A commenter on a recent article taking apart Heritage Foundation objections to nullification presented by Dr. Matthew Spalding presented yet another attack on the doctrine by another prominent conservative scholar.
The reader said she watched a video by Edward J. Erler, a professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. The video featured a talk on the Second Amendment presented by Hillsdale College’s Kirby Center. After watching the video, the reader sent Erler an email asking about his views on nullification.
They didn’t prove particularly favorable.
The supremacy clause makes the Constitution the supreme law of the land as well as all laws and treaties made in pursuance of the Constitution. Who judges when the laws are constitutional or not? The tenth amendment “supporters” say the states because the states ratified the Constitution. This is not true: the Preamble says “We the people do establish and ordain this Constitution” not we the people of the States.
This argument reveals the heart of the conservative objection to nullification. To embrace nullification, one must reject the Alexander Hamilton – Joseph Story – Abraham Lincoln notion of “one nation” made up of “one people” and accept that the states remain sovereign political societies, only delegating specific powers to a general government for the purpose of a union.
Erler gets the most fundamental point correct. The people stand as the sovereign in the system. No government possesses sovereign powers. Governments only exercise powers delegated to them by the people. So when we talk about “state sovereignty,” we simply mean that the state government has the exclusive authority to exercise certain powers delegated by the sovereign people of the state. In other words, no other constituted political society can intrude upon those powers within the borders of that state.
When Erler asserts that one American people ratified the Constitution, he fails to grasp the delegation of powers within the American system. At the time of the Philadelphia Convention, the sovereign people were already organized into 13 distinct political societies. When they ratified the Constitution, the sovereign people of the states removed some powers from their state governments and transferred them to the general government in order to form a “more perfect union.” In other words, a better union than the one already established by the Articles of Confederation. That union did not diminish the independent nature of the states. At no point did the sovereign people dissolve those preexisting political societies and transfer all authority to the general government. What was true prior to ratification remains true today: no other constituted political society can intrude upon those powers remaining to the states. And that includes the federal government.
Alexander Hamilton makes this clear when explaining federal “supremacy” in Federalist 33.
If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed…But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.
It’s interesting how Erler paraphrases the preamble.
“We the people do establish and ordain this Constitution”
It actually reads, “We the people of the United States…”
In fact, original drafts listed all 13 states. Why did the committee of style remove the listing and go simply with “United States?” Because it was unclear whether all 13 states would approve the Constitution. The union became operative after nine states ratified. They couldn’t very well have a Constitution listing states that were not part of the union.
So the preamble in no way proves “one American people.”
Erler asserts that the “states” did not ratify the Constitution. But that really depends on how you define the word states. In one sense of the word, “states” did indeed ratify – or more precisely, the “people of the states.” James Madison makes this distinction in his Report of 1800.
It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “States” in the [Virginia] resolution may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the “States”: In that sense the “States” ratified it; and in that sense of the term “States,” they are consequently parties to the pact from which the powers of the Federal Government result.
Simply put – one American people did not ratify the Constitution. The sovereign people, through their preexisting political societies – states – ratified the Constitution. It did not create a “national” government, but a federal system preserving those distinct and independent political societies, while delegating specific powers to the general government. Madison summarizes the ratification process in Federalist 39.
First, In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [Emphasis added]
This fact leads to a logical conclusion: the people of the states, in their sovereign capacity, maintain the right to determine the extent of the power delegated and to take action when the federal government tries to exercise powers it does not possesses. In other words, the doctrine of nullification follows from the nature of the system itself. Madison makes this logical connection in the Report of 1800.
The [people of 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.
Erler goes on to insist nullification will lead to anarchy. I wonder what exactly he calls the current situation. The federal government refuses acknowledge any constitutional restraint whatsoever. It operates outside of any constitutional structure. It flaunts the rule of law on a daily basis. It seems a little disingenuous to claim nullification will somehow damage the constitutional system. The constitutional system no longer exists precisely because the people of the states have not insisted that the federal government remain limited to its enumerated powers. Nullification is actually the last hope of restoring the intended balance of power.
But Erler says there’s no more debate.
This was all settled in the Civil War and subsequently in the 14th Amendment. 10th Amendment supporters keep wanting to refight the Civil War–sesession (sic) or state nullification can never be a constitutional doctrine
I find the notion that violence “settles” anything extremely offensive. Let’s say Erler claims 2+2=5. I object, so he bludgeons me over the head until I submit and acknowledge 2+2 does indeed equal five. Does that really settle the issue of 2+2?
And it remains completely unclear what the 14th Amendment has to do with nullification. The 14th addressed specific issues relating to the citizenship of newly emancipated slaves. (Read more HERE.) The drafter of the amendment himself asserted he had no intention of changing the basic structure of the system.
The care of the property, liberty and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.
As much as conservatives might like the romantic idea of “one nation,” it never existed. The people of the states retained their sovereignty, organized into their distinct political societies, from the colonial period until today. Thomas Jefferson beautifully encapsulated the American system in the Kentucky Resolutions of 1798.
The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that 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.
And when the federal government exercises undelegated power, nullification remains the “rightful remedy.”
For a more in depth discussion Joseph Story’s “one people” theory, read One Nation, Indivisible?
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