The Deadly Poison of Nullification
How the Selective Application of Justice Is Destroying the Republic and Why the Reckoning Will Be Severe
By Paul Grant Truesdell, JD, AIF1
What We Are Witnessing Is Nullification and It Will Not End Well: A Warning From History
There is a principle in American jurisprudence that most citizens never learn about in school, and for good reason. It is called jury nullification, and it occurs when jurors refuse to convict a defendant not because the evidence is insufficient, but because they disagree with the law itself or believe the prosecution is unjust. It is not written into statute. It is not encouraged by judges. But it exists, and it has been used throughout American history for purposes both noble and shameful.
What we are witnessing in Minneapolis, in Portland, in Los Angeles, and in courtrooms across this nation is something adjacent to this principle but far more corrosive. We are seeing the selective application of justice based on political alignment. We are seeing prosecutors who decline to charge rioters while throwing the book at protesters on the other side. We are seeing juries that appear to render verdicts based not on evidence but on tribal loyalty. And we are seeing a significant portion of the American public cheering this on, apparently unaware that they are sawing off the branch they are sitting on.
Let me be direct about something. I am generally aligned with conservative principles. I supported President Trump. I believe in law and order, border security, limited government, and the rights enumerated in our Constitution. But what I am about to say is not partisan cheerleading. It is a warning, and it applies to everyone regardless of which cable news channel they prefer.
When you normalize the weaponization of the justice system against your political opponents, you are not winning. You are establishing a precedent. And precedents, once established, do not care about your intentions. They simply exist, waiting to be used by whoever holds power next.
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The Great Triumvirate and the Death of Serious Political Discourse
Before we examine the constitutional issues at stake, we need to understand something about the quality of political discourse in America and how far we have fallen from what we once were.
In the early nineteenth century, the United States Senate was home to three men whose debates on the floor of that chamber are still studied today as examples of the highest form of political argument. They were called the Great Triumvirate, sometimes the Immortal Trio: Daniel Webster of Massachusetts, Henry Clay of Kentucky, and John C. Calhoun of South Carolina. These men disagreed on almost everything. They were political rivals. They represented fundamentally different visions of what America should become. And yet they engaged each other with a level of intellectual rigor, rhetorical skill, and mutual respect that would be unrecognizable in today's political environment.
Daniel Webster was the great defender of the Union and the Constitution. His reply to Robert Hayne in 1830, in which he declared "Liberty and Union, now and forever, one and inseparable," is considered one of the greatest speeches in American history. Henry Clay was the Great Compromiser, the man who brokered the Missouri Compromise of 1820 and the Compromise of 1850, repeatedly stepping into the breach when sectional tensions threatened to tear the nation apart. John C. Calhoun was the brilliant theorist of states' rights and the most articulate defender of Southern interests, a man whose intellectual contributions to American political thought continue to be studied even as his defense of slavery is rightly condemned.
These were serious men having serious debates about serious issues. They read deeply. They argued carefully. They understood that their words would be scrutinized by posterity. They believed that ideas mattered and that the outcome of their debates would shape the future of the Republic.
Compare that to what passes for political discourse today. We have replaced the Lincoln-Douglas debates with Twitter feuds. We have replaced careful constitutional argument with sound bites and gotcha moments. We have politicians who cannot articulate the basic principles of their own positions, let alone engage thoughtfully with the positions of their opponents. We have a political class that treats governance as performance art rather than the serious business of managing a republic.
This matters because the issues we face today are no less consequential than the issues faced by the Great Triumvirate. The questions of federal power, states' rights, the limits of government authority, and the protection of minority interests are as urgent now as they were in 1830. But we are trying to answer those questions with a political class that would have been laughed out of any nineteenth century debating society.
3
John C. Calhoun: The Democrat Who Created Modern Nullification
To understand the danger of what is happening today, we need to understand who John C. Calhoun was and what he actually argued, because his ideas are being resurrected in forms that their modern advocates apparently do not recognize.
John Caldwell Calhoun was born in South Carolina in 1782 and died in Washington in 1850. He served as a member of the House of Representatives, Secretary of War under James Monroe, Vice President of the United States under both John Quincy Adams and Andrew Jackson, Secretary of State under John Tyler, and United States Senator from South Carolina. He was one of the most powerful and influential politicians of the nineteenth century.
Here is the first thing you need to understand about Calhoun: he was a Democrat. He was not a Republican. The Republican Party did not exist during most of his career. Calhoun was a member of the Democratic-Republican Party and then the Democratic Party. He briefly aligned with something called the Nullifier Party during the Nullification Crisis, but he returned to the Democratic fold and remained a Democrat until his death.
Here is the second thing you need to understand: Calhoun did not start out as a states' rights advocate. Early in his career, he was a nationalist. He supported a strong federal government. He supported protective tariffs. He supported internal improvements funded by the federal government. He was a war hawk who pushed for the War of 1812. As Secretary of War, he reorganized and modernized the War Department, expanding federal power in the process.
Calhoun's transformation from nationalist to states' rights champion happened in the late 1820s, and the reason for that transformation was slavery. Calhoun came to believe that the growing power of the federal government, and the growing influence of the Northern states in that government, posed an existential threat to the institution of slavery. He developed his theories of nullification and states' rights specifically to protect Southern slavery from federal interference.
This is important because it reveals the fundamental dishonesty at the heart of nullification doctrine. Calhoun did not arrive at his constitutional theories through neutral legal reasoning. He arrived at them because he needed a constitutional justification for protecting slavery. The theory was crafted to serve the interest, not the other way around.
Here is the third thing you need to understand: Calhoun was an explicit and unapologetic defender of slavery. He did not argue, as some of his contemporaries did, that slavery was a necessary evil that would eventually fade away. He argued that slavery was, in his exact words, a positive good that benefited both slaves and enslavers. He owned dozens of slaves at his plantation, Fort Hill, in South Carolina. He dedicated the latter part of his career to expanding and defending the institution of slavery.
When people invoke nullification today, whether they know it or not, they are invoking a doctrine created by a pro-slavery Democrat to protect the slave states from federal oversight. That should give everyone pause, regardless of their political views.
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The Nullification Crisis and What Andrew Jackson Understood
The Nullification Crisis of 1832-1833 was the first serious test of whether the Union could survive fundamental disagreements about federal power. Understanding what happened, and how it was resolved, is essential to understanding why what is happening today is so dangerous.
The crisis began with tariffs. The Tariff of 1828, known in the South as the Tariff of Abominations, imposed high duties on imported manufactured goods. Northern manufacturers loved it because it protected them from foreign competition. Southern planters hated it because they depended on selling their cotton on the world market and buying manufactured goods from abroad. The tariff raised the prices they paid for goods while doing nothing to help the prices they received for their crops.
Calhoun, who was Vice President at the time, secretly authored a document called the South Carolina Exposition and Protest, which argued that the tariff was unconstitutional and that states had the right to nullify unconstitutional federal laws. When a slightly modified tariff passed in 1832 and failed to provide relief, South Carolina decided to put Calhoun's theory to the test.
In November 1832, a South Carolina convention adopted the Ordinance of Nullification. This ordinance declared the tariffs of 1828 and 1832 to be null, void, and no law, nor binding upon this State, its officers or citizens. The ordinance forbade the collection of tariff duties within South Carolina. It required state officials to take an oath to support the ordinance. And it threatened that South Carolina would secede from the Union if the federal government attempted to enforce the tariffs by force.
Calhoun resigned the Vice Presidency to enter the Senate, where he could argue the case for nullification on the floor. He believed that other Southern states would join South Carolina in resisting federal authority.
He was wrong.
President Andrew Jackson, himself a Southerner, a slaveholder, and a champion of states' rights, responded to South Carolina's nullification ordinance with absolute fury. On December 10, 1832, Jackson issued his Proclamation to the People of South Carolina, in which he systematically demolished the constitutional arguments for nullification and made clear that he would use military force to collect the tariffs if necessary.
Jackson's words deserve to be quoted at length because they apply directly to what is happening today: I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.
Then Jackson made the statement that should chill anyone contemplating nullification: Disunion by armed force is TREASON.
Jackson was not bluffing. He asked Congress to pass what became known as the Force Bill, authorizing him to use military force to collect the tariffs in South Carolina. Congress passed the bill. Jackson prepared to send troops.
Henry Clay, the Great Compromiser, stepped in to broker a deal. He engineered a compromise tariff that would gradually reduce rates over the next decade. South Carolina accepted the compromise and rescinded the Ordinance of Nullification. But in a final act of defiance, the South Carolina convention nullified the Force Bill, a symbolic gesture that fooled no one.
The crisis was over, but the underlying tensions remained. Thirty years later, eleven Southern states would attempt something more drastic than nullification. They would attempt secession. And the constitutional question of whether states could defy federal authority would be settled not by debate but by four years of civil war that killed more than 600,000 Americans.
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What Conservative Constitutional Scholars Actually Say
Here is where intellectual honesty becomes important, and where some of my fellow conservatives may not want to hear what I have to say.
The mainstream of conservative constitutional scholarship has consistently rejected nullification as a valid constitutional doctrine. The Heritage Foundation, hardly a bastion of liberal thought, has published extensive analysis demonstrating that Madison emphatically rejected the attempt by a single state to nullify national laws. James Madison, who along with Jefferson authored the Virginia and Kentucky Resolutions that nullification advocates cite as their founding documents, spent the last years of his life denouncing the South Carolina version of nullification as unconstitutional.
In his Notes on Nullification, published in 1834, Madison wrote that the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison. He called nullification a plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.
Mark Levin, one of the most influential conservative voices in America and the author of The Liberty Amendments, has called nullification proponents kooks and has repeatedly cited Madison's letters from the 1830s in which Madison explicitly stated he never supported nullification and had been misrepresented over the years. The Cato Institute, Americans for Limited Government, the Convention of States movement, and virtually every mainstream conservative constitutional organization has rejected nullification as unconstitutional.
John Eastman, the conservative constitutional scholar, has been quoted observing that if you believe in nullification, you do not believe in the Constitution. This formulation reflects the consensus of mainstream legal thought, even in conservative circles.
Now, there are libertarian voices like Tom Woods who dispute this interpretation, and there are organizations like the Tenth Amendment Center that advocate for nullification as a legitimate tool. This is an intellectually honest disagreement within the conservative and libertarian movements. But the weight of conservative constitutional scholarship falls squarely against nullification as a legal doctrine.
Why does this matter? Because if conservatives believe that nullification is unconstitutional when it comes to federal law, then we must also believe that jury nullification based on political loyalty is a corruption of justice rather than a legitimate exercise of civic power. And we must believe that the systematic refusal of certain jurisdictions to enforce laws against certain defendants is a breakdown of the rule of law that invites federal intervention.
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The Power of Judges That Nobody Discusses
Here is something that the advocates of politicized jury verdicts apparently do not understand, or perhaps they understand and simply hope you do not.
In nearly every jurisdiction in America, a judge has the power to override a jury verdict through a mechanism called judgment notwithstanding the verdict, or JNOV. In federal courts this is now called judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. This procedure allows a judge to set aside a jury verdict when the judge determines that no reasonable jury could have reached that verdict based on the evidence presented.
Let me explain what this means in practical terms. If a jury in a politically charged case returns a verdict that is clearly at odds with the evidence, the judge can throw it out. If a defendant is convicted despite the prosecution presenting insufficient evidence, the judge can enter a judgment of acquittal. If a civil defendant is found liable despite clear evidence to the contrary, the judge can reverse the verdict and rule in favor of the defendant.
The standard is whether any reasonable jury could have reached the verdict based on the evidence. If the answer is no, the judge can intervene.
Now here is the asymmetry that should concern everyone. A judge cannot overturn an acquittal and enter a guilty verdict in a criminal case. That would violate the Fifth Amendment's protection against double jeopardy and the Sixth Amendment's guarantee of trial by jury. So when a jury engages in nullification to acquit someone who clearly committed a crime, that verdict stands and cannot be appealed. But when a jury convicts someone improperly, the conviction can be overturned on appeal or by the trial judge.
This asymmetry has historically protected defendants from government overreach, and that is a good thing. The founders understood that it is better for ten guilty men to go free than for one innocent man to be convicted. But this protection was designed to shield individuals from an overreaching government, not to allow political factions to weaponize the jury system against their opponents while immunizing their allies from consequence.
Now think about who controls the judiciary in these left-wing cities where selective prosecution and politicized verdicts have become routine. Think about who appoints these judges. Think about what happens when the entire system, from prosecutor to jury to judge, is ideologically aligned.
You begin to see why this is not just a problem. It is a systemic breakdown of the rule of law.
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Heart of Atlanta Motel and the Commerce Clause Revolution
Now let me connect these constitutional principles to something that should concern every American who cares about equal treatment under law, and let me explain why the precedent set in 1964 opens doors that nobody seems to have walked through.
In 1964, the Supreme Court decided Heart of Atlanta Motel, Inc. v. United States. This case was a direct challenge to the Civil Rights Act of 1964, which prohibited discrimination in places of public accommodation. The owner of the Heart of Atlanta Motel, a man named Moreton Rolleston, refused to rent rooms to Black customers. When Congress passed the Civil Rights Act, Rolleston sued, arguing that Congress had exceeded its constitutional authority.
Rolleston's argument was simple. The Constitution does not give Congress the power to regulate private businesses. The Fourteenth Amendment prohibits states from denying equal protection, but it does not apply to private actors. Therefore, Congress could not force a private motel owner to serve customers he did not wish to serve.
The Supreme Court ruled against Rolleston, unanimously, nine to zero. But the Court did not rely on the Fourteenth Amendment. Instead, it relied on the Commerce Clause.
Here is what the Court found. The Heart of Atlanta Motel was located near Interstates 75 and 85 in downtown Atlanta. Approximately seventy-five percent of its customers came from out of state. Because the motel served interstate travelers, it affected interstate commerce. And because it affected interstate commerce, Congress had the authority under Article I, Section 8 of the Constitution to regulate it.
The Court's reasoning was sweeping. Congress has the power to regulate activities that substantially affect interstate commerce. Discrimination in public accommodations substantially affects interstate commerce because it burdens the flow of people and goods across state lines. Therefore, Congress can prohibit discrimination in public accommodations.
The Court explicitly held that places of public accommodation had no right to select guests as they saw fit, free from governmental regulation when their operations affected interstate commerce.
This case has been cited in nearly seven hundred subsequent court decisions. It stands as one of the foundational precedents of modern Commerce Clause jurisprudence. And its implications extend far beyond race discrimination.
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The Door That Nobody Has Walked Through
Here is where I want you to think carefully, because what I am about to say should have been said long ago, and I do not understand why it has not been.
The Civil Rights Act of 1964, as interpreted by the Supreme Court in Heart of Atlanta Motel, prohibits discrimination in public accommodations on the basis of race, religion, or national origin. The reasoning was that such discrimination burdens interstate commerce and therefore falls within Congress's regulatory authority.
Now consider this question: Does discrimination on the basis of political viewpoint burden interstate commerce any less than discrimination on the basis of race?
If a motel refuses to serve Black travelers, that burdens interstate commerce because those travelers cannot freely move across state lines to conduct business, visit family, or engage in the countless activities that constitute commercial life in America.
If a social media platform refuses to serve conservative users, does that not burden interstate commerce? These platforms are the modern public square. They are where political speech happens. They are where businesses advertise, where ideas are exchanged, where commerce is conducted. When a platform with billions of users systematically suppresses one political viewpoint, it is doing exactly what the Heart of Atlanta Motel was doing: discriminating against a class of people in a way that burdens their ability to participate in interstate commerce.
The same analysis applies to payment processors that refuse to serve conservative organizations. It applies to banks that close accounts based on political viewpoint. It applies to web hosting services that deplatform conservative websites. It applies to every business that participates in interstate commerce and makes decisions about whom to serve based on political affiliation.
The Commerce Clause rationale of Heart of Atlanta Motel is not limited to race. The Court's reasoning was about the burden on interstate commerce, not about the particular characteristic being discriminated against. If Congress can prohibit discrimination based on race because it burdens commerce, Congress can prohibit discrimination based on political viewpoint for exactly the same reason.
This is not a radical extension of existing law. It is a straightforward application of the reasoning the Supreme Court has already endorsed.
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The IRS Targeting Scandal and Lois Lerner
Let me give you a concrete example of political discrimination that used the machinery of the federal government itself, because this demonstrates that the threat of viewpoint discrimination is not hypothetical.
Lois Lerner was the Director of the Exempt Organizations Unit of the Internal Revenue Service. In that role, she oversaw the processing of applications from organizations seeking tax-exempt status under Section 501(c) of the Internal Revenue Code. These are the designations that allow nonprofit organizations to operate without paying federal income tax and, in some cases, to receive tax-deductible contributions.
Between 2010 and 2012, the IRS under Lerner's direction systematically targeted conservative organizations for enhanced scrutiny, delays, and burdensome information requests. Organizations with names containing words like Tea Party, Patriots, or 9/12 were flagged for special treatment. They were asked to provide donor lists, membership rosters, copies of social media posts, and information about the political activities of their members and supporters.
The delays were extraordinary. Some organizations waited years for a decision on their applications. Some were asked questions that were clearly designed to be unanswerable or to discourage them from continuing the application process. Some simply gave up.
Meanwhile, organizations associated with progressive causes sailed through the application process with minimal scrutiny.
When this scandal came to light, Lerner was called to testify before Congress. She invoked her Fifth Amendment right against self-incrimination and refused to answer questions. She was held in contempt of Congress. The Department of Justice, under Attorney General Eric Holder, declined to prosecute.
No one went to jail. No one was held accountable. The message was clear: if you use the power of the federal government to persecute your political opponents, you will face no consequences.
Think about what this means in terms of the Commerce Clause analysis I described earlier. The IRS is a federal agency. Its actions directly affect interstate commerce because tax-exempt status is essential to the operation of nonprofit organizations that operate across state lines. When the IRS discriminates against organizations based on political viewpoint, it is burdening interstate commerce in exactly the way that Heart of Atlanta Motel said the federal government has the power to regulate.
The difference is that in the IRS case, the federal government was the discriminator rather than the regulator. The agency that should have been neutral was weaponized against one political faction.
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Social Media Censorship and the Modern Public Square
The same pattern of political discrimination has played out in the private sector, particularly in social media.
Jack Dorsey was the CEO of Twitter, now known as X, during the period when that platform systematically suppressed conservative voices. The Twitter Files, released after Elon Musk acquired the company, documented extensive coordination between Twitter employees and government agencies to censor content that the government disfavored. Conservative accounts were shadow-banned, meaning their content was suppressed without notification. Conservative voices were suspended or permanently banned for violations of terms of service that were selectively enforced against one political viewpoint.
Mark Zuckerberg's Facebook engaged in similar practices. The company admitted to suppressing the Hunter Biden laptop story in the weeks before the 2020 election, a decision that may have affected the outcome of that election. Facebook's fact-checkers, who were supposed to be neutral arbiters of truth, were overwhelmingly drawn from left-leaning organizations and consistently ruled against conservative content.
These are not small businesses. Twitter had hundreds of millions of users. Facebook has billions. They are the dominant platforms for political speech in the modern era. When they discriminate based on political viewpoint, they are doing exactly what the Heart of Atlanta Motel did when it refused to serve Black customers: they are excluding a class of people from participation in the commercial and civic life of the nation.
The Commerce Clause gives Congress the power to regulate this. The precedent is already established. The only thing missing is the political will to apply it.
I have been saying this for years, and I will say it again now: there is no principled reason why the Commerce Clause analysis that prohibits race discrimination in public accommodations should not also prohibit political discrimination in public accommodations. The burden on commerce is the same. The exclusion from civic life is the same. The harm to the people being discriminated against is the same.
If the Democratic Party, in conjunction with social media companies, can ban conservatives from the modern public square, they are engaging in precisely the kind of discrimination that Heart of Atlanta Motel said Congress has the power to prohibit.
Why has no one walked through this door? I do not know. Perhaps no one has thought of it. Perhaps the conservative legal movement has been too focused on other issues. Perhaps there is a belief that the courts would not accept this argument. But the argument is there, it is grounded in existing precedent, and it is time someone made it.
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Federal Highways and the Commerce Clause
Let me connect this Commerce Clause analysis to something happening right now on the streets of America, because this demonstrates how the constitutional tools already exist to address the breakdown of law enforcement in certain jurisdictions.
When protesters block interstate highways, they are not just inconveniencing commuters. They are directly burdening interstate commerce. Every truck that cannot deliver its goods, every traveler who cannot reach their destination, every ambulance that cannot get to a hospital represents a concrete harm to the flow of commerce across state lines.
The Commerce Clause reasoning of Heart of Atlanta Motel applies with even greater force to highway blockades. Every federal highway in America receives federal funding. Every interstate carries goods and people across state lines. The construction, maintenance, and operation of these highways is funded by federal gasoline taxes specifically because highways are essential to interstate commerce.
The Supreme Court has repeatedly held that Congress can regulate activities that substantially affect interstate commerce. Can anyone seriously argue that blocking an interstate highway does not substantially affect interstate commerce?
Senators have introduced legislation to make blocking federal highways a federal crime. The Safe Passage on Interstates Act would criminalize the intentional obstruction of interstate highways, with penalties of up to five years in federal prison. The constitutional authority for this legislation is exactly the same Commerce Clause authority that supported the Civil Rights Act of 1964.
But here is the critical point: if states and cities refuse to enforce laws against highway blockades, if local prosecutors decline to bring charges, if local juries engage in nullification to acquit obvious lawbreakers, the federal government has the constitutional authority to step in.
Federal prosecutors can bring charges in federal court. Federal juries are drawn from the entire district, not just the city where the offense occurred. Federal judges are appointed for life and are not subject to local political pressure.
What is happening in Minneapolis and Portland and Los Angeles is not just a local problem. It is an invitation for federal intervention. When states collapse in their duties to maintain public order and enforce the law equally, they create the conditions for the federal government to assert authority.
This is the door that the nullifiers are opening, and they do not seem to understand what is on the other side.
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The Warning From History
Let me return to the fundamental warning that I want everyone, left and right, to understand.
Every time in American history that nullification has been attempted, it has failed. It failed in 1798 when the other states rejected Jefferson's resolutions. It failed in 1832 when Andrew Jackson threatened to hang the nullifiers as traitors and Congress passed the Force Bill. It failed in 1957 when President Eisenhower sent the 101st Airborne Division to Little Rock, Arkansas, to enforce federal desegregation orders over the objection of the state government.
The Supreme Court's unanimous decision in Cooper v. Aaron in 1958 stated unequivocally that the interpretation of the Constitution by the Supreme Court is the supreme law of the land, and that no state official can defy federal constitutional interpretations based on a claim of nullification.
John C. Calhoun, the brilliant theorist of nullification, died in 1850 still believing that his doctrine could preserve the Union while protecting Southern interests. He was wrong. Eleven years after his death, the Southern states attempted something more drastic than nullification. They attempted secession. And four years of civil war settled the constitutional question in a way that no amount of theoretical argument ever could.
The pattern here should be instructive. Nullification, whether practiced by states against federal authority or by juries against defendants they despise for tribal reasons, has never produced lasting victory for those who employed it. It has produced conflict, resentment, and eventually the kind of reckoning that makes everyone worse off.
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When You Push Too Far
Here is where the warning becomes specific, and I want those on the political left to pay particular attention.
You may believe that the current arrangement benefits your side. You may celebrate when charges are dropped against people who burned buildings and assaulted police officers during the summer of 2020. You may feel satisfaction when a defendant you oppose is convicted on charges that seem, to many observers, to be stretched beyond recognition. You may think that this is justice, finally being applied to those who deserve it.
But you are not building a system. You are breaking one.
The legitimacy of any justice system depends on the perception that it applies equally to everyone. When that perception erodes, when half the country believes that the courtroom has become just another arena for political combat, you do not get compliance. You get resistance. And if that resistance grows large enough and angry enough, you get something far worse.
Let me put this in terms that should concern anyone who has studied history or human nature. The political right in this country has, by and large, been the faction most committed to working within established systems. Conservatives tend to respect institutions, follow procedures, and defer to legal processes even when those processes produce results they dislike. This is not weakness. It is the recognition that civilization depends on shared rules and mutual restraint.
But that restraint is not infinite. It is conditional on the belief that the rules are being applied fairly. When that belief disappears, when conservatives conclude that the system has been captured by their opponents and turned into a weapon, the incentive to play by the rules disappears with it.
And here is the uncomfortable truth that no one on the left seems willing to confront. If this conflict escalates beyond words and lawsuits and protests into something more primal, the political left will not win. This is not a boast or a threat. It is a demographic and cultural observation. The people who grow the food, transport the goods, maintain the infrastructure, and serve in the military and law enforcement are not, by and large, parsing arguments about intersectionality and systemic oppression. They are working people who have been patient for a very long time, and that patience is not inexhaustible.
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Constitutional Framework for What Comes Next
Let me be specific about what this could look like, because I do not want anyone to think I am speaking in vague abstractions.
The Commerce Clause that was used in Heart of Atlanta Motel to require a private business to serve all customers regardless of race can be used in multiple ways that the current nullifiers have not anticipated.
It can be used to prosecute anyone who blocks an interstate highway. The federal government does not need the cooperation of state or local authorities to bring these prosecutions. Federal marshals can make arrests. Federal prosecutors can bring charges. Federal judges can impose sentences.
It can be used to regulate social media platforms that discriminate based on political viewpoint. The reasoning is identical to Heart of Atlanta: these platforms affect interstate commerce, and discrimination in their services burdens that commerce.
It can be used to ensure that federal agencies like the IRS apply the law neutrally regardless of the political views of the organizations they regulate.
If a pattern of jury nullification develops in federal courts, Congress has the constitutional authority to expand the federal judiciary, to change the composition of jury pools, and to increase penalties for obstruction of justice. The same Supremacy Clause that establishes federal law as the supreme law of the land gives Congress broad authority to ensure that federal law is actually enforced.
And here is the precedent that should terrify anyone who has been cheering the current state of affairs. If a future administration decides that the rule of law has broken down in certain jurisdictions, if it concludes that local authorities are engaged in a systematic pattern of nullification, it has historical precedent for dramatic action.
President Jackson threatened to hang nullifiers and prepared to send troops to South Carolina. President Eisenhower sent the Army to enforce federal court orders in Arkansas. President Kennedy federalized the National Guard to integrate the University of Alabama. When the federal government decides that nullification has gone too far, it has the tools to respond, and it has used those tools before.
The people who are celebrating the current breakdown of equal justice under law should ask themselves a simple question. What happens when the other side has the presidency, the Congress, and the federal courts? What happens when the precedents you established are used against you?
The answer is that you will have no constitutional ground to stand on. You will have spent decades arguing that nullification is legitimate, that selective enforcement is acceptable, that juries can disregard the law when they disagree with it, that social media companies can exclude people based on political viewpoint, that federal agencies can target organizations for their political beliefs. And when your opponents use those same arguments against you, you will discover that precedents cut both ways.
15
What Should Be Done
The wise move, for everyone, is to step back from this precipice. The wise move is to insist that laws be applied equally regardless of the defendant's politics. The wise move is to prosecute rioters whether they wear MAGA hats or black bloc gear. The wise move is to demand that juries evaluate evidence rather than register political preferences. The wise move is to apply the Commerce Clause consistently to prohibit discrimination based on political viewpoint just as we prohibit discrimination based on race. The wise move is to rebuild the legitimacy of institutions rather than celebrating their corruption when it serves your immediate interests.
I am not advocating for any kind of escalation. I am advocating for the opposite. I am saying that the current trajectory leads somewhere that no reasonable person should want to go. The people cheering the loudest for politically motivated prosecutions and selective enforcement seem to believe they are protected by some kind of historical immunity, as if the forces they are unleashing can be controlled indefinitely.
History suggests otherwise.
James Madison himself, the father of the Constitution, wrote that nullification would be a deadly poison to the Republic. Andrew Jackson called it treason. Abraham Lincoln fought a war to defeat it. John C. Calhoun, the most brilliant advocate nullification ever had, died eleven years before the Civil War proved that his doctrine could not preserve the Union.
We do not have a Daniel Webster or a Henry Clay or even a John C. Calhoun in our political discourse today. We do not have the serious men and women having serious debates about serious issues that characterized the age of the Great Triumvirate. But we face issues no less consequential than those they faced. And we would do well to learn from their example, both their achievements and their failures.
If we value the Republic that our founders created, if we want to preserve the rule of law for our children and grandchildren, we must reject nullification in all its forms. That includes state nullification of federal law. That includes jury nullification based on political loyalty. That includes the selective enforcement of laws based on the ideology of the defendant. That includes viewpoint discrimination by social media platforms and other businesses that affect interstate commerce.
Either the law applies to everyone, or it protects no one.
Addendum:
The Impeachment Power That Congress Refuses to Use
There is a constitutional tool sitting in plain sight that the Republican Party refuses to pick up. It is the power of impeachment, and it applies not just to presidents but to every federal officer who holds their position during good behavior or who exercises significant authority under the laws of the United States.
Article II, Section 4 of the Constitution states that the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. The phrase all civil Officers is not limited to elected officials. It includes federal judges. It includes cabinet secretaries. It includes agency heads. It includes any federal employee who exercises significant governmental authority.
Any member of the House of Representatives can introduce articles of impeachment. It does not require committee approval. It does not require leadership permission. A single member can stand on the floor of the House, introduce articles of impeachment, and force the matter onto the congressional agenda. The articles are then referred to the Judiciary Committee for consideration, but the introduction itself is the prerogative of any member.
This power has been used against federal judges throughout American history, and it has resulted in removal from office.
In 1804, Judge John Pickering of the District of New Hampshire was impeached by the House and convicted by the Senate for mental instability and intoxication on the bench. He was removed from office. This establishes the precedent that incapacity, not just criminal conduct, can be grounds for impeachment.
In 1986, Judge Harry Claiborne of the District of Nevada was impeached, convicted, and removed from office for tax evasion. He was the first federal judge removed from office in fifty years.
In 1989, Judge Alcee Hastings of the Southern District of Florida was impeached, convicted, and removed from office for bribery and perjury. He later ran for Congress and served in the House of Representatives, but that is a separate story about the judgment of voters.
In 1989, Judge Walter Nixon of the Southern District of Mississippi was impeached, convicted, and removed from office for perjury.
In 2010, Judge Thomas Porteous of the Eastern District of Louisiana was impeached, convicted, and removed from office for bribery and making false statements.
These cases establish beyond any doubt that federal judges can be impeached and removed for conduct that undermines their fitness for office. The standard is not limited to criminal convictions. It includes conduct that demonstrates unfitness to serve.
So why are there not articles of impeachment pending against every federal judge who has issued rulings that defy the plain text of the Constitution and the clear intent of Congress? Why are there not articles of impeachment against agency heads who have weaponized their offices against political opponents? Why did Lois Lerner retire with a full pension instead of facing impeachment proceedings for her systematic targeting of conservative organizations?
The answer is that Republican members of Congress lack the intestinal fortitude to use the tools the Constitution provides.
Every single day, I check the Congressional Record. Every single day, I look for evidence that some Republican member of the House has introduced articles of impeachment against the rogue judges and out-of-control bureaucrats who are systematically undermining the rule of law. And every single day, I am disappointed.
I roll my eyes. I purse my lips. I shake my head. And I ask myself: does anyone in the Republican Party have the courage to do what the Constitution empowers them to do?
The Democratic Party understood this power when they impeached President Trump twice, once while he was in office and once after he had already left. They understood that impeachment is a political tool as much as a legal one, that the process itself sends a message regardless of whether conviction follows. They were willing to use the power.
Republicans are not. And that failure of nerve is one of the reasons we find ourselves in the current situation.
The Hypocrisy on Display
Let me add one more observation about the selective outrage that characterizes our current political moment, because it illustrates the fundamental dishonesty of those who claim to be defending democratic norms.
When Ronald Reagan was in his second term, the Democratic Party and their allies in the media expressed constant concern about his age and mental acuity. Every slip of the tongue, every momentary confusion, every sign of fatigue was treated as evidence that Reagan was no longer fit for office. The drumbeat was relentless.
Yet when Joe Biden displayed obvious signs of cognitive decline, when he could not complete sentences, when he wandered off stages, when he shook hands with people who were not there, when he had to be guided by his wife and staff through the most basic public appearances, those same voices said nothing. The media that had scrutinized Reagan's every word suddenly discovered that asking questions about a president's mental fitness was somehow inappropriate.
This is not about age. This is about political alignment. The standard is not whether someone is fit for office. The standard is whether they serve the correct political interests.
The same hypocrisy applies to immigration.
Thanks to social media and digital archives, we now have video evidence of virtually every prominent Democrat calling for controls on illegal immigration. We have Bill Clinton in the 1990s sounding like a border hawk. We have Barack Obama talking about the need to enforce immigration laws. We have Chuck Schumer and Nancy Pelosi and Joe Biden himself, all on record supporting border security and opposing illegal immigration.
What changed?
The unions changed. For decades, the Democratic Party could count on union members as a reliable voting bloc. Union households voted Democratic because the Democratic Party supported union interests. But as union membership declined, as manufacturing moved overseas, as the private sector union movement withered, the Democratic Party needed a new constituency.
They found it in illegal immigrants.
The shift was not subtle. The same politicians who had talked tough on immigration suddenly discovered that enforcement was cruel and that borders were racist. The same party that had supported deportation suddenly supported sanctuary cities. The same leaders who had voted for border fencing suddenly opposed a border wall.
Union members should understand what happened to them. They were thrown into the fire so the Democratic Party could court a new voting bloc. The party that claimed to represent working Americans abandoned those workers the moment it became politically convenient to do so. Every union member who watches their wages stagnate because of competition from illegal labor, every construction worker who loses a job to someone who will work for less, every tradesman who sees their profession devalued by an endless supply of cheap labor should understand that the Democratic Party made a calculated decision to sacrifice their interests for votes.
This is the context in which the current breakdown of law enforcement must be understood. The refusal to enforce immigration law, the refusal to prosecute rioters, the refusal to hold federal officials accountable for political targeting, these are not accidents. They are policy choices made by people who have decided that the law applies only to their opponents.
And still, Republican members of Congress will not introduce articles of impeachment.
They have the power. They have the precedent. They have the constitutional authority. What they lack is the will.
Every day that passes without articles of impeachment being introduced against judges who defy the Constitution, against bureaucrats who weaponize their agencies, against officials who refuse to enforce the law, is a day that the Republican Party fails to use the tools the founders gave them.
I do not know what it will take to change this. I do not know how many more abuses must occur before someone in the Republican caucus decides to act. But I know that the power exists, that it has been used before, and that the failure to use it now is a choice.
It is a choice that history will judge harshly.
A Final Word of Caution
Be careful what you wish for, because you might just get it.
The people pushing this country toward the brink seem to operate under the delusion that they would prevail if the social contract finally snaps. They imagine themselves as revolutionaries, as agents of change, as the vanguard of some new order. They could not be more mistaken.
Let me paint a picture for those who have apparently never ventured beyond their urban enclaves. Out there in the vast heartland of this nation, there are women who can deliver a baby, dress a wound, put dinner on the table, balance a checkbook, raise children who know right from wrong, and if necessary, defend their homes and families with a steady hand and a clear eye. These are women who know the difference between a man and a woman because they live in the real world where such distinctions matter, where biology is not a social construct and where the hard work of civilization actually gets done. A traditional Southern gal who grew up learning to cook, clean, nurture, and survive is worth a hundred of the screeching, historically illiterate, perpetually outraged activists who think that blocking traffic constitutes meaningful political action.
And as for the pseudo-men who have attached themselves to this movement, the ones who cannot change a tire or start a fire or do anything useful with their hands, the ones who think masculinity is toxic and strength is oppression, let me be direct: you have no earthly idea what hell awaits if you keep pushing this envelope. You have mistaken the patience of decent people for weakness. You have confused tolerance with surrender. You have interpreted restraint as inability.
You are wrong.
The people you are antagonizing are the ones who grow your food, transport your goods, keep your lights on, and maintain the infrastructure that makes your comfortable lives possible. They are the ones who know how to build things and fix things and make things work. They are the ones who serve in the military and law enforcement and fire departments. They are the ones who have been taught, from childhood, that there are things worth fighting for and that freedom is not free.
When the lemmings followed the Pied Piper, they did not know they were marching toward a cliff. They heard a pleasant tune and followed it to their destruction. The tune being played today, the siren song of nullification and selective justice and rule by mob, leads to the same destination. The people playing that tune will not be the ones who suffer most when the music stops. It will be the ordinary people, on both sides, who pay the price for the arrogance of those who thought they could tear down a civilization without consequences.
So here is my final warning, delivered not in anger but in genuine concern for what this country might become. Step back from the cliff. Restore the rule of law. Apply justice equally. Rebuild the institutions you have spent decades corrupting. Do it not because you fear the consequences of failure, though you should, but because it is the right thing to do.
Because if you do not, if you continue down this path, you will eventually encounter Americans who have decided they have nothing left to lose. And on that day, you will discover that the skills required to survive and prevail in a world without functioning institutions are not the skills taught in gender studies seminars. They are the skills passed down through generations of people who worked the land, built the towns, fought the wars, and never forgot that civilization is a fragile thing that must be defended by those willing to do hard things.
The choice is yours. Choose wisely. Because you only get to make it once.