Sanctuary cities are examples of citizens nullifying laws they deem objectionable. Our history reveals myriad examples as far back as the Salem witch trials in 1692 which ended for one reason only, i.e. jury nullification. There were 52 consecutive acquittals and/or hung juries before prosecutors quit bringing cases. Other notable instances of citizen jury nullification are fugitive slave laws, labor union strikes, prohibition, Vietnam protesters and sodomy laws. Jury nullification is traceable to English common law, Magna Carta, the American Constitution and the Bill of Rights.
Last year an Oregon jury delivered a devastating nullification to the DOJ in the Bundy case. During the protesters’ occupation, federal agents descended on the nearby town of Burns and mounted license plate scanners on utility poles, flew drones overhead and monitored communications. Most startling was the revelation that paid government informants outnumbered defendants. After a prosecution costing taxpayers $100 million, the jury acquitted all defendants of every charge despite the evidence.
Citizen grand juries, traceable to 12th century England, are another form of nullification. Our founders intended citizen grand juries to be a fourth government branch as a buffer between citizens and government. In the 18th and 19th centuries any citizen could bring complaints directly to a grand jury which conducted its own investigation. Only recently have prosecutors taken over the grand jury system.
Yet another form of nullification is the longstanding theory that states have the right to nullify federal laws and acts of the federal government. This is traceable to Thomas Jefferson’s notion that individual states have a right (even a duty) to abrogate laws that are unconstitutional or usurp powers not granted to the federal government. Southern states threatened (but never actually invoked) such nullification during the pre civil war era. State nullification has oft been threatened but never implemented.
This brings us to the present controversy about sanctuary cities, which is nothing more than another form of citizen nullification whereby states, counties or cities refuse to enforce federal law. As with other forms of nullification, this form has a lengthy provenance – back to 1798 when Kentucky and Virginia refused to enforce the Alien and Sedition Acts within their boundaries. Of course, many northern states refused to enforce federal fugitive slave laws. Moreover, sanctuary cities are not the only nullification issues active today. Several states refuse to enforce federal drug laws and have enacted contrary laws. Likewise, many states decline to enforce federal gun laws.
The legal situation is fairly clear. The Supreme Court has ruled that the feds cannot compel state or local officials to spend money to enforce federal law. The Court also ruled that the feds may contemporaneously (but not retroactively) attach strings to money for states provided there is a rational nexus such as linking highway funds to lower speed limits. Therefore, the Trump Administration can withhold money from sanctuary cities only under future legislation that contains an appropriate nexus.
Citizen nullification has a rich history and tradition in America with many forms and antecedents. It provides an effective tool for local resistance to federal tyranny. Remember: there are two sides to the nullification coin. A federal government with the power to force sanctuary cities to enforce federal immigration law also has the power, inter alia, to force cities to make abortions and euthanasia available on demand, to dictate transgender restrooms and to impose the entire gamut of liberal phantasms.
Our next post scheduled for Sunday contains more Montana Moments