by Michael Maharrey

In an Aug. 25 Washington Times article titled Rebellion by states could be hazardous to health care overhaul, Wake Forest law professor Mark Hall once again illustrates why we shouldn’t call on lawyers to tell us anything about the Constitution, even though they like to wave their hands in the air screaming, “I know, I know!” Lawyers may know a lot about “law” – as in the string of court precedents handed down over time, but they typically know precious little about constitutional history, political philosophy or the ratification debates, and their asinine comments on constitutional principles usually reveal their ignorance and their reliance on false premises.

When asked about state efforts to nullify the federal health care act, he calls them a “bad idea” and “political moves.”

“The Constitution couldn’t be clearer that the federal law is the supreme law of the land. The only question is whether the federal law is valid.”

In the meantime, Hall thinks the states should sit down, shut up and let the courts decide.

Which begs the question – who made the federal courts king?

Answer – the federal courts did. Which seems a little fox guarding the henhouseish, doesn’t it?

Let’s say you and I become embroiled in some kind of dispute, and I assert that my mother will make the final decision. Would you accept that? I mean, my mom is a wonderful woman. Very upstanding and fair-minded. In fact, she might decide things your way.

Every once in a while.


Nobody with an ounce of sense would accept that scenario. Yet millions of Americans, including legal experts like Hall, think that’s exactly how the U.S. system should operate. One branch of the federal government gets the final say in a dispute involving the federal government.

How’s that working out for us?

Between 1937 and 1995, the U.S. Supreme Court never once ruled a congressional statute unconstitutional? Not one. Now are you really going to tell me that everything Congress passed in that 58 year span was within the federal government’s constitutionally enumerated powers?


James Madison and Thomas Jefferson recognized this inherent conflict of interest and refused to accept the notion that the Supreme Court stood as the final arbiter.  In the Kentucky Resolutions of 1798, Jefferson wrote:

“The government created by this compact (the Constitution) 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.”

Madison expanded on this idea in his Report of 1800, a defense of the Virginia Resolutions of 1798.

But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.

On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that 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. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

Hall will likely protest that letting states judge for themselves will create unmanageable chaos. Aside from the fact that a little chaos isn’t always a bad thing, which formula fits better with the idea of democratic self-rule? Five out of nine judges, unaccountable to the people, making the final decision? Or the people’s representatives in multiple state legislatures judging for themselves?

Having lost the argument based on the historical record and basic logic, Hall will likely play the trump-card defenders of overreaching federal power almost always slap down – you know, the race card.

Oh wait. He did that already.

“It reminds me of governors who stood at the doors of their state universities and refused to accept the civil rights laws.”

You know what it reminds me of, Mr. Hall?

More than 3,000 people standing in front of a Milwaukee jail in 1854, insisting on the release of a fugitive slave captured, beaten senseless and thrown in jail to await shipment back south without due process. It reminds me that those people broke down the door of that jail and freed Joshua Glover, ultimately whisking him to freedom in Canada on the Underground Railroad. It reminds me that abolitionists appealed to the principles of nullification to fight draconian fugitive slave laws, laws that denied accused runaway slaves due process and forced northern citizens into the role of slave catcher. It reminds me that the legislature of Wisconsin backed up the state supreme court, defending its power to protect the man who instigated Glover’s release, declaring –

The Government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself.

I suppose they didn’t teach Professor Hall that in law school.

Mike Maharrey