A recent article by Cato Institute chairman Robert Levy published by Investor’s Business Daily provides a ray of sunlight for supporters of nullification.
Instead of taking the position of most folks in mainstream political organizations and denouncing nullification in all situations, the CATO head offers support for the principles, at least some of the time.
Levy acknowledges that the federal government cannot force states to enforce or enact federal law.
Are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 1992 case, New York v. United States, the Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
But Levy stops short of approving nullification efforts that would actively block implementation of unconstitutional federal acts. He contends that an act remains constitutional until a federal court declares otherwise. He makes a solid argument from a lawyer’s perspective, but understanding nullification requires a historical perspective that often gets buried in American jurisprudence. Perhaps a slight shift in the theoretical framework will move CATO all the way into the nullification camp.
Like most lawyers, Levy believes that the Supreme Court makes the final and definitive decision on the constitutionality of an act. This makes perfect sense from a legal perspective. Lawyers rely on court precedent to build arguments, and modern American jurisprudence holds that the Court determined early on that it was the ultimate judge of constitutionality. But the argument falls apart when placed in the framework within which political power was delegated in the American system. In essence, the Court claimed power for itself that it never had the authority to claim in the first place. Furthermore, most legal scholars and attorneys badly misconstrue the case cited as the root of federal court supremacy.
We find the first fatal flaw in Levy’s argument early on when he confuses Jefferson and Madison’s reasoning in the Kentucky and Virginia Resolutions of 1798. Levy writes:
But consider those resolutions in context: Jefferson and Madison had argued that the states must have the final word because the Constitution had not expressly established an ultimate authority on constitutional matters.
Jefferson and Madison did not base their principles of nullification on the fact that the Constitution had not established an ultimate authority. They based their principles on the fact that the people of the states ARE the ultimate authority – not the federal government they created. Jefferson makes this clear in the first few lines of the Kentucky Resolution of 1798.
The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.
Madison makes the same point in his report of 1800.
The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.
Nullification follows from the delegation of power in the American system. The sovereign people first created independent, sovereign political societies – States – and delegated powers to their state governments. Then, the people, through those preexisting political societies, delegated specific, enumerated powers to a general government in order to form a union. The ratifiers made it clear that their states were only giving up sovereignty over those objects delegated to the federal government, and that they retained ALL powers not delegated. And they insisted on amendments (The Ninth and Tenth) to make this explicit.
If the federal government gets to decide the extent of its own power, through its own judicial branch, and the people of the states possess no mechanism to hold its creature in check, the whole notion of a federal government with limited enumerated powers becomes a farce.
Jefferson understood this.
Madison understood this.
And both advanced the principles of nullification because they recognized the absolute necessity for a check on federal power.
But Levy insists that the federal government itself decides the extent of his own power. Like most lawyers, he bases this notion on court precedent starting with Marbury v. Madison.
Four years later (after the drafting of the resolutions) in Marbury v. Madison, Chief Justice John Marshall resolved that oversight (of not establishing an ultimate authority). He wrote: ‘It is emphatically the province and duty of the judicial department to say what the law is.’ Since then, instead of 50 individual states effecting their own views regarding constitutionality, we have one Supreme Court establishing a uniform rule for the entire nation.
Levy, along with most lawyers and legal experts, rip one sentence out of context from Marshall’s opinion and find in it authority for the Supreme Court to stand as the exclusive and final judge on the extent of federal power. But even if you accept the bizarre notion that a political body can vest power in itself on its own whim, this was not Marshall’s intent.
One cannot pull a statement out of a specific court case, addressing a specific issue, and generalize it to encompass the entire American political system. A court rules for the parties in a case, not the United States as a whole. Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the Court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury’s commission. Some argued the court should just consider the law – the Judiciary Act itself – and not the Constitution. Marshall defended his decision to rule based on the Constitution.
The judicial power of the United States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
Clearly, the courts possess the authority to judge the constitutionality of an act. Nobody disputes that. But notice an important point: nowhere does Marshall assert that the Court stands as the SOLE or FINAL judge of constitutionality. In fact, he maintains that the Constitution also binds the Court itself.
The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
So, what happens if the Court slips free of the bonds of that instrument? Does no remedy exist for the people of the states? Can those who delegated powers to the federal government in the first place muster no defense? Must the sovereign bow down in submission to its creation? No. As Madison asserted, the parties that created the federal government and delegated all of its power MUST determine the extent of that power in the last resort.
Furthermore: dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.
Madison argued that we cannot raise judicial authority above the authority of the sovereign parties to the Constitution without also raising the other federal departments above it as well. This is basically the modern legal position: until the Supreme Court says otherwise ANY act of the federal government stands supreme. They rely totally on the Supreme Court to limit federal power. We find one of two assumptions implicit in this idea.
1. The Court will always remain bound by the instrument.
2. The Court has the authority to expand federal power beyond what the ratifiers delegated.
Both assumptions are demonstrably false.
Federal supremacists would have us believe that the people of the states created a federal government with limited, enumerated powers, insisted on an amendment making the limited nature of that government explicit and then left it to that government to decide the extent of its own power. In other words, we have to accept that the founders actually believed a government could exist as a self-limiting institution.
That idea is absurd.
Nullification, in all of its forms, naturally flows from the system the Constitution created. Without some way to hold federal power in check, we end up not with a limited government, possessing enumerated powers, but an indefinite one, subject to particular exceptions.
Nullification stands as the rightful remedy - a remedy we desperately need today.
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