A group of Massachusetts citizens have filed an active bill in the state legislature which would impose fines and penalties on state and federal officials who enforce Sections 1021 and 1022 of the National Defense Authorization Act of 2012 within MA.
The citizens are a local chapter of the national organization People Against the NDAA.
Sections 1021 and 1022 of the Act, commonly referred to as NDAA, allow the US military to arrest and hold in secret military detention any citizen of the United States, without charge or trial, indefinitely.
The proposed law goes a step further than other states which have passed anti-NDAA legislation, often referred to as "NDAA nullification," which usually direct state law enforcement and other officials not to cooperate with federal authorities acting under the law. Critics of the NDAA contend that the law is clearly illegal under the Supreme Court precedent in Marbury vs. Madison, in which Chief Justice John Marshall, in 1803, held that any law "repugnant" to the U.S. Constitution is "void."
Chief Justice Marshall wrote:
a law repugnant to the constitution is void, and...courts, as well as other departments, are bound by that instrument.
The Massachusetts bill, H1428, now in the Judiciary Committee, states that:
1. Any public officer, employee, or agent of the Commonwealth of Massachusetts, or any employee of a corporation providing services to the Commonwealth of Massachusetts that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of Section 4 of this act shall be guilty of a class A misdemeanor punishable by imprisonment for not more than six (6) months or by a fine not exceeding Five Hundred Dollars ($500.00) or both such fine and imprisonment;
2. Any official, agent, or employee of the government of the United States, or employee of a corporation providing services to the government of the United States that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of Section 4 of this act shall be guilty of a class B felony punishable by imprisonment for not more than one (1) year, or a fine of not more than Two Thousand Dollars ($2,000.00), or by both such fine and imprisonment.
The pertinent section of Section 4 reads:
1. The Commonwealth of Massachusetts shall not provide material support or participate in any way with the implementation of Sections 1021 and 1022 of the National Defense Authorization Act of 2012 within the boundaries of this state;
Massachusetts joins a growing number of states in which citizens have passed or are battling to pass anti-NDAA legislation, including Arizona, Colorado, Georgia, Kansas, Michigan, Missouri, Nevada, New Hampshire, Oklahoma, Texas, Washington state, Indiana, and South Carolina..
It was in Massachusetts that a group of former and present military and law enforcement officers founded the organization Oath Keepers, who reaffirm their oath to uphold and defend the United States Constitution from "all enemies, both foreign and domestic." The ceremony took place on the Lexington Green, near where, in 1775, American colonials fired "the shot heard around the world" which sparked the American Revolution.
One of the colonials' grievances was that they had no right to a trial by a jury of their peers if accused of a crime. Any colonial could be imprisoned on the king's orders, indefinitely. The right to a jury trial is now part of the Constitution, notwithstanding the NDAA, signed into law by Obama on New Years Eve of 2011.
In the famous decision MARBURY v. MADISON, 5 U.S. 137 (1803), 5 U.S. 137 (Cranch), Chief Justice Marshall wrote in 1803:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
The word "repugnant" indicates incompatibility, in contradiction, or in direct conflict with the plain language of the Constitution, and not merely matters subject to interpretation. In MARBURY Chief Justice Marshall ruled that the Judiciary Act of 1789 violated Article III of the U.S. Constitution.
Massachusetts also recently found itself in the news on constitutional issues when last week, the small town of Westford soundly squashed a proposed gun ban ordinance. The ordinance would have banned any weapon which accepted a magazine and imposed penalties on those failing to sell or dispose of their weapon, or surrender it to the police chief.
Steward Rhodes, Yale Law School, founder of Oath Keepers, speaking before a law enforcement audience on NDAA