The Slippery Slope of Nullification

Hank  Adler
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Posted: Jan 19, 2016 12:01 AM
The Slippery Slope of Nullification

“The big deal is simply this: once you allow the government to start breaking the law, no matter how seemingly justifiable the reason, you relinquish the contract between you and the government which establishes that the government works for and obeys you, the citizen—the employer—the master." John Whitehead.

Nullification is a constitutional theory that a state<https://en.wikipedia.org/wiki/U.S._state> has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional<https://en.wikipedia.org/wiki/Constitutionality>. Under this theory, States may reject, or nullify, federal laws that the States believe are beyond the federal government's constitutional powers. Under the theory of nullification, in the 1800s, states attempted to ignore Federal legislation ranging from the Alien & Sedition Acts to certain federal tariffs to the Fugitive Slave Act. The theory has never been legally upheld by federal courts.

Andrew Jackson spoke to the concept of nullification: "Nullification means insurrection and war; and the other states have a right to put it down." President Jackson never anticipated nullification on a macro basis or nullification on other than constitutional grounds. He never anticipated blatant acts of nullification by the White House, states, cities and now, universities. Universities appear to be both emboldened and encouraged by the Federal government to act as small monarchies with respect to federal and state law and to participate in the act of nullification with respect to discrimination in housing and hiring along with implementing the standard of a preponderance of evidence with respect to alleged sexual issues.

Where does nullification by government and governmental entities lead? It leads to nullification by our institutions and ultimately, perhaps to nullification in everyday life by everyday folk, the classic slippery slope. (Note the Oregon militia taking over a federal building – This is a non-governmental act of nullification.)

Nullification from the White House is easily documented whether it be actions with respect to the release of prisoners from Guantanamo, waivers under the 1996 Welfare Reform Act, or the lack of any serious attempt to protect the borders of the United States of America. Acceptance of nullification by the federal government with respect to states and cities can be seen in the federal government's refusal to direct actions against states and cities that flaunt Federal laws on drugs and/or immigration.

This leads to the slippery slope of nullification. If the Federal government can nullify, if the states can nullify, if the cities can nullify, why not other institutions such as our universities? Why cannot our universities practice segregation via ignoring the Federal Housing Act of 1968, discriminate in hiring by requiring specific racial makeup for employment, and/or severely limiting free speech? Where does nullification ultimately stop? Note every university in the country is under pressure by the federal government's Department of Education to adopt a “preponderance of the evidence" standard in terms of subjecting a life changing expulsion from the university for no more than the reasonable possibility of sexual misconduct.

At one of the fine academic institutions in the world, in early 2015, the Black Student Union demanded (1) hiring specifically Black employees for specific roles and (2) "the creation of a Black Scholar's Hall with a dedicated Housing Assistant to house first year Black students by reserving two floors in the new ............ for such purposes". These demands appear both to being accepted and being implemented by the administration at this university. (Note that neither a respectful letter requesting amplification of the ability of this university to move forward with their housing plan under the Fair Housing Act of 1968 did not result in any response nor did an e-mail request for information regarding current housing demographics. Is there de-facto housing segregation in place today?)

The requests by the Black Student Union and apparent actions by this university appear to be a nullification of federal and state laws with respect to discrimination as to fair housing and hiring statutes. While intellectually not relevant to the discussion, this university is not exactly the University of Alabama in June, 1963 with George Wallace trying to block black admissions. The University is located in a city regularly considered one of the safest cities in America; College Data reports that their student population is almost 50% Asian, almost 30% Hispanic/Latino, less than 20% Caucasian and about 2% Black.

Universities, with the federal and/or state governments as their accomplice or leader, are becoming the worst of the nullifiers. Beyond what is discussed above, nullification at the university level often results in severe limitations to free speech, limitations to reasonable justice and difficult as it is to believe in 2016, segregation.

Universities around the United States with some uniformity are now crippling the concept of free speech. Universities are changing curriculum to avoid triggering events. To be “triggered” means to have a feeling, an immediate sensation of repulsion culminating in aggrievement. Imagine trying to teach virtually anything and simultaneously being concerned about a “triggering event”. (This apparently limits history to discussions about soil cultivation over the centuries.) Universities are creating “safe zones” to prevent free speech among those who might be offended by free speech (or more likely, ideas with which they disagree). If universities limit free speech…………………

Where is the solution? It may rest with exactly the wrong people in the federal government and in many states. It is time for the Attorney General of the United States and the attorneys general in every state to wake up and do their jobs. Laws need to be enforced. The Constitution needs protection.