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How Nullification Might Work 2010/01/25 (04)
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Jun 5, 2025
Jon Roland explains how state nullification of unconstitutional federal actions might work. With Lela Pittenger. Austin Constitution Meetup Jan. 25, 2010.
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uh
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i
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as i said earlier i'm not really in
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favor
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of this commission taking on too much
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too fast
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for example if it one of the first
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things it did
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was to find the federal income tax on
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wages to be unconstitutional
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it would create a firestorm
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that would be taking on too much too
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fast
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i'm in favor of it doing that but
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not the first thing
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so
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i think even among
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liberals
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you will find some who think some
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federal actions are unconstitutional
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a lot of acl types that are actually
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agree with libertarians on a lot of
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legal issues
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especially in texas
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the aclu of texas is not like the
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national aclu
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it's a separate organization
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uh
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that they for example even the first in
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the second amendment which
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the national aclu does not
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so
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i think among
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the people who have written
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scholarly articles on constitutional
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topics
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include a lot of practicing lawyers
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including a lot of the guys who run for
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public office
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for judicial positions on libertarian
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ticket
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it includes a lot of
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law professors
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historians and other people
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who i think that if they were
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that they would comprise the pool of 230
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that my legislation calls for
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and if 23 of those were selected at
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random
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that you you would probably get a mix
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that would
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not be too bold but it would be just
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bold enough
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to take on
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federal actions
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in
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a good order
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less important ones at first and become
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bolder and bolder and bolder until they
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eventually were of course where they
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give a lot of public demands on them to
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be bolder and bolder and bolder
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and this might eventually lead to
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uh
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this wrapping up this ground swell of
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public resistance
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that would become also more and more and
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better informed
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so
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that's the dynamic i'm trying to
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organize here
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it might not work
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but of course a lot of things we might
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try it might not work it's worth a try
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and so how did you come to the number
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230 for your pool i mean versus 100 or
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500
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what about that number i don't think
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there's probably more than about 230 in
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texas
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that's fair
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uh and if the
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selection of 23 were about 10 percent of
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at any given time and you keep keep
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rotating through them
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the idea is not to make it a permanent
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body
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where guys are having to serve
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terms you know lifetime terms
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maybe serve for
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you know six months
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at most and then rotate through another
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group and have staggered terms so be a
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constantly changing mix of 23.
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the number 23 is a standard number for a
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grand jury
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so that a majority is 12.
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a grand jury should always decide by a
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vote of 12.
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if you only have a core a quorum of say
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16
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they would still need to be by 12 vote
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of 12.
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so
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you want to get a bunch of guys who are
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likely to show up to meetings
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and that so that you have a you can
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easily get a vote of 12 to declare
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something unconstitutional
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and you need to have people who are
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a little better trained than the average
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citizen
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you know i have worked with panels of
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average citizens
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and
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it's probably not a good idea
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to
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have ordinary laymen
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trying to decide that something is
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unconstitutional
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at least not until
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they're better educated on
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the constitution
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i'm hoping that this commission
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system will drive that process so that
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down the road
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we could pick
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from among the general citizenry and
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have it work
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but their public education has not
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prepared them yet to do that
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we still have a lot of educating of the
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public to go before they're ready for
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that
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and then one more question
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like you said you wouldn't want them
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immediately to attack something as big
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as federal withholding taxes
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do you think nullification concerning
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the health care legislation currently in
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congress do you think that's too big to
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bite off in the next year or do you
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think that's a good starting point where
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are you on that that's a good starting
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point but of course right now we don't
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have a bill right
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one of the problem with many of these
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nullification proposals
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is that they're
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trying to anticipate a bill that doesn't
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exist yet right
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and that really doesn't work
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a nullification edict
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has to be about something fairly
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specific
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such as requiring people to buy
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insurance
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further down the road it could take on
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something bigger like
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you know medicare medicaid social
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security right
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so
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but those would be big deals
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initially it needs to pick on things
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that
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are going to be initially
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popular
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for the commission to do
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unpopular for the federal government to
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do and to build on that and
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many of the elements of the
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proposed health care package would seem
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to fit that
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that is after all what's driving the
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current proposals
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for this nullification
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but
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unless and until we actually get a bill
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enacted
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we don't have anything to work on so we
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need to have
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a commission
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or something like it in place to be
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ready when that happens
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and it can't be
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we can't wait another two years for
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these two years legislative cycle
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to enact something afterwards
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it needs to be anticipatory
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uh it could even now could for example
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do things like
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take on the real id act
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that has been effectively nullified
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by states
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not passing
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you know legislation to fund it
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well
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the refusal to fund it is certainly
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uh one way to do it
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but again a state that doesn't have
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continuous legislative sessions like
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texas
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presents a problem
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so
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it would be much better to have a body
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in place
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to take the complaint
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even in anticipation
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i see one of the benefits of a grand
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jury
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is that it does not have to
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only deal with cases and controversies
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where somebody's been injured the way
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the federal courts have
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decided to do
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there was a time when the cases and
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controversies language was written
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where it was considered
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okay for any citizen
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to
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privately prosecute a public right
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to do something like
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challenge the constitutionality of an
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act of congress
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even before it had been
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applied to him individually
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causing an injury
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and the proppingham the maryland
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decision in 192 also in 1923
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held that
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the supreme court would consider
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a person not to have standing if he had
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not been personally injured
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so
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that knocked out the whole
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legacy
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of private prosecution of public rights
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uh you have to wait to be injured before
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you can sue
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well
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that's not entirely
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satisfactory but a grand jury is not
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such limited right
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a grand jury can have it find anything
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and in particular it can find that
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well
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if and when
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a bill to do this is ever enacted it
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will be unconstitutional right
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it can be anticipatory right
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and there's a real need for something to
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be anticipatory
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right
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so such commissions could really
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emerge as a kind of
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parallel judicial structure
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to review legislation
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i could foresee
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review commissions being set up in
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counties to review state legislation
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or uh
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you know
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all kinds of things like them being set
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up you know all over the place to review
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this and review that
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