While we have to wait and see what November brings, the chances are pretty good that there will be an additional few dozen Marylanders walking around with the unofficial title of “former member of the General Assembly.” Some, like outgoing Senator Nancy Jacobs or Delegate Donna Stifler, decided well in advance, while our local Delegate Rudy Cane cynically waited until after the filing deadline to insure no one would oppose his apparent choice for successor, Sheree Sample-Hughes.
And then we have the handful who lost in their primary – among them was Delegate Don Dwyer, whose well-documented personal struggles and legal issues, along with redistricting, made his an uphill battle. But as he wrote a few days back:
I simply couldn’t walk away without committing to continue my efforts in regaining liberty and true freedom. I believe as many do, that the one best solution to federal tyranny is the doctrine of NULLIFICATION under the 10th Amendment of the US Constitution. I would like to introduce the States Rights Foundation and new blog The Rightful Remedy.
Washington will not fix itself. Our intent is to partner with other groups and people who are dedicated to advancing the 10th Amendment movement. It is the solution to the out of control Federal Government. If enough States say NO, the Federal Government will be unable to enforce its unconstitutional laws, lacking the resources to do so without aid by the States.
Whether intentional or not, The Rightful Remedy was officially launched on Bastille Day, July 14.
As has been his modus operandi in the past Dwyer is holding a gun raffle to raise funds for his project, which he explains further:
As a Maryland State Delegate, I introduced several bills considered Nullification Legislation, by which the State of Maryland would refuse to comply with Federal “laws” for which the Federal Government has no Constitutional authority to impose. The legislation essentially prohibits the State to use any resources to assist the Federal Government in taking action against Maryland Citizens who are not complying with any Unconstitutional Federal Act. The result, should such legislation pass, profoundly affects the ability of the Federal Government, which rely (sic) heavily on resources from the state, such as police, to effectively enforce their “laws.” (Emphasis in original.)
Nullification is an intriguing practice, although it’s not often tried (here’s one example.) It brings arguments about whether it should be up to the states or left to the judiciary to decide what is in accordance with the Constitution.
But states are generally reined in under the federal judiciary’s interpretation of the Supremacy Clause (such as the case with Arizona’s SB1070 in 2010) as well as the prospect of losing needed federal funding if they don’t perform a particular action – examples I’ve often used are the .08 blood alcohol level standard and legal drinking age of 21, for which the lack of acceptable state law resulted in a deduction of federal highway funding. It would take a state willing to endure the penalties of perhaps defying the Supreme Court (as in a fictional example I recently reviewed) and losing a significant part of its federal funding to openly adopt nullification, and I can tell you Maryland politicians are way too gutless to try either. (Given his go-it-alone attitude, I daresay Rick Perry and Texas might come the closest to using the approach.)
Yet there is a logical argument to non-enforcement as well. We’ve often heard about the prospect of gun confiscation, but there’s an open question as to whether law enforcement – particularly in rural areas like the Eastern Shore – would be willing to go on what’s been described as a “suicide mission.” At the time, Dwyer was calling for the formation of a “voluntary militia” in each county. On the other hand, we have constant complaints about the federal government not enforcing certain other laws, such as the ones dealing with illegal immigration – a backhanded form of nullification unto itself.
I guess the problem is who decides which laws to not enforce, and if they’re not enforced, are we still a nation of laws? A stricter adherence to the Tenth Amendment and Constitution in general would help, but for that we need to clean out our judiciary swamp. I think an equally productive avenue for Dwyer to pursue with his States Rights Foundation would be to work for repealing the Seventeenth Amendment, which has been argued in some circles for several years and is something I’ve advocated for on both a federal and state level as well. That would help to assure the interests of the several states are represented in Congress, so nullification may not be as necessary.