Sunday, August 12, 2012

Secession versus nullification...some more Q&A....

What is secession?

Secession is the voluntary withdrawal of person or group from an organization or alliance.

Can states secede?

Yes, de jure, and maybe, de facto.  There is no provision in the U.S. Constitution prohibiting secession of a state.  The Tenth Amendment provides that “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.”  The Eleventh Amendment (which I mistakenly cited in an argument recently…but I have a good excuse) doesn’t prohibit secession, either.  That being said, in Texas v. White, 74 U.S. 700 (1869), the Supreme ruled otherwise.  So what?  It’s a Reconstruction-era kangaroo court decision that is unsupported by either the text of the constitution or by American tradition.  It is even less defensible (constitutionally, not morally) than the nonsensical pro-abortion decisions based on “emanations” and “penumbras” that the Supreme court routinely issues today.    So a strict commonsense reading of the actual text of the US Constitution permits a state to secede.  Several northern states almost seceded at the Hartford Convention (1814).  Several southern states did secede, but …. well … they didn’t manage it very prudently and they started shooting too soon, and we all know what happened after that.  But there’s reason to believe that a better orchestrated secession plan might work.  Might work, that is. 

 What is "nullification"?

Nullification could be one of two things. It could either be the refusal by the state government to enforce federal law (there are probably more precise technical terms, but for clarity we'll call this "soft nullification") or it's the a declaration by the state declaring that a federal law is inapplicable to its citizens (we'll call this one "hard nullification").

Can states nullify federal laws?

 Unlike secession, which is not proscribed by the letter of the US Constitution, there is a reasonable argument that nullification is unconstitutional.  Article VI of the US Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Think in the Constitution or Laws of any State to the Contrary notwithstanding.” Sure, you can argue that laws Kansas nullifies aren’t made “in pursuance of” the Constitution.  But the fact of the matter is that nullification is directly proscribed by the text of the Constitution itself, and you have to get into the muck of modern constitutional theory and jurisprudence to make a case.  Good luck with that, guys!

So what's wrong with soft nullification? It seems to be a less confrontational, less drastic option than secession, doesn’t it?

What I’m calling soft-nullification—a state’s mere refusal to enforce an obnoxious federal law—is meaningless these days. Nullification might have had some effect in some instances prior to the War Against the States (the so-called Civil War), when the only federal officials around town were the postmaster and the occasional customs agent down at the docks.  Back then, the federal government depended on state cooperation for enforcement of the few laws it had. These days, though, state cooperation in enforcing federal laws is unnecessary and irrelevant. The feds have the apparatus to enforce its laws itself.  How many gun-and-badge-carrying federal law enforcement officers are there just in Kansas these days?  Plenty, brother, especially thanks to the "War on Terror."  And how many non-gun-toting federal officials are there who can shut economic activity down at the push of a button?  Plenty more.  The way things work, the federal government has direct control and access to all aspects American life, and it doesn't need state help for enforcement.

So you think it’s bad now?  In a soft nullification, you’ll get a rapid growth in federal law enforcement hires to fill any state's enforcement void, if not a quick and violent imposition of martial law by nationalized guard imported from another state (think Missouri….think Quantrill). The framework for increased direct federal law enforcement is already in place (read up on FEMA plans and the latest papers coming from Ft. Leavenworth War College faculty) and there are plenty of stupid, power-hungry people (Kansans included) ready to sign on to be the federal muscle.  If you don’t believe, me, look at how quickly the TSA turned tens of thousands of former fast food employees into puffed-up, groping goons.

What about hard nullification?  That still seems less confrontational and less drastic than secession, right?

Hard nullification would declare that an obnoxious federal law in inapplicable to a state or its citizens.  In order for hard nullification to work, the state would have to protect its citizens from the effects of the federal law.  So how would that work, given (as we said above) that there are a whole bunch of gun-and-badge federal law enforcement officials right here in Kansas, and many more guys in Washington and northern Virginia with their finders on various buttons?

· Kansas nullifies a PATRIOT Act  or Dodd-Frank regulation for state banks?  A state bank stops complying, and the bank president shows federal regulators the door, with a smile on his face.  Within minutes, someone at the Treasury Dept. pushes a button that shuts off the FedWire and ACH systems, so that bank ceases to function. If the bank attempts to continue its business anyways, then armed Treasury agents come in and arrest the bankers. And if the bankers, resist, the armed Treasury agents shoot them. 

· Kansas nullifies the Affordable Care Act and instead enacts real health care freedom for Kansans? All fine and dandy, until a Kansan refuses to pay the new federal health care "tax/penalty/tax."  Some bureaucrat in Washington pushes a button, and that guy’s liquid assets are frozen. Then Treasury agents try to foreclose a tax lien.  Or else they try to haul him off to jail when he refuses to pay the penalty.  Or they shoot him if he resists arrest--justifiably, under Kansas law--because their authority has been nullified.

· Kansas passes commonsense environmental laws that contradict regulations under the Clean Air Act or RCRA? Poof! The EPA pushes the KDHE aside.  Any Kansas business owner who continues to follow the Kansas law and thumb his nose at the feds gets cited, and when he ignores the citation, the EPA has calls in the FBI agents to shut the business down and arrest him.  The business owner resists arrest because Kansas has said the federal law is nullified, so they shoot him. 

· Kansas decides that you don’t have to be fondled by the TSA and get a dirty picture taken of you in order to board a commercial flight from Wichita to Goodland (why anyone would fly commercial from Wichita to Goodland is beyond the scope of this question, but really…bear with me).  The response here is perhaps more immediate and dramatic the USAF scrambles and shoots the plane down.

The fact is, too much law enforcement power is already in Washington's hands for hard nullification to work. The only way hard nullification has any value if Kansas makes it a criminal act for a federal officer to enforce the federal law in Kansas, and is willing to step in and nab the fed when he tries.  Think of California, where pot is legal, you don’t hear of any county sheriffs defending the rights of Californians to get stoned, do you?  The DEA busts down the doors of a dispensary and hauls everybody off while the Sonoma county sheriff’s deputy is getting a Bismarck with sprinkles and a large coffee “regular” at Dunkin’ Donuts in Sebastopol, not defending his constituents against federal depredation.   

What would happen if suddenly state and local officials did try to protect Kansans from the feds in a hard nullification scenario?

Suppose Kansas nullified the PATRIOT Act and allowed state banks to open accounts to whomever walked in, just like in the old days.  Suppose three or four armed federal agents descend upon the Jingo State Bank after it has failed to send in its PATRIOT Act reports for a few weeks.  Suppose that Miami county Sheriff JoeBob Jones stops the feds and demands that they release the bank president that they’ve just taken into custody.  The feds decline, draw their guns, and Sheriff Jones shoots them…justifiably under Kansas law.  Well, more feds descend with more firepower, hunt down Sheriff Jones and shoot him.  Tensions rise, and the local citizens get rowdy and rally to defend themselves.  More feds come, and maybe even a nationalized unit of guard troops get pulled in to occupy the area under martial law.  Then a small percentage of those guardsmen may decide it’s as much fun to shoot Kansans as it was to shoot Iraqis and Afganis. Naturally, the folks of Miami rise to defend their own, and you’ve got a mini insurrection.  Remember…as I said in my post below, the little guys can only make things worse by fighting back.  Here’s where hard nullification results in an in an isolated and amateur conflict, not a coordinated or professional effort at repelling an aggressor.  

 Seems to me there's more shooting going on in a hard nullification scenario than in a secession scenario, and it's a lot more random and unproductive.  All the more reason to seriously discuss secession...if you have liquor and cigars handy.

 More to come….

Where to start the discussion....a little Q&A

Where would you start a serious discussion about secession?

Gosh, what's a serious discussion these days? I don't suppose you'd use a blog. That’s slightly above an MTV talk show format, and way below an article in The Economist.  The blog doesn't seem like a serious forum. There are serious discussions all the time. At this point, the most serious of them should occur while consuming alcohol and tobacco. But all the folks I would like to have this conversation, a beer, and a cigar with are busy with their families right now, so the blog will have to do.

Where should the pressure for secession start?

Well, I suppose it should start with guys like me who are both fed up with the way things are, and have the courage to take little steps, at least, to get them changed. Notice I said little steps. Little guys like me aren't going to accomplish anything remarkable by starting an armed insurrection. In fact, little guys like me probably couldn’t even start an armed insurrection if they tried.  They could only create an "incident" that the feds could use to justify further depredations.

Remember the days around Waco and the Oklahoma City bombing? I was in grad school and was studying the rhetoric of the militia movement back then, so I know a little about it. Success in the secession movement is unlikely in any case, but failure is certain if we go the route of a self-proclaimed rebellion without the support of state and local government.  A dude, or even a bunch of dudes in camouflage shorts who play with cheap copies of an AR (or even the expensive real thing) on the weekend or who build fertilizer bombs are only going to make things worse, not better.  Just ask Guy Fawkes, or Timothy McVeigh.

Where should the concrete steps towards secession take place?

In Topeka, at the Statehouse. Remember, little guys can only make things worse on their own. Unless there's a huge catastrophe that turns our world into Mad Max's, we're going to have to work through channels. The state has plenary power. We're going to secede from the United States, not start a revolution like a bunch of Marxists/Maoists. We have to start by winning control in Topeka.

What's the first step in Topeka?

It's simple: the legislature needs to to set up a "Sovereignty Commission" to study the options. The Commission will develop and recommend the economic and political steps that need to be taken to protect the citizens of Kansas from federal depredations.  Secession need not be a foregone conclusion when the Commission is set up (we’ll look at “nullification” separately), but certainly, the Commission's considerations must include withdrawal from the union on terms that (for the Kansans' part) would allow us to live peaceably alongside those states that choose to remain in the union. The Commission will encourage and coordinate with similar commissions in other states. The Commission will also plan on how to defend the state if it is subject to foreign aggression following secession (e.g., the possibility of establishing an official state militia on the Swiss model).

There's no room in the Kansas budget for a new Commission, is there?

It would be cheap to fund such a Commission, at least in its early stages. All the legislature needs to start with are two paid employees, the seven or eight volunteer Commission members, and some money to award grants to economists and the like for the real work of drafting the report. It would probably mean a state expenditure of less than $1 million. I'll bet we spend less on this important project than on Sam Brownback's jet fuel. If we're really worried about where the money will come from, then pay for the Commission by discontinuing state printing of the hard-copy official court reporters. They're expensive, nobody uses them for legal research anymore, and they're not handsomely bound, so they don't even work as decorations on a bookshelf.

Does the Curmudgeon want to be on the Commission?

Nope. I'm not looking for a job as the executive director, or even a nonpaid appointment to the Commission. I value my privacy and my family’s private life, and I would accept no part in public life, given disclosure requirements as they are today.

Well, then, couldn’t the Koch brothers fund it?

Of course not. They're NeoCons. They are too heavily invested in the way things are to be interested in any real and meaningful change.

Hello boys!

For starters, when this blog was up for about 10 minutes, and I had already gotten 12 page views. Three of them are my own. The rest must be NSA, FBI, and such.  Hooray for our homeland security apparatus.

Hello, boys! You're going to be disappointed.

BTW, how's the weather in Virginia?

It always starts with one person and a half-baked idea....

I started to post on Kansas secession in my original (and largely dormant) blog, Curmudgeon's Cave, a few weeks ago, but I didn't get very far.  I've been busy with family and (fortunately, in some ways, and unfortunately, in others) paying work.  But a recent conversation with a candidate for the Kansas State Senate has me interested in the topic once again, so I wanted to take the topic back up.

Honestly, Curmudgeon's Cave isn't the right place to do it.  It's full of a bunch of stuff that really isn't incompatible with what I'm calling the Kansas Sovereignty movement (or when I'm typing in a hurry the "Kanaas Sovreightly mocement"), but not directly germane to it.  No good purpose would be served in forcing potential protestant allies through my rants against liberal Catholics or the novus ordo establishment (they have no idea what I'm talking about).  For them, we can stick to politics for the moment and I'll try to convert them later, after we've set temporal affairs in order and we have time for a pleasant talk about eternal things.  The movement needs a new home, and the best time to establish that new home is right now, when th Kansas Sovereignty movement has only one

One one member, you say?  That's right.  Just me.  I've been corresponding with the Middlebury Institute, and I've confirmed it.  Absolutely nobody but me is opening promoting Kansas secession right now.  I'll be lonely, but hey....I'll be the founder.

So here goes.....