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10th Amendment and Federalism

Updated: Feb 26, 2020

H.C.R. 16 Concurrent Resolution Calling for the Creation of a National Federalism Task Force Rep K Christofferson -

70 in the creation of a National Federalism Task Force for the purpose of convening a series of

71 federalism summits to consider and develop plans for restoring and maintaining clearly

72 discernible divisions in the roles and responsibilities of the national government and the states

73 for the benefit and engagement of the American people.

• Federalist Papers:

“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.” - U.S. Constitution 10th Amendment • Under article III section 1 of the constitution it describes what authority federal courts have. This article limits the federal courts authority to federal laws and inter-state suits.

Thomas Jefferson: “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.” – Kentucky Resolution

1st question: WHAT IS NULLIFICATION – Jefferson stated that it “is the rightful remedy”, but did not give a definition of what that exactly means.

  • Definition today from The failure or refusal of a US State to aid in enforcement of federal laws within it’s limits, especially on constitutional grounds.

  • I feel this definition is far too narrow.

  • Another definition presented is: Nullification happens when States refuse to enforce unconstitutional Federal laws.

  • For this presentation I’ll use the following definition: Any act, or set of acts, which has as its end result a particular law being rendered null and void or unenforceable within a particular area. Paths for Nullification

1. Legalize Public Defiance – State Marijuana Laws – Acts of Nullification.

2. State, local and individual non-compliance – By 1928 there were 28 states that had stop funding alcohol prohibition enforcement; with local police only sporadically enforcing the law.

a. ie. Laws not going into practical sense.

b. Cannabis legalization in some form may hit 40 States.


c. Feds simply do not have the man-power to enforce all federal laws; they are nearly impossible to enforce on a local level.

d. Think of actions by both Martin Luther King and Rosa Parks – nullification of segregation laws, through civil disobedience.

3. State and Local Interposition – State agencies would stand between citizen and the federal government to protect rights; could include criminal charges that the federal agents are seeking to enforce a nullified law.

a. Ex. Response to the “Fugitive Slave Act” of 1850, a number of states did this and were quite effective.

4. Jury Nullification

a. Alexander Hamilton, 1804 – “Jurors should acquit, even against the judge's instruction...if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong. “

b. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction - Article XXIII, Constitution of the State of Maryland

c. In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts. - Article I, §19, Constitution of the State of Indiana New Bill: S.B. 174 Abortion Prohibition Amendments

• Abortion to be illegal, with the exceptions: serious risk to mother, abnormality that will result in fetal death, rape or incest (both to be reported to law enforcement).

We heard 9 Bills in the House today – We are now “TWO FOR TWO” with the only bills to fail, BOTH being brought back for more debate, and the second is the charm, as they pass! HB107 – Effective Teachers in High Poverty Schools Incentive Program Amendments-

- 13 NEW numbered bills

- 14 NEW requested bills

Total Bill Count

- House 392

- Senate 174

- House Concurrent Resolutions (HCR) 21

- House Joint Resolution (HJR) 21

- House Resolutions (HR) 3

- Senate Concurrent Resolutions (SCR) 7

- Senate Joint Resolutions (SJR) 12

- Senate Resolutions (SR) 1

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