decision

State Nullification and the Supremacy Clause

Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:

State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.

What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.

Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states

Details
Signingconstitu

Why the Framers Could Suggest Ratification by Only Nine States

SigningconstituIn prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.

Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only 9 states instead of the 13 the Articles required.

One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.

But there is a more formal, and perhaps better answer.  Here’s the background:

The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate

Details