Nullification vs. Art. V Convention: Why Mark Levin is wrong

By: Michael Lotfi
19

MarkLevin


NASHVILLE, Janurary 16, 2014 –Mark Levin has one of the top-rated syndicated talk radio shows in the country. No one can deny that the lawyer and New York Times bestselling author commands major clout in conservative politics. However, should this clout serve as a warrant for millions of Americans to blindly follow his words? In his latest book, entitled ‘The Liberty Amendments: Restoring the American Republic,’ Levin seeks to provide a path for Americans who wish to fight back against an unchecked federal government. Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution.

CONSTITUTIONAL CONVENTION LACKS SOUND JUDGMENT

Before going down the rabbit hole, it is important to understand that calling for a convention to amend the Constitution with amendments shows absence in sound judgment.

Think about it… The NSA, NDAA, ObamaCare, Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. are all unconstitutional. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.

Did the federal government come to a grinding halt simply because of those amendments? Since Marbury v. Madison in 1803, the American government has been run lawlessly. Some call the Constitution ineffective.

Americans must ask themselves: Is the Constitution ineffective, or do we have a lawless, disobedient federal government? If the answer is the latter, which it is, then Americans should see little refuge in additional amendments, which the lawless, disobedient feds will simply continue to ignore.

LEVIN WRONG ON NULLIFICATION

Two emerging fronts seen as remedy to unconstitutional federal usurpation of power have arrived at the forefront of American politics. On one end is Levin’s constitutional convention, and on the other end is nullification.

Levin rebukes nullification and calls it unconstitutional. Levin even attempts to use James Madison’s “Notes on Nullification” to say that Madison himself rebuked nullification.

It is important to know that this is not truthful. What Levin refers to as Madison’s rebuking of nullification is actually Madison rebuking the 1832 South Carolina Ordinance of Nullification. Levin takes Madison’s words out of historical context to support his argument that Madison completely rejected nullification.

Madison was in fact rejecting South Carolina’s quasi nullification of constitutionally warranted tariffs. Vice President Calhoun and the South Carolina delegates’ Ordinance of Nullification was not nullification at all, but something the group had concocted out of thin air. This is what Madison rebuked, not general nullification. Somehow, Levin fails to mention this historical context.

In fact, Madison, the “Father of the Constitution,” lays forth the plan to nullify unconstitutional federal acts. In Federalist #46, Madison speaks of “powerful means” to oppose an unconstitutional federal government. These powerful means include nullification.

Although Levin uses Madison to support his argument for an Article V convention, Madison himself never once made mention of using such a tactic for resisting tyrannical government. On the other hand, Madison does indeed call for nullification, as did Jefferson.

Where powers are assumed which have not been delegated, a nullification of the Act is the rightful remedy.” -Thomas Jefferson

BULLET TO THE CONSTITUTION?

Who would Congress send? This is the worrisome question. Congress is now controlled almost exclusively by lobbyists. States essentially lost all control over the federal government with the implementation of the Seventeenth Amendment. Hardly a federal delegate in Congress feels the need to report to their respective state legislators. The risk for a runaway convention, by which our current Constitution could be completely shredded, is of paramount concern.

Let’s say the states somehow maintain total control without the federal government stepping in, which is essentially impossible. Republican lawmakers consistently kill bills in committee, which would gut the federal government in their states, due to corporate lobbyists that pad their wallets. Chris Christie, Mitt Romney and others love big government. Would you trust these men with the Constitution?

The state of Hawaii has already passed a resolution with proposed amendments, which if passed, would completely gut the Republic and add Obamacare to the text of the US Constitution.

Levin is pushing for state legislators to take the charge in this quasi-convention process. Meanwhile, he disregards the fact that the Constitution delegates these state legislators no power to do so.

Levin himself cannot follow the current Constitution, but somehow validates proposing amendments, which the lawless federal creature will (theoretically) suddenly feel obligated to follow. This is an oxymoron.

If Levin is so hell-bent on states controlling the process, why doesn’t he embrace nullification, or as Jefferson referred to it, “the rightful remedy”?

THE RIGHTFUL REMEDY

The Supreme Court of the United States (SCOTUS) was charged with keeping the federal government in check. However, the SCOTUS began to extend its own powers in 1803 when it gave itself the power of judicial review in Marbury v. Madison. So began the history of a constitutionally limited federal government deciding for itself the limits of its own power. As a result, today we have a lawless, all powerful federal government.

Jefferson and Madison envisioned this possibility and wrote that the Court was not the final arbiter of law, but the people themselves within their respective states. After all, how could a Court redefining its own limits ever remain constrained?

Jefferson wrote in the Kentucky Resolutions how to handle such federal usurpations of power:

…Where powers are assumed which have not been delegated, a nullification of the Act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits…” (emphasis added).

Madison confirmed Jeffersonian nullification in his Report of 1800 and Notes on Nullification.

The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (emphasis added).

In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.

The Ninth Amendment expounds even further the right to nullification. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.

Levin is perhaps the most appreciated and admired political talk show host in America. Rightfully so, he has earned his accolades. However, with such clout comes an incredible responsibility to not only seek truth, but to display the humility and courage to admit when you are wrong.

 “Whenever the General Government assumes undelegated powers, its Acts are unauthoritative, void and of no force.” -Thomas Jefferson.

-To learn more about nullification, one may visit the Tenth Amendment Center.

(Opinion): Follow Michael Lotfi on Facebook & on Twitter: @MichaelLotfi

The following two tabs change content below.

Michael Lotfi

CEO, Political Director at BrandFire Consulting LLC
Michael Lotfi is a Persian-American political analyst and adviser living in Nashville, Tennessee. Lotfi is the founder and CEO of BrandFire Consulting LLC. The firm specializes in public and private technology centered brand development, lead generation, data aggregation, online fundraising, social media, advertising, content generation, public relations, constituency management systems, print and more. Lotfi is also the executive state director for the Tennessee Tenth Amendment Center, a think-tank focused on restraining federal overreach. Lotfi graduated with top honors from Belmont University, a private Christian university located in Nashville, Tennessee.

  • r3VOLution IS NOT republican

    Great piece! And someone PUBLICLY ACKNOWLEDGING that “the NSA, NDAA, ObamaCare, Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. are all unconstitutional,” is very impressive.

    Any date set for the Levin vs. Woods debate?

  • Chris D

    With democrat control of the senate, mixed with their enactment of the nuclear option…a convention would almost certainly lead us into a direct democracy. Mob rule. It took rome 500 years to finally fall after they rejected their senate. If the object is too make our constitution better than we cannot possibly with any reasonable expectation believe the controllers would not hand themselves more power while legitimizing all they have already done to us

    • Matt

      The Senate, or the Congress for that matter, is not involved. This is a way to bypass them. Read the book and you’ll have a leg up on the author of this article who is completely wrong about everything he wrote about the Article V convention.

      • Matt

        Congress does not pick the delegates. The state legislators do.

        • r3VOLution IS NOT republican

          Perhaps Mark Levin could make these points, when he publicly debates Tom Woods or the Tenth Amendment Center folks, right?

          • Matt

            Points he’s made publicly many times, yes I imagined he would.

            http://www.c-spanvideo.org/program/MarkLev

            At about 1:30:00 he addresses the idea that “they don’t follow the constitution now why would they follow amendments.”
            At around 1:45:00 he talks about nullification.

            Congresses involvement is addressed very early on and has been addressed by him over and over.

          • r3VOLution IS NOT republican

            Ok, EXTREMELY ANGRY right now…

            I WASTED MY TIME, FILLED MY PUKE-BUCKET, clicked to hear this FAKE-conservative LYING LEFTIST give his “explanation.” GOT NOTHING BUT NONSENSICAL GIBBERISH!!!!

            1. Our government, ON EVERY LEVEL is INFECTED with republican/democrat, HUGE-GOVERNMENT blood. Article V DOES NOT ESCAPE THEM!!!!!!!!!!!!!

            2. Mark claims if the feds choose to ignore what the States implement, through Article V, then “he [Obama] is in violation of law.” HE IS IN VIOLATION NOW!!!!!! NOW!!!!!!!!!!! Same with STATE politicians AND EVEN LOCAL politicians!!!!!!

            3. Mark claims he knows no other remedy? STATE NULLIFICATION IS THE REMEDY!!!!!!!!!!! There is NO BETTER solve than just saying “NO! WE WILL NOT COMPLY WITH ILLEGAL DECREES!”

            Call me when Levin has scheduled his Woods debate. Until then, HE HAS NOTHING! ZERO credibility, ZERO integrity. HE IS the coward, he claims so many OTHERS are.

          • Matt

            Your clearly a nut job. I hope that anger serves you well as you dream of your second Civil War. I will just say that any state or a handful of states that goes against the federal govt without a majority of the states will easily be bullied into compliance in the same fashion the “state” drinking age was nationalized. It’s called coercive federalism. And hey, if it doesn’t work, you can secede, we all know how well that works right?

          • r3VOLution IS NOT republican

            SO predictable. Mark would be PROUD of you implementing his debate style.

            1. You DID NOT refute anything I wrote (because you can’t). Mark Levin would NO DOUBT run into the same difficulty – which is why he will NEVER debate.

            2. Out comes the Alinsky Rules and personal attacks. Actually I was a little disappointed to not get a “take your meds” reply.

            3. You REDIRETED to Civil War and secession, two things COMPLETELY UNRELATED to State nullification or Article V debates. State nullification, of course, PRESERVES a peaceful union.

            4. You have, by your own words, surrendered to COMPLETE federal DOMINATION. I have not.

          • tpalya

            6-9 Mon thru Fri.
            Tune in, you might learn something.

          • r3VOLution IS NOT republican

            6-9 Mon thru Fri is a lot of time to spend COWERING IN THE CORNER, hoping this Tom Woods thingy goes away.

            Too bad EVERY aspect of Levin’s life isn’t equipped with that magical dump button… right?

          • Matt

            and about 2:30:00 too

  • Slim_Strontem

    Stupidity is not corruption, until it speaks.

  • Gregory Alan of Johnson

    Levin’s a lawyer?!? That explains everything!

    • tpalya

      If you didn’t know he has an Doctorate in Constitutional law
      then you know nothing about the man.

      Why do you judge people you know nothing about?

      • Gregory Alan of Johnson

        Why do you trust folk that have J.D.’s? Why do you claim me ‘judging’ instead of attempting accountability? The BAR is destroying this world and is in league with many, if not all, of the “secret” Luciferian societies.
        For ALL of the attorneys/lawyers out there:
        “No Law or Fact Shall be Tried in Court”

  • tpalya

    I suspect the author of this hit piece didn’t read the book.

    • r3VOLution IS NOT republican

      Care to refute anything? A tough ol’ ‘murican badmuthutrucka, with an eagle, Gadsden, gun and the ‘murican flag for a profile pic… should have NO PROBLEM… backing up words, right?

  • DaveGinOly

    SCOTUS did not “give itself” the authority of “judicial review.” It was moved by a plaintiff for relief.

    “Judicial review” is an inescapable function of the courts. They did not take it upon themselves, it is a natural consequence of the fact that they hear controversies of fact and law. Courts are moved by plaintiffs (and therefore empowered by them) to take action – no court takes an action without having been moved by a party in a suit/controversy. A court is a place where two parties take a controversy of law or fact to have the controversy settled by the court. Often the controversy is over a contract and money. The court hears the arguments from both sides and then, based on the law, the facts, and the arguments as presented by the parties, it makes a determination to settle the controversy. None of this is in the Constitution – it is what courts do, it is part of their nature and does not need to be spelled out. (Even criminal cases follow a similar tack – two parties contest the facts and law before the court, and the court makes a determination – in a bench trial – concerning the arguments and facts alleged before it.)

    Now and then one of the parties to a controversy of law is the government. So a plaintiff takes his complaint about the government to a court, as he would a complaint about any other party. The two parties present their evidence, make their arguments about the “controlling law,” and submit their claims to the court for a determination to settle the controversy. In this way, the courts appear to “assume” the power of judicial review. They have done no such thing. A court cannot move without a claimant who “moves” (empowers) the court to take action. It is the claimant whose authority is being exercised. The claimant merely uses the court as a tool with which to effect his claim. So when a citizen believes a statute to be unconstitutional, he goes to the court and moves (empowers) the court to stop the government from exercising unlawful authority under the unconstitutional statute. IF the court agrees, it orders the government (as it would any other respondent) to abide by the claim of the plaintiff. That courts have oversight of legislative and executive acts is a natural consequence of what courts are, what they do, how they function, and how plaintiffs may move them to act. No author of the Constitution would not have presumed otherwise. Indeed, we have a “right to petition government.” This right does not specify or limit which branch of government we may petition. We can as easily petition the judicial branch for relief as we can the legislative or the executive branches. “Judicial review” is a natural consequence of the fact that courts settle controversies of law and fact between adverse parties, because sometimes one of those parties is government.