A
recent
article(click here) 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.
Or…
2. The
Court has the authority to expand federal power beyond what the
ratifiers delegated.
Get
the new book today!
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.
Michael
Maharrey [send
him email] is the Communications Director for the Tenth Amendment
Center. He proudly resides in the original home of the Principles of
'98 - Kentucky. See his blog archive here
and his article archive here.
He also maintains the blog, Tenther
Gleanings.
