishment clause of the First Amendment and the Tenth Amendment of the United States Constitution, as they pertain to controlling or influential legal authority, has never been modified by any duly ratified amendment to the United States constitution.  Accordingly, the public meaning and understanding of Article I, section 8, the Establishment Clause of the First Amendment and the Tenth Amendment of the United States Constitution, is a matter of compact between this state and the United States as of the time Arizona was admitted to statehood in  1912.

8.  Accordingly, we affirm that neither the “Commerce Clause,” the “general welfare clause” or the “necessary and proper clause” of the United States Constitution have ever been expanded, modified or amended and therefore, this state specifically rejects and denies any expanded authority that the federal government may attempt to enforce.

9.  The Congress and the federal government are denied the power to establish laws within this state that are repugnant and obtrusive to state law and to the people in this state.  They are restrained and confined in authority by the eighteen items as prescribed in Article I, section 8 of the United States Constitution.

10.  Congress and the federal government are denied the power to bind the states under foreign statute or case law other than those provisions duly ratified by the Congress as a treaty, so long as the treaty does not violate this state or the United States Constitution.

11.  Further, no authority has ever been given to the legislative branch, the executive branch or the judicial branch of the federal government to preempt state legislation.

12.  This act serves as a notice and demand to the Congress and the federal government to cease and desist all activities outside the scope of their constitutionally designated powers.

To the extent that this act is merely an effort by the State of Arizona to express its displeasure with Congressional overreach under Article I, Section 8 of the Constitution, it isn’t necesarilly objectionable, and its not much different from the Virginia and Kentucky Resolutions penned by Thomas Jefferson and James Madison in response to The Alien and Sedition Acts in 1798. Where the effort falls apart, though, is that the authors of the Act clearly don’t just view this is a “petition” to Congress, but as an argument that the states have some kind of legal authority to nullify Federal Law.

This is an argument that James Madison explicitly rejected at the time he was helping draft the Resolutions:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Madison clearly saw the Resolutions as a petition to Congress, not a legal act. The doctrine of nullification, though, still came into existence thanks largely to the arguments of slaveholders who believed it was a viable route to challenge Federal authority, and it eventually led them to secession and a disastrous Civil War. One would have thought that the doctrine would have died among the bloody fields of Gettysburg and Antietam, but it came back during the Civil Rights Era when Southern states tried to use it to resist the Supreme Court’s decision in Brown v. Board of Education. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

Arizona is going down a road that has been thoroughly discredited by history, and was even rejected by the man who is known as “The Father of the Constitution.” Why they hate the Constitution so much baffles me.

FILED UNDER: Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Alex Knapp says:

    The “history” outlined by the legislation is ludicrous. Arizona was never a sovereign state. It was a part of Mexico annexed by the United States, became a U.S. governed territory, and then was accepted for statehood. The only states that can make a claim to sovereignty prior to statehood are the 13 original colonies, Hawaii, and Texas.




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  2. The other part of the argument where this falls apart is the simple fact that the Constitution was not ratified “by the states,” it was ratified by conventions separate from the legislatures of the 13 states. Legally, there’s a difference I think — and it’s the reason that the Preamble starts “We The People” and not “We the States”




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  3. Chad S says:

    Any state that wants to nullify a federal law that they disagree with should be forced to give back every dime of federal financial support that they get also.




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  4. Jack Jones says:

    Just another way to try and use the Constitution for their benefit. I agree with Chad also. I really dont think they have the economy to push many people around.




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  5. Steven Plunk says:

    Jack, Everyone tries to use the Constitution to their benefit.

    Chad, If they give back the federal money do they also get to stop paying federal income taxes and do federal lands become state lands?

    States across the country are doing for the simple reason of Obamacare overreach. Each side is pushing to establish where the line is to be drawn regarding power. I doubt any of this would be going on if that abomination of a health care reform bill hadn’t been passed in an unusual manner with barely enough votes. Some time to read the thing and debate it would have been nice as well.

    Arizona doesn’t hate the Constitution but they, like many other states, are showing great disdain for Washington and it’s arrogance.




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  6. sam says:

    “States across the country are doing for the simple reason of Obamacare overreach.”

    Bullshit. The states doing this are dominated by Tea Party infected Republicans, folks who have zero knowledge of US history and hate Obama. Arizona also has a “birther” bill:

    Here’s one clause from Arizona’s bill:

    A sworn statement attesting that the candidate has not held dual or multiple citizenship and that the candidate’s allegiance is solely to the United States of America.

    And from Nebraska’s:

    Each person who wishes to have his or her name placed on the general election ballot as a candidate for President or Vice President of the United States shall first meet the eligibility requirements of Article II, section 1, of the Constitution of the United States. Such person shall submit an affidavit to the Secretary of State along with supporting documentation as specified in subsections (5) and (6) of this section by September 8 of the year in which the election is scheduled. The affidavit and supporting documentation shall be a public record.

    (5) The affidavit shall be sworn or affirmed before a notary public and shall contain statements substantially as follows: I was born a citizen of the United States of America and was subject exclusively to the jurisdiction of the United States of America, owing allegiance to no other country at the time of my birth. On the day I was born, both my birth mother and birth father were citizens of the United States of America.

    Those two pieces of bogus legislation are aimed right at Obama. [H/T Dave Weigel]

    Clowns.




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  7. anjin-san says:

    > they, like many other states, are showing great disdain for Washington and it’s arrogance.

    Yea. The state where the Gov. was telling us all about headless bodies buried in the desert. Can you show us any evidence of even one of these bodies Steve?

    Ignorant peckerwoods.




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  8. Chad S says:

    Steven, if a state disagrees with federal policy: they have federal representatives to try and adjust the law. This “obama overreach” argument is frankly horseshit. Where were these people during the Bush years? What has the President signed into law that some massive federal overreach? Health care reform? You mean the law which lets each state figure out a health care plan for themselves?

    On the face of it’s a ridiculous argument.




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  9. Wayne says:

    Isn’t California doing something similar by ignoring Federal laws when it legalized marijuana and also by places that have sanctuary cities when it comes to illegals?




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  10. Wayne says:

    Re “if a state disagrees with federal policy: they have federal representatives to try and adjust the law”

    So if a majority of states and their representatives impose 100% on the rest of the state, it would be fair and there would be no cause for outrage and\or fight back from the minority states?




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  11. sam says:

    Actually, sixteen states have legalized medical marijuana: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington; Maryland allows for reduced penalties if cannabis use has a medical basis. California, Colorado, New Mexico, Maine, Rhode Island, Montana, and Michigan are currently the only states to utilize dispensaries to sell medical cannabis. California’s medical marijuana industry took in about $2 billion a year and generated $100 million in state sales taxes during 2008[165] with an estimated 2,100 dispensaries, co-operatives, wellness clinics and taxi delivery services in the sector colloquially known as “cannabusiness”. [Source]

    The feds seem to be pursuing a policy of neglect as far as enforcing the federal antidrug laws in the case of medical marijuana.

    California’s recreational marijuana legalization initiative (Proposition 19 ) was defeated in the last election.

    Finally, there is a difference between these medical marijuana laws and the sanctuary cities and a state officially asserting its “right” to nullify any piece of federal legislation.




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  12. sam says:

    “So if a majority of states and their representatives impose 100% on the rest of the state, it would be fair and there would be no cause for outrage and\or fight back from the minority states?”

    Who said that about the no cause for outrage and/or fight back? The outrage is fine. How the fight back is conducted is the issue.

    I don’t think you guys are going to happy until we get back to the Articles of Confederation.




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  13. DavidL says:

    I don’t buy the conceot of nullification. Then neither to I buy the notion that the Supreme Court can decare itself the sole arbiter of the Constitution and somehow that is supposed to be both constitutional and indisputable..

    Note the Peamble to the Constitution reads: “We the People” and not “We the Supreme Court.” The People deserve better than a Supreme Court that simply invents constitutional doctrine out of whole cloth and then is shocked when not take seriously




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  14. sam says:

    “Then neither to I buy the notion that the Supreme Court can decare itself the sole arbiter of the Constitution and somehow that is supposed to be both constitutional and indisputable..”

    Give us a break. The Supreme Court has never declared itself the “sole” arbiter of the Constitution, only, in the end, the final arbiter. Every time Congress passes a law it is doing so under its interpretation of the Constitution. Sometimes this interpretation is challenged in the courts, as the health care bill is now being challenged.

    Really, do you know anything at all about the history of this country?




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  15. tom p says:

    “Arizona doesn’t hate the Constitution but they, like many other states, are showing great disdain for Washington and it’s arrogance.”

    Yah… just like in Alabama (or Arkansas) after Brown v. Board of Education….

    Steve P: Do you really want to align yourself with the likes of George Wallace?




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  16. wr says:

    Plunk sez: ” I doubt any of this would be going on if that abomination of a health care reform bill hadn’t been passed in an unusual manner with barely enough votes.”

    Barely enough votes? What the hell does that mean? It passed with a majority in the House, which is all any bill needs. And it passed with a supermajority of 60 in the Senate, an absurd, anti-democratic requirement imposed by the Republicans. But that’s still not enough for Plunk. Apparently, unless President Brownback signs a bill, it’s illegitmate.

    Why don’t you just admit you don’t believe and Democrat has a right to govern this country, no matter what the majority votes for? It would be a lot more honest, and you’d look a lot less ludicrous.




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  17. Wayne says:

    Marijuana wither it is so call “Medical” or not is against federal law. Sanctuary cities are counter to federal laws. In each case the states are stating they have a right to ignore and disregarding federal laws. Arizonians are just saying that what is good for the goose is good for the gander.

    Sam
    The point is just because there is representation of the parties does not guarantee the involve parties are treated fairly and justly.

    As for fight back statement, please understand that there is a point when you treat people unfairly and unjustly that they will react violently. It is not meant as a threat but a caution. It is best to avoid mistreating others even if they are in the minority. The “let them eat cake” attitude is not wise. However I suspect many, like yourself, will not heed the advice which will lead us where no one wants to go.




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  18. wr says:

    The comments here got off to a really bad start. Alex Knapp claims that “Arizona was never a sovereign state.” Really? Arizona not only WAS a sovereign state but still IS. The Supreme Court doctrine of the equality of the states or the equal footing doctrine — still in force today — holds that by constitutional necessity every state is admitted to the Union on an equal footing with the original states . . . .

    And it all ends up with tom p’s strange equation: disdain for “Washington and it’s [sic] arrogance” equals aligning oneself “with the likes of George Wallace.” I have lots of disdain and contempt for DC, but not the slightest compulsion to align myself with “the likes of George Wallace.” I wonder if tom p will be able to grasp this simple point . . . Meanwhile, I will search elsewhere for intelligent conversation.




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  19. sam says:

    @Wayne

    “Sam
    The point is just because there is representation of the parties does not guarantee the involve parties are treated fairly and justly.”

    Well, let me quote Dodd: Fair is what you take your kids to.

    “As for fight back statement, please understand that there is a point when you treat people unfairly and unjustly that they will react violently. It is not meant as a threat but a caution. It is best to avoid mistreating others even if they are in the minority. The “let them eat cake” attitude is not wise. However I suspect many, like yourself, will not heed the advice which will lead us where no one wants to go.”

    Oh for Christ’s sake, stop winding yourself up. And stop taking yourself so goddamn seriously. These are political disputes. You win some, you lose some. You’re no fvcking Minuteman.




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  20. wr says:

    I don’t know who wrote that second comment under the name “WR,” but it sure wasn’t me. If that entity really wants to go looking elsewhere for intelligent conversation, he or she might try not hijacking other people’s identities.




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  21. tom p says:

    “I have lots of disdain and contempt for DC, but not the slightest compulsion to align myself with “the likes of George Wallace.” I wonder if tom p will be able to grasp this simple point …”

    wr…. aaaahhhhh never mind. You are quite correct. I can not grasp the difference between your disdain for “the supreme law of the land” and George Wallaces disdain for the “supreme law of the land”. (art VI, cl 2)

    Perhaps you would like to educate me?




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  22. tom p says:

    wr… just went back and reread the entire thread…. my apologies.

    tom

    ps: gutless weasels….




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  23. anjin-san says:

    wr…. I have seen a number of wr comments that did not sound as if they came from you. The price of fame, I guess 🙂




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  24. anjin-san says:

    > Really, do you know anything at all about the history of this country?

    Come on Sam. Reading books is hard. Making shit up is easy. You have to keep in mind that DavidL is a bithead groupie, if you can possibly imagine that such a thing exists. Bithead is the guy who has argued that North Vietnam was teetering on the brink of defeat in 1975 and that the US Armed Forces are not part of the federal government. Anyway, its a little like having the village idiot as your mentor. Or Kenny Bania.




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  25. c.red says:

    Well, since Article 2, Section 3 of the Arizona Constition acknowledges the US Constitution as the supreme law of the land AND the Supreme Court, via the powers granted by said Constitution, has stated that Federal Laws are binding on individual States, I think we can safely say this won’t even get by the State courts, much less any Federal court. I think we can safely say that this is political grandstanding.

    That being said, it is stupid grandstanding given the implications: no federal assistance as above, no federal infrastructure or service support (tracking down those illegal aliens they are so concerned about, removing US military presence from the State, the death of out of state tourism (since how can anyone not from Arizona trust whether Arizona is willing to respect their rights.) Sure that is probably bleaker than what would really happen, but that is the implication as I see it. This would be Arizona breaking covenant with the other forty nine states.

    I’m curious does this mean that Counties and Municipalities within the state have the right to veto Arizona State Law they disagree with?

    As for the Marjiuana exceptions, my understanding is that those are narrow targeted exceptions, not a broad sweeping statements saying we don’t have to obey the Federal Government, but even then no one denies the Federal Governments right to enforce it’s laws, they’ve just stated in these cases that the State and or community has better things to do. If the Justice epartment decided on a major crackdown then they wouldn’t have any means to block it.




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  26. Steven Plunk says:

    Hijacking identities is low. If a real conversation is to take place we have to know who’s talking.

    With that out of the way I find the scatological references and insults less than convincing of any real argument. Obamacare is overreach, the push back is a result of it, and settled law can become unsettled. I doubt the states will prevail but the attempt is a powerful political message.

    anjin, what’s with headless bodies? Have I ever brought that up? Is it relevant to this discussion?




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  27. c.red says:

    Steve P – If the ACA Individual Mandate is overreach how does that reconcile with the stated conservative goal to have mandated private retirement accounts (as opposed to Social Security)?

    Not my original thought, I saw it over at Steve Benen’s place (The Washintong Monthly), but I think it is very germaine to this debate.




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  28. Pug says:

    Chad, If they give back the federal money do they also get to stop paying federal income taxes and do federal lands become state lands?

    Sure. Those old geezers down in ‘Zona can fund their own Medicare and Social Security, and they can stop paying Federal income tax. The U.S. government comes out winner on that one.

    Of course, they also get to keep their share of the national debt and can pay for their own defense.




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  29. walt says:

    I am the “wr” looking for intelligent conversation. I don’t know who the other “wr” is, so I’ll go by “walt.”

    tom p: the District of Columbia is not the “supreme law of the land.”




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  30. James Conner says:

    See Madison’s 28 August 1830 letter to Edward Everett for Madison’s definitive position on nullification.




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