Sometimes, support for state action to block unconstitutional acts springs up in the most unlikely of places. Take this gem from a former Washington D.C. prosecutor who admits he “just about always sided with the United States in circumstances in which the states have tried to preempt the federal government.” Jeffery Shapiro agrees that states should not enforce any federal acts violating the Second Amendment.
“For once, I’m inclined to side with the states on this matter — at least in spirit, since I know many of the federal laws being proposed by the Democratic Party are unconstitutional.”
There you have it! A prominent D.C. insider, and a former federal employee to boot, acknowledging states should work to thwart unconstitutional federal acts.
Of course, Shapiro’s logic quickly goes off the rails. He predicates his support of nullification efforts on the fact that the Supreme Court has ruled federal firearms laws violate the Second Amendment.
“States may not have a legal basis for enforcing the new nullification laws, but technically they are right that any attempt by the federal government to disregard the U.S. Supreme Court’s ruling in Heller or MacDonald is unconstitutional and should not be enforced.”
So basically, Shapiro only supports nullification if Supreme Court opinion provides the basis for declaring an act unconstitutional. Still, we’ll take what we can get. Here we have a federal supremacist at least acknowledging the limits of federal power AND offering tacit support to the idea of states serving as a check on overreaching DC’vers.
That’s good stuff!
Now if we can just take Shapiro the rest of the way and get him to recognize that five black-robed federal employees rubber-stamping an act in clear violation of the Constitution doesn’t magically make that act constitutional. On this subject, we have a way to go.
Any law, whether state or federal, must comply with the Supreme Court; otherwise, we compromise our entire system of checks and balances and the Separation of Powers doctrine that dictates the branches do not overstep one another’s function. Nullification laws are not necessary. The White House and Democratic Senate simply needs to comply with the court and the Constitution of the United States of America.
Maybe he should read my Nullification for Lawyers article.
I suppose, in a perfect world, we could count on the federal government to limit its own power through its courts. But gazing back over 200 years of history makes it clear we don’t live in a perfect world. If we take Shapiro’s argument to its logical conclusion, there was a time when free black men and women really weren’t citizens and northern states were absolutely wrong in trying to prevent black citizens from being dragged South into slavery with no due process under the Fugitive Slave Act of 1850. Both of those scenarios existed as Supreme Court approved law of the land, after all.
If Shapiro really believes in the limited nature of the federal government, he can’t believe that the Supreme Court makes the exclusive and final determination on the extent of those powers. Simply put, if federal courts are the final authority on federal powers, that power is unlimited. The Constitution doesn’t authorize this.
Jefferson obliterated the nonsensical notion that the federal government decided the extent of its own power.
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; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
So nullification is absolutely necessary, as James Madison pointed out.
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.
But even with his blind faith in federal self-limitation, I see a lot of hope in Shapiro’s support of state efforts to block violations of the Second Amendment. He acknowledges the state role in checking federal power, and that counts as a big step in the right direction.
Latest posts by Mike Maharrey (see all)
- The Commerce Clause: Not a Micromanaging Tool - September 7, 2014
- Necessary and Proper, Not Anything and Everything - September 3, 2014
- The General Welfare Clause is not about writing checks - August 28, 2014