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How Nullification Commission might reduce problem. Austin Constitution meetup Feb. 22, 2010, Part 4 of 4.
For more see http://constitution.org
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0:03
our nullification commission
0:05
proposal
0:08
has
0:10
been discussed a lot lately
0:13
and the question naturally arises
0:17
whether
0:18
it would work
0:20
for
0:21
dealing with this kind of abuse or that
0:23
kind of abuse
0:25
it soon becomes clear
0:27
that state nullification is only
0:29
applicable
0:30
to certain kinds of usurpations
0:33
generally broad kinds that require
0:35
cooperation
0:37
of state officials or local citizens
0:41
there are many things federal officials
0:44
and agents can do to people
0:46
that don't go before a judge or a jury
0:55
let's examine the federal action review
0:57
commission proposal
1:00
to understand this
1:02
first
1:04
the
1:05
component of the
1:07
commission
1:08
is to be
1:12
the powers of a grand jury
1:15
to meet continually continuously
1:18
with rotating memberships drawn
1:21
from a pool of legal historians and
1:23
constitutional scholars
1:25
appointed by the governor attorney
1:27
general or legislative council
1:30
empowered to review
1:32
the constitutionality
1:34
of congressional legislation
1:36
or federal regulations or decisions
1:39
and we find such legislation
1:41
regulations or decisions to be
1:44
unconstitutional
1:45
to issue an edict with the force of law
1:49
requiring that no state or local
1:51
officials
1:52
employees or contractors
1:54
cooperating the enforcement of it
1:57
and urging state citizens to refuse to
1:59
cooperate
2:01
this commission would be established by
2:03
an amendment to the texas constitution
2:10
now
2:12
you'll notice that some things are not
2:13
included in this
2:18
it is not
2:20
tasked with review of
2:23
federal court decisions
2:27
it was felt that
2:32
the attack needs to be on the underlying
2:35
statutes or regulations
2:37
because if you start challenging
2:40
federal court decisions
2:42
then
2:43
you may create a situation that
2:47
would lead to conflict
2:50
and what we're trying to do is to
2:53
pull the nails
2:55
out of the
2:57
edifice of usurpation
2:59
but to do so carefully
3:02
choosing our battles
3:04
and going after
3:07
legislative or regulatory acts rather
3:10
than court decisions
3:12
court decisions have to be gone after as
3:14
well
3:15
but realistically the only way to do
3:18
that
3:19
is by constitutional amendments
3:27
the structure and procedure
3:30
of the review commission
3:33
is that it has 23 members
3:36
which is the proper size for a grand
3:39
jury
3:41
they serve for staggered terms of four
3:43
to eight months
3:45
that means that some would serve for
3:46
four months some for six months some for
3:49
eight months
3:50
and then they'd rotate
3:53
they'd be drawn at random
3:56
from a pool
3:57
of at least
3:58
230 constitutional scholars and legal
4:02
historians
4:04
a larger number if possible but
4:07
we'd have trouble finding that many
4:09
in the state of texas
4:12
now some have asked what is a
4:17
constitutional scholar or legal
4:19
historian
4:21
the standard i would use would be
4:23
someone who has written at least one
4:26
book
4:27
or professional
4:28
paper
4:30
in the field
4:31
that's peer-reviewed
4:33
or
4:34
published by a major publisher
4:40
it's too difficult to try to define
4:43
these standards
4:44
in
4:46
this proposal at this point
4:48
but
4:50
we'll be getting later
4:52
in the discussion not in today's
4:56
presentation
4:58
into how
4:59
we might define who
5:01
the qualified people would be
5:05
they would meet at least one hour
5:07
once a week
5:09
they have a quorum of 16
5:12
and a vote of 12 would require be
5:14
required to issue an edict
5:18
based on presumption of non-authority of
5:20
federal officials and agents
5:23
and requires strict proof
5:25
of constitutionality
5:26
from inductive logic and historical
5:29
evidence
5:31
it shall be open to direct complaints of
5:34
the const unconstitutionality
5:36
of federal actions from any citizen
5:40
it shall have the power to subpoena
5:43
witnesses
5:44
and its deliberations shall be secret
5:47
except that they may disclose anything
5:50
in his presence
5:52
it may authorize criminal
5:55
prosecution
5:56
by issuing an indictment to any person
6:00
not necessarily a lawyer
6:02
upon a finding that the court cited
6:05
as jurisdiction
6:07
and and that evidence of guilt is
6:10
sufficient for trial
6:13
now you'll notice here with that what
6:14
i'm bringing into this
6:16
is the option of private
6:18
criminal prosecutions
6:21
it is currently not encouraged
6:24
under the law of most states
6:27
it is allowed for
6:30
in texas law
6:32
although it has certainly been
6:34
discouraged in recent decades by judges
6:39
so
6:40
this is part of what is trying to do
6:43
is to revive
6:45
private prosecutions
6:48
now the prosecutor may be a lawyer
6:52
believe
6:53
should not necessarily be
6:55
because
6:56
lawyers are generally under the thumb
6:59
of the judges
7:00
and would not be sufficiently
7:02
independent
7:03
to
7:04
conduct many of these kinds of
7:06
prosecutions
7:08
so we need to have a way of bringing in
7:10
non-lawyers
7:12
in order to intervene
7:14
in the system
7:15
at appropriate points
7:22
there need to be penalties
7:25
there's a general rule in law that if
7:27
there's no penalty it's not really a law
7:32
it's just aspiration
7:35
state and local officials employees and
7:37
contractors
7:39
should be notified in writing as such
7:41
eatings within 10 days
7:43
they'll have 20 days to comply
7:45
or be subject to termination
7:48
after one written warning
7:50
and a second failure to refuse to
7:52
cooperate with federal officials and
7:55
agents
7:56
that means that you can fire
7:59
people or terminate contracts
8:02
if people continue to cooperate
8:05
with
8:06
the feds
8:08
they have to decide
8:10
where their loyalties lie
8:12
it will either be with the state
8:15
or with the federal government
8:17
they can't have it both ways
8:19
and this could create a problem
8:22
for a lot of law enforcement agents that
8:24
are taking money from the federal
8:26
government
8:28
and thus
8:29
dividing their loyalties between
8:33
the state
8:34
and the feds
8:45
now the question has arisen
8:50
what happens to for civilians
8:54
if they can
8:55
go along
8:57
with this
8:59
nullification commission
9:02
and are prosecuted anyway
9:06
it is a
9:08
uh the court precedent
9:11
massachusetts v melon
9:13
from 1923
9:16
that held that a state
9:18
may not go to court
9:20
representing
9:22
its citizens
9:23
to defend their rights
9:26
that's a ancient doctrine of
9:29
parents patriarch
9:31
where the government can represent the
9:33
rights of its citizens and the supreme
9:36
court said he can't do that
9:39
so the state can't actually go to court
9:42
to defend
9:43
its citizens to get into trouble
9:46
but they can pay for lawyers for them
9:49
they can do everything short of actually
9:52
representing them in court
9:54
they could for example guarantee them a
9:56
job
9:57
they can pay their mortgages
9:59
their medical bills
10:01
put their kids through school
10:06
he can do all the things necessary to
10:09
make sure that
10:11
the only thing that the citizen will
10:13
suffer
10:14
is being locked away for a while
10:17
but that when he comes back
10:19
all he will have lost his time
10:22
and
10:22
nothing else
10:24
that's the
10:26
system that i want to try to establish
10:30
and and of course the state can
10:34
intervene
10:35
file briefs
10:37
and do all kind of the other things that
10:40
are necessary to try to defend his
10:41
position
10:47
so that concludes our presentation this
10:49
evening
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