Nullification – Better Than Secession

How’d that secession thing work out for you? Not so well? Want to get all the benefits of secession without any of the drawbacks? The Tea Party has your answer – nullification. Any law a state doesn’t like can be declared unconstitutional and poof, the state can ignore it. Want to ignore Brown v. Board of Education? No worries.

Only one problem, nullification is unconstitutional.

Article III of the Constitution:

The judicial Power [which is vested in one supreme Court] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

The Supreme Court gets the final decision, which is the only one that counts, of what’s constitutional and what’s not. The Tea Party should just drop the “unconstitutional” pretext and be honest by saying that states can ignore federal laws they don’t like. But, then they’d run smack into the supremacy clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

James Madison, in a letter to N. P. Trist, explained the problems concerning the establishment of the national government’s supremacy over the states:

The obvious necessity of a controul on the laws of the States, so far as they might violate the Constn & laws of the U. S. left no option but as to the mode. The modes presenting themselves were 1. A Veto on the passage of the State Laws. 2. A Congressional repeal of them. 3. A Judicial annulment of them. The first tho’ extensively favored at the outset, was found on discussion, liable to insuperable objections arising from the extent of Country and the multiplicity of State laws. The second was not free from such as gave a preference to the third as now provided by the Constitution.

The Founders had a preference for judicial annulment, which ultimately rests with the supreme judiciary of the land, the Supreme Court.

James Madison from NOTES ON NULLIFICATION:

But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined

It is an adage of Constitutional theory that if the text doesn’t support your claim, argue original intent. The Tea Party’s claim fails on both counts.

H/T: NY Times (Jeffrey Rosen)

-David Drumm (Nal, who likes to stick “it” out there on legal theory issues)

Aside: Some are confusing my posts with Professor Turley’s. This could be because of similar writing styles, similar wit, or similar legal acumen, and not because of lazy reading.

90 thoughts on “Nullification – Better Than Secession

  1. Nal,

    Not for nothing, but SCOTUS does not have the final say as to what the law is; see Ex Parte McCardle.

    Further, while I’m not that familiar with this recent tea-party ‘nullification’ buzz, I do know that you’re over looking something known as dual federalism.

  2. Bob, thanks for the heads up.

    I need to read A Critical Guide to Ex Parte McCardle by William W. Van Alstyne.

    At first read you may be right. The Exceptions Clause may be used to limit the Court’s jurisdiction. Although it doesn’t seem to have bearing on the issue of whether states can determine the constitutionality of laws.

  3. Nal,

    “The Founders had a preference for judicial annulment”.

    Really? Care to cite a source other than Hamilton (who wasn’t present during the discussion, and whose idea were rejected by the delegates)?

    I’m not in favor of nullification, but doesn’t the Supremacy Clause effectively render all laws repugnant to the Constitution, void (“and the Judges in every State shall be bound thereby”)?

    Rosen doesn’t like the Tea Party. I get that. What I don’t get is how he manages to pin Skousen on the Tea Party’s lapel just because he attended a meeting in which 25 people showed up.

    As to Mike Lee, he ran on, and was elected, based on a specific platform. (Which was the basis of Rosen’s story.)

    Recently, I observed many here calling for military personnel to come out of the closet. Those people had decided that a law was unconstitutional based on the interpretation of one rogue judge. (I say “rogue” because other District Court Judges, and other Circuit Panels ruled the law to be constitutional).

    The Founders never envisioned the act of a lone judge to become the “law of the land” anymore than they envisioned the decisions of a lone state becoming the law of the land.

  4. Oh-oh … I’ve read these arguments before but I’m up for another go-around ’cause they’re damn interesting and there is always a new point made … well, not new, just a point I missed the first time.

  5. Nal,

    When I hear tea partiers talk about what the constitution demands, and then get it so horrible wrong, I feel the same frustration. And don’t forget about all the upcoming celebrations about the 150th anniversary of the start of the Civil War. I just don’t understand it.

    Bob,Esq.,

    You put far too much weight on Ex parte McCardle. You can’t use one Supreme Court decision that kind of supports your position to deform our system of government.

  6. Bob,Esq.,

    Ex Parte McCardle simply shows that Congress reigns supreme.

    Bullshit. A supreme legislature is the British system that was explicitly rejected.

  7. See what I mean … this is good stuff (I’m talking to the grandkids who are emailing me off-blog)

    “A supreme legislature is the British system that was explicitly rejected.” (James M.) (That’s a point I missed before)

  8. James M.: “You put far too much weight on Ex parte McCardle. You can’t use one Supreme Court decision that kind of supports your position to deform our system of government.”

    Ex Parte McCardle is nothing more than a manifestation of what the constitution EXPLICITLY states. It’s not opinion; it’s fact.

    James M.: “Bullshit. A supreme legislature is the British system that was explicitly rejected.”

    How do you argue with an explicit rule spelled out within the constitution?

  9. Bob Esq.,

    What about Ex parte Yerger? The jurisdiction provided by the Judiciary Act of 1789 existed at the time of McCardle, but that Court chose to ignore it.

    McCardle is bad precedent. The Court very clearly had jurisdiction under another statute. If that isn’t good reason to look upon the Court’s decision in McCardle, I don’t know what is.

  10. Precedent has nothing to do with it. The rule is explicitly set forth within the constitution. It is a SPECIFIC DELEGATION OF POWER TO CONGRESS. Period.

    Accordingly, unlike Citizens United, the only way you change that law is by amendment.

  11. James M.,

    Are you familiar with Winthrop v. Lechmere (Privy Council, 1728)?

    “When I hear tea partiers talk about what the constitution demands, and then get it so horrible wrong, I feel the same frustration.”

    You only get frustrated because you think your interpretation must be the correct one. There are numerous positions held by honorable people of significant legal acumen wherein the best they could do was agree to disagree.

  12. Bob,Esq.,

    There’s no doubt that the Constitution gives Congress the power to regulate the appellate jurisdiction of the Supreme Court. How do you go from that undisputed fact to: “Congress reigns supreme”? Being able to regulate appellate jurisdiction does not give Congress the power to enforce its view of the Constitution — at its broadest possible interpretation, it means that Congress gets to take its chances with the highest state courts, rather than with the federal judiciary.

  13. BBB:

    Care to cite a source other than Hamilton …

    I did. The quote from Madison directly above.

    Ex parte Yerger wasn’t heard by the Court and was mooted by Yerger’s release.

  14. BBB,

    I enjoy educated debate about the Constitution. Scalia is one of my favorite justices, even though I think I’ve only ever fully agreed with one of his opinions.

    I’m talking about being frustrated with people who claim they are taking their cues from the constitution, but then argue for demonstrably unconstitutional things, like nullification.

  15. BBB:

    Are you familiar with Winthrop v. Lechmere (Privy Council, 1728)?

    No, no, no. If you think a case has merit to the discussion, you have to quote the appropriate passage. No tossing out case names as if that is sufficient.

  16. James M.: “There’s no doubt that the Constitution gives Congress the power to regulate the appellate jurisdiction of the Supreme Court. How do you go from that undisputed fact to: “Congress reigns supreme”?

    The ‘reigns supreme’ statement was in contradiction to Nal’s claim that:

    “The Supreme Court gets the final decision, which is the only one that counts, of what’s constitutional and what’s not.”

    The final and ultimate arbiter of what is law rests with congress; due to the fact that it has the SPECIFICALLY ENUMERATED POWER to cut the appellate jurisdiction from the Supreme Court at any time.

    James M.: “Being able to regulate appellate jurisdiction does not give Congress the power to enforce its view of the Constitution”

    While the power has hardly ever been invoked, the SPECIFICALLY ENUMERATED POWER IS THERE whether you like it or not.

    James M.: “at its broadest possible interpretation, it means that Congress gets to take its chances with the highest state courts, rather than with the federal judiciary.”

    You’ve just ventured off the topic of limitations on SCOTUS and into the topic of dual federalism.

  17. Bob,Esq.,

    The final and ultimate arbiter of what is law rests with congress . . .
    You’ve just ventured off the topic of limitations on SCOTUS and into the topic of dual federalism.

    I haven’t ventured off topic, and you are factually incorrect in your first statement. Congress doesn’t get to have the last say. Ever. If not the Supreme Court, than the highest state courts get to pass on the constitutionality of its laws.

  18. Nal,

    “I did. The quote from Madison directly above.”

    That had to do with supremacy over the states, but completely ignored any laws created by the federal government.

    “No, no, no. If you think a case has merit to the discussion, you have to quote the appropriate passage. No tossing out case names as if that is sufficient.”

    I asked a question! If I had used the case to support a position, I would have quoted the appropriate passage.

  19. James M.: “I haven’t ventured off topic, and you are factually incorrect in your first statement. Congress doesn’t get to have the last say. Ever. If not the Supreme Court, than the highest state courts get to pass on the constitutionality of its laws.”

    Again, in the Federal scheme, congress was specifically given the final say.

    However, when you bring state courts into the equation, you’re no longer discussing the comparative powers of SCOTUS v. Congress. You’re talking about dual federalism; ANOTHER TOPIC ENTIRELY that I alluded to earlier and even provided a link for a discussion on the topic by former Chief Judge of New York Judith Kaye:

    http://www.nycourts.gov/history/elecbook/kaye_cardozo/pg2.htm

    For example, if you think the supremacy clause empowers the Fed to pass laws that are more restrictive of state citizens rights than a state constitution protects; you’re gravely mistaken.

  20. Addendum, in cases of impeachment, and for judging the qualifications of its own members, establishing its own rules, etc. Congress gets to have the last say. On substantive legislation, my point stands.

  21. Bob:

    The final and ultimate arbiter of what is law rests with congress; due to the fact that it has the SPECIFICALLY ENUMERATED POWER to cut the appellate jurisdiction from the Supreme Court at any time.

    But Congress does not determine what is constitutional, only what is law. By the Exceptions Clause, it is possible for Congress to pass, for example, an ex post facto law and have it stand. Is it your claim that the ex post facto law is constitutional?

  22. Bob Esq.,

    I don’t agree with any interpretation of the exceptions clause that would permit Congress to take SCOTUS out of the picture, so that it could create an unconstitutional law, and get by with it.

    I think the purpose of the exceptions clause was to provide Congress with the ability to economize the judicial system they were about to create. Not to render it mute when they wanted to get away with something.

  23. Bob,Esq.,

    Broad statements like “Congress gets the final say” are simply wrong, even if you can construct a set of artificial constraints to make them correct. Between Congress and SCOTUS, Congress gets to determine the appellate jurisdiction of SCOTUS. That’s true. However, that doesn’t give Congress the “final say”, it gives it choice of venue (by moving the judicial review to the state courts).

    Pointing out that statements like “Congress gets the final say” are SIMPLY WRONG may be bringing in “ANOTHER TOPIC ENTIRELY” from the narrow view you took on the issue, but it’s doing so for a good reason.

  24. Nal: But Congress does not determine what is constitutional, only what is law.

    Correct.

    Nal: By the Exceptions Clause, it is possible for Congress to pass, for example, an ex post facto law and have it stand.

    Congress can pass whatever law it likes; the question is whether the power exists to pass such a law which in turn will determine whether it will be executed or respected by any state. Since congress specifically lacks the power to pass an ex post facto law, the law wouldn’t be worth the paper it was written on or the remainder of the careers of the congressmen responsible.

    Nal: Is it your claim that the ex post facto law is constitutional?

    I never made such a claim.

  25. Bob,Esq.,

    For example, if you think the supremacy clause empowers the Fed to pass laws that are more restrictive of state citizens rights than a state constitution protects; you’re gravely mistaken.

    When dealing with third parties, the more protective state law (the one providing more coverage) applies. However, if you meant that the state can pass a law that negates direct federal action, I think you’re wrong. Is that what you meant? What makes you think so?

  26. BBB:

    That had to do with supremacy over the states, but completely ignored any laws created by the federal government.

    For federal laws, I would argue that “the Laws of the United States” would “arise under the Constitution” and hence, be subject to Judicial Power. That power would be nullification.

  27. BBB,

    No. We have state courts applying the federal constitution (which they do every day). Normally, the states would have uniformity provided by SCOTUS, but if SCOTUS is denied appellate jurisdiction, we’d face the possibility of inconsistent decisions — but that still isn’t nullification.

    Nullification is most commonly a state legislature saying “Law X doesn’t apply in this State.”

  28. Bob:

    Nal: Is it your claim that the ex post facto law is constitutional?

    No, but who decides what is constitutional? According to you, it is not the Supreme Court but rather Congress who reigns supreme in making that decision.

  29. BBB: “I don’t agree with any interpretation of the exceptions clause that would permit Congress to take SCOTUS out of the picture, so that it could create an unconstitutional law, and get by with it.”

    There is no matter of interpretation to discuss since the power is explicitly set forth. Furthermore, if I recall correctly, the power of judicial review rests strongly on something called the judiciary act of 1789. Those powers are not derived from the constitution; they’re derived exclusively from congress.

    BBB: “I think the purpose of the exceptions clause was to provide Congress with the ability to economize the judicial system they were about to create. Not to render it mute when they wanted to get away with something.”

    You naively assume that congress exercising such power would be ‘trying to get away with something.’

    Let’s turn the clock back ten years to December 9, 2000; when Scalia and cadre violated the separation of powers doctrine (i.e. such as why the case was non-justiciable) to such an extent as to render the constitution into nothing more than a urinal puck.

    Vincent Bugliosi: “In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush’s application for the stay, wrote that “the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.” But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn’t be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor–you’re as guilty as sin. In my prosecutorial days, I’ve had some worthy opponents. You wouldn’t be one of them. Your guilt is so obvious that if I thought more of you I’d feel constrained to blush for you.” (Vincent Bugliosi, ‘None Dare Call It Treason’)

    http://www.thenation.com/article/none-dare-call-it-treason

    If Congress had been feeling a scintilla of constitutional integrity and decided that the third branch was out of control in ignoring its Article VI duty, the separation of powers doctrine and not to mention the 12th amendment and cut off its appellate jurisdiction?

    Would you still say that congress was ‘trying to get away with something?’

  30. Nal,

    “For federal laws, I would argue that “the Laws of the United States” would “arise under the Constitution” and hence, be subject to Judicial Power. That power would be nullification. It is the only power available to the judiciary, regarding laws.”

    I think the word “power” is what causes a lot of confusion when it comes to the Court reviewing the constitutionality of a law. I think the word “duty” is much more apropos.

    The courts have a duty to not give any force or effect to an unconstitutional law. In other words, they must ignore that which is void. It’s when they go beyond that and starting exercising power over the sovereign (i.e. permanently enjoining another branch) that I have a problem with.

    If cases were to be styled “The People of the United States v. ???”, I think the courts would be more likely to recognize who they are exercising power over.

  31. Those who have the power to amend, just like any editor, have a lot of say. Amendment and interpretation are distinctly different processes though. However, Congress can no more legally breach the separation of powers doctrine than the Executive can by wrongfully claiming the right to suspend habeas corpus (Bush) – usurping the Constitution by fiat – and order the execution of American citizens without due process (Obama) – usurping both the Constitution and the Judiciary. Congress’ ability to limit appellate jurisdiction is plainly spelled out in the Constitution. By in large, I agree with Bob on the “ceiling/floor” interpretation. It’s that same rationale that made some of the later positive decisions concerning civil rights possible.

  32. Bob Esq.,

    “There is no matter of interpretation to discuss since the power is explicitly set forth.”

    Just like no ex post facto laws? See Calder v Bull (1798)

    “if I recall correctly, the power of judicial review rests strongly on something called the judiciary act of 1789.”

    The jurisdiction relies on the Judiciary Act. The duty rests with the Supremacy Clause.

    “You naively assume that congress exercising such power would be ‘trying to get away with something.’”

    Is that not your intent when it comes to Citizens United?

    “December 9, 2000”

    Why not impeachment?

  33. Bob Esq.,

    “If Congress had been feeling a scintilla of constitutional integrity and decided that the third branch was out of control in ignoring its Article VI duty, the separation of powers doctrine and not to mention the 12th amendment and cut off its appellate jurisdiction?

    Would you still say that congress was ‘trying to get away with something?’”

    I’d say that Congress retained full authority in regard to certifying the election.

  34. Bob,Esq: “For example, if you think the supremacy clause empowers the Fed to pass laws that are more restrictive of state citizens rights than a state constitution protects; you’re gravely mistaken.”

    James M.: “When dealing with third parties, the more protective state law (the one providing more coverage) applies. However, if you meant that the state can pass a law that negates direct federal action, I think you’re wrong. Is that what you meant? What makes you think so?”

    So riddle me this; does Federal preemption pave the way for warrantless wiretapping of New York residents when the New York State Constitution reads:

    §12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

  35. Nal: “No, but who decides what is constitutional? According to you, it is not the Supreme Court but rather Congress who reigns supreme in making that decision.”

    The addition of the predicate ‘constitutional’ to this discussion does nothing but obfuscate the issue. Determining whether a law is or is not constitutional is an accepted function of the supreme court. While analyzing the rightfully executed powers of two branches of government as set forth within the constitution can be termed ‘constitutional;’ if not redundantly.

  36. Bob,Esq.,

    Assuming the federal constitution allows for warrantless wiretaps, the state can’t stop federal law enforcement officers from doing their job. The NY example isn’t a great demonstrative on the issue because we all agree with the NY position, and I suspect most of us think the federal constitution should be interpreted in the same way.

    However, what if NY’s constitution said, “Whereas wiretapping has been habitually abused by law enforcement, no wiretaps shall ever be installed in the State.” Is it your position that NY could prohibit the federal government from ever using a wiretap within the state (as opposed to the more reasonable restriction requiring them to get a warrant first).

  37. BBB: “The jurisdiction relies on the Judiciary Act. The duty rests with the Supremacy Clause.”

    Jurisdiction is POWER. Responsibility as to what to do with said power is a secondary matter.

    Bob,Esq.: “You naively assume that congress exercising such power would be ‘trying to get away with something.’”

    BBB: Is that not your intent when it comes to Citizens United?

    Not at all, since corporate personhood has absolutely no roots within our social compact.

    “December 9, 2000″

    BBB: Why not impeachment?

    How does impeachment address the act?

  38. “Aside: Some are confusing my posts with Professor Turley’s. This could be because of similar writing styles, similar wit, or similar legal acumen, and not because of lazy reading.”

    Way to “stick it to ’em” Nal.

    Excellent thread topic.

  39. James M.: “Assuming the federal constitution allows for warrantless wiretaps, the state can’t stop federal law enforcement officers from doing their job.”

    In order to make that assumption, YOU MUST ASSUME THAT THE FOURTH AMENDMENT HAS BEEN REPEALED. So, why would you make such an assumption in the first place?

    James M.: “The NY example isn’t a great demonstrative on the issue because we all agree with the NY position, and I suspect most of us think the federal constitution should be interpreted in the same way.”

    Note that the first part of the cite from the New York Constitution is nothing more than a reprise of the 4th amendment. Accordingly, it is interpreted in a similar fashion. However, New York sets the ceiling a tad higher by
    adding the words: “The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated”

    Did you catch that? New York set the ceiling of rights; so guess who wins?

    James M.: However, what if NY’s constitution said, “Whereas wiretapping has been habitually abused by law enforcement, no wiretaps shall ever be installed in the State.” Is it your position that NY could prohibit the federal government from ever using a wiretap within the state (as opposed to the more reasonable restriction requiring them to get a warrant first).

    I see what you’re getting at, via reductio ad absurdum, but your hypothetical is a tad absurd and the final parenthetical makes your question rather confusing.

  40. Bob,Esq.,

    In order to make that assumption, YOU MUST ASSUME THAT THE FOURTH AMENDMENT HAS BEEN REPEALED. So, why would you make such an assumption in the first place?

    Because your example only works if you assume a conflict between the state and federal constitutions. If we assume that the fourth amendment requires a warrant, the answer is “The federal government needs a warrant because of the Fourth Amendment” and the NY State Constitution never enters into the equation at all.

    That’s why I said it wasn’t a great demonstrative for the issue.

    New York set the ceiling of rights; so guess who wins?

    You haven’t demonstrated that a state can restrain the federal government in this situation. That was what you were supposed to be doing. Pointing out that this falls into the scenario you are supposed to be proving is meaningless.

    I see what you’re getting at, via reductio ad absurdum, but your hypothetical is a tad absurd and the final parenthetical makes your question rather confusing.

    The issue is, can a state provide its citizens with protections from the federal government that are stronger than are contained in the U.S. Constitution? Phrased like that, I’m actually not sure which side of the issue I’m on. As such, I don’t think pushing the envelope on your example is reductio ad absurdum at all. I think it’s distilling your argument to test its value.

    Since I wasn’t as clear as possible, I’ll rephrase without the parenthetical:

    Could a state prevent everyone, including the federal government, from using wiretaps in that state?

  41. Bob Esq.,

    I didn’t say that the word “power” wasn’t the accepted term. I just don’t like the nuances associated with the term.

    Jurisdiction has more to do with putting the square blocks in the square holes. Bring a round block to a court having only the authority to hear square block cases, involving square block litigants, the court would lack jurisdiction.

    Whe the government brings a case against a person who violated the law, it does not become an adversary subject to the personal jurisdiction of the court. The people, represented by the government agency bring the charge on their behalf, remain sovereign. A judge has no more authority to enjoin the Department of the Navy, than it does to incarcerate them.

  42. James M.: Because your example only works if you assume a conflict between the state and federal constitutions.

    No, my example applies because the particular language of the NYS constitution equal and independent state grounds for decision and sets the ceiling higher via specificity.

    James M.: If we assume that the fourth amendment requires a warrant, the answer is “The federal government needs a warrant because of the Fourth Amendment” and the NY State Constitution never enters into the equation at all.

    No, an entirely different clause that does not exist within the 4th amendment is to be applied to the issue of warrantless wiretapping of electronic communication.

    James M.: You haven’t demonstrated that a state can restrain the federal government in this situation. That was what you were supposed to be doing. Pointing out that this falls into the scenario you are supposed to be proving is meaningless.

    Actually, what would be required here is a full court proceeding and appellate arguments. My apologies for pointing out the relevant issues; such as how the State of New York provides a higher ceiling of rights, regarding electronic communications, to its citizens than the federal constitution.

    James M.: The issue is, can a state provide its citizens with protections from the federal government that are stronger than are contained in the U.S. Constitution?

    “In our dual system, the Supreme Court’s growing dominance necessarily affected constitutional law as applied by state courts. While state courts have at all times been important contributors to the body of constitutional law, they too became involved in the application of federal law. So long as the federal floor, or national minimum, was satisfied, state courts could have imposed ceilings in the form of greater rights applicable within their own borders under their own constitutions, and these judgments would then have been conclusive, beyond Supreme Court review.”

    http://www.nycourts.gov/history/elecbook/kaye_cardozo/pg3.htm

  43. The people, represented by the government agency bring the charge on their behalf, remain sovereign. A judge has no more authority to enjoin the Department of the Navy, than it does to incarcerate them.

    SB

    The people, represented by the government agency bringING the charge on their behalf, remain sovereign. A judge has no more authority to enjoin the Department of the Navy, than it does to incarcerate them. (Unless Congress specifically grants the power to permanently enjoin that department. I’m not sure Congress could do that with the Department of the Navy, but it could do it with other entities under the Executive.)

  44. Bob Esq.,

    Are you saying that a state could eliminate wiretapping, even with a warrant, should they set the ceiling that high?

  45. Bob:

    The addition of the predicate ‘constitutional’ to this discussion does nothing but obfuscate the issue.

    The issue was your claim to contradict my statement:

    “The Supreme Court gets the final decision, which is the only one that counts, of what’s constitutional and what’s not.”

    ‘Constitutional’ is not an obfuscation, it is the point.

    When confronted by an unconstitutional law, the Court has three options, it can let it stand, nullify it, or modify it. Since the Constitution mandates Congress make the laws, modification is not an delegated option. That leaves nullification as the only available option. When the Constitution mentions “judicial Power”, nullification is logically implied.

  46. This isn’t substantive, but calling the federal laws a “floor” makes sense, since the state cannot go below them. But calling the state’s higher restrictions a “ceiling” implies that they are capping rights, not providing greater rights. In the floor analogy, the state’s greater protection is more like lofting a second floor, like you’d have in a room full of computer servers.

  47. BBB: “Are you saying that a state could eliminate wiretapping, even with a warrant, should they set the ceiling that high?”

    Technically speaking, yes. Practically speaking, the idea of the sovereign giving back power it already has is absurd.

  48. nal,

    “When confronted by an unconstitutional law, the Court has three options, it can let it stand, nullify it, or modify it. Since the Constitution makes the laws, modification is not an delegated option. That leaves nullification as the only available option. When the Constitution mentions “judicial Power”, nullification is logically implied.”

    But so is the power to modify. SCOTUS, just like any lower lower court, is not bound to accept or reject claims in toto. The law is replete with examples where on appeal a claim has been partially upheld and partially dismissed.

  49. Nal,

    The structure and order of operations as explicitly set forth within the constitution lay the final and ultimate decision as to what is and is not federal law at the feet of congress.

    Fact is the founders gave congress the specific means to cut SCOTUS at the knees with a final un-reviewable say. Period.

  50. Bob,Esq.,

    The issue is not whether the state can provide broader rights (they can), but whether those rights are binding on the federal government.

    In our wiretapping example, if Congress passed a law saying “The FBI may wiretap, if they first secure a warrant.” and New York passed a law saying, “No one may wiretap in New York”, the Supremacy Clause would negate the New York law.

    The area in which I’m interested is where there isn’t a law directly on point, but the Constitution provides less restriction than the state law.

  51. James M.: “This isn’t substantive, but calling the federal laws a “floor” makes sense, since the state cannot go below them. But calling the state’s higher restrictions a “ceiling” implies that they are capping rights, not providing greater rights. In the floor analogy, the state’s greater protection is more like lofting a second floor, like you’d have in a room full of computer servers.”

    Believe it or not, I had similar objections to the use of language here when I first read about it.

    But when you think about society being defined as a set of agreed upon limitations, wouldn’t the more restrictive society resemble a crawl space while the more free society resembles a living room?

    Anyway, that’s basically how I see it now.

  52. Bob,Esq.,

    State courts can’t be cut off like that. I’ll repeat myself since I think it’s a clever analogy: Congress gets to choose the venue for judicial review, not have the last word.

  53. But when you think about society being defined as a set of agreed upon limitations, wouldn’t the more restrictive society resemble a crawl space while the more free society resembles a living room?

    But the whole point of the state law is that you can’t go below it either. The “ceiling” language makes it sound like we all have to live in the attic.

  54. James M.,

    “In our wiretapping example, if Congress passed a law saying “The FBI may wiretap, if they first secure a warrant.” and New York passed a law saying, “No one may wiretap in New York”, the Supremacy Clause would negate the New York law.”

    Spot on!

  55. Bob,Esq.

    The question:
    “Are you saying that a state could eliminate wiretapping, even with a warrant, should they set the ceiling that high?”

    The succinct answer:
    Technically speaking, yes. Practically speaking, the idea of the sovereign giving back power it already has is absurd.

    =========================================================

    If, hypothetically, the State of New York did eliminate all wiretapping and their Supreme Court ruled in favor of the new law, what could (would)the Federal government do? What action could they take?

  56. James M.: The issue is not whether the state can provide broader rights (they can), but whether those rights are binding on the federal government.”

    Indeed.

    James M.: In our wiretapping example, if Congress passed a law saying “The FBI may wiretap, if they first secure a warrant.” and New York passed a law saying, “No one may wiretap in New York”, the Supremacy Clause would negate the New York law.

    Probably, but it’s not that clear. Consider that the states never specifically empowered the Fed to pass general criminal laws.

    Prof Charles Whitebread: “The third and most interesting thing for you all as judges about the Harrison Act was its structure, because the structure of this law was very peculiar and became the model for every single piece of Federal legislation from 1914 right straight through 1969. And what was that model?

    It was called the Harrison Tax Act. You know, the drafters of the Harrison Act said very clearly on the floor of Congress what it was they wanted to achieve. They had two goals. They wanted to regulate the medical use of these drugs and they wanted to criminalize the non-medical use of these drugs. They had one problem. Look at the date — 1914. 1914 was probably the high water mark of the constitutional doctrine we today call “states’ rights” and, therefore, it was widely thought Congress did not have the power, number one, to regulate a particular profession, and number two, that Congress did not have the power to pass what was, and is still known, as a general criminal law. That’s why there were so few Federal Crimes until very recently.”

    http://www.druglibrary.org/schaffer/history/whiteb1.htm

    Assuming your issue made its way to a State Supreme Court, the argument in favor of the state would be that the Fed may not use the supremacy clause as a means of effectively amending the constitution to declare a power for itself that it was not specifically given.

    James M.: The area in which I’m interested is where there isn’t a law directly on point, but the Constitution provides less restriction than the state law.

    Less restriction? As in more protected by the State? Not sure what you mean here.

  57. Bob Esq.,

    I disagree with Marshall’s interpretation in Marbury, re Section 13. I think Congress, should be able to give SCOTUS original jurisdiction in cases in which the holding must be binding upon all other courts.

    The Constitution barely touches on the Judiciary. The 370, or so, words contained in Article III did little more than establish that there would be a Federal Judiciary. It barely laid the foundation.

    When Oliver Ellsworth drafted the Judiciary Act, he did so having first-hand knowledge of what the intent of the Framers was.

    Maybe the original Constitution (the one with the original punctuation) would shed more light on what the exceptions clause was intended to do.

  58. James M.: “Congress gets to choose the venue for judicial review, not have the last word.”

    Again, I’m only speaking ‘last word’ when it comes to congress v. SCOTUS.

  59. Blouise’s grandson,

    If, hypothetically, the State of New York did eliminate all wiretapping and their Supreme Court ruled in favor of the new law, what could (would)the Federal government do? What action could they take?

    I think Bob,Esq.’s post at 2:33 should have answered your question. My own opinion is that Congress could pass a law explicitly giving the federal government that power, and that that law would then trump the state law because of the Supremacy Clause. Bob agrees that is what would happen if the law were valid, but argues that the law giving the federal government that power would be invalid for other reasons.

    P.S. Your law trivia fact for the day is that in New York, the New York Supreme Court is actually the trial level court. The New York Court of Appeals is their highest court.

  60. Bob,Esq.,

    Yes, I should have said “less restriction on the federal government, than the state law.” Or, rephrased, the state law provides more protection.

  61. In Federalist 46, Madison discusses how the states might respond to an “unwarrantable measure” by the general government. One must assume that if one allows that the states might respond to an unwarrantable measure then the states must actually be able to determine whether or not a measure is in fact unwarrantable. This implies that the states must judge whether an act of the general government is or is not in accord with the Constitution.

  62. Blouise, grandson thereof: “If, hypothetically, the State of New York did eliminate all wiretapping and their Supreme Court ruled in favor of the new law, what could (would)the Federal government do? What action could they take?”

    First, no State Supreme Court has the power to approve or disapprove of a state constitutional provision. The reason for that is simply a matter of order of operations. That is, since the Court owes its very existence to the document in question, it does not logically have the power to ‘rule’ on its validity.

    That aside, ‘order of operations’ is a key phrase to keep in mind when analyzing issues involving state v. fed. Should the Fed decide to promulgate a law that directly contradicted a provision in a state constitution, the ultimate issue would be whether the state (and all other states) ultimately conceded the power to the fed to do so via the supremacy clause.

    In lieu of analyzing a contradiction between state and federal governments on the level that might incite a civil war, consider a more likely contradiction to appear in the future. Let’s say California legalizes the possession of marijuana and amends its constitution to do so. May the Federal Attorney General prosecute citizens of California for violating federal laws prohibiting the possession of marijuana?

    Two issues immediately present themselves: first, the issue of dual federalism; and second, the issue of fed supremacy and the question of ‘order of operations’ regarding the ceding of power between the state and the fed.

    Under the doctrine of dual federalism, if the California state constitution set a higher ceiling of rights for the citizens of California than the Federal Constitution, then the state constitution prevails.

    Under the issue of supremacy, the battle would be fought on the lines of whether the supremacy clause could be used to effectively amend the constitution of the State of California and violate the principles of dual federalism.

    I brought up the concept of ‘order of operations’ earlier to stress the importance of knowing which way the powers of the individual, state and federal government are arranged. You must always remember that power flows from individual to state to federal government (specifically). The federal government is only as powerful as the states and people specifically enumerated. Recalling that principle brings the issue into focus; i.e. “did the states empower the fed to do what they are alleging they have the power to do?”

    In the foregoing case, the federal government would be hard pressed to claim it had a greater right to enforce its laws over the laws of the state because the underlying argument would be that the state never specifically ceded the power to the fed to promulgate general criminal laws within its boundaries.

    Most importantly, if you begin with an alternate order of operations, i.e. lazily assuming that the Fed ALWAYS had the power to do what it proposes, then you’ll always be using an order of operations that’s tantamount to asking “where did the other dollar go?”

    “Three men went to a motel. The motel manager said a room cost $30, so each man put up $10 and went to their room. A little while later the manager realized the room was only $25, so he sent the bellboy back to the three guys room with $5. On the way to the room the bellboy couldn’t figure out how to split the $5 evenly between the 3 men, so he gave each one of them $1 and he kept the other $2.

    This meant that the 3 men paid $9 each for the room for a total of $27. Add the $2 that the bellboy kept = $29.

    Where did the other dollar go?”

    http://www.naute.com/puzzles/puzzle1.phtml

    Rights confer power; not vice versa.

    Your question seems to indicate that you deem the Federal government

  63. BBB,

    All I did was restate the obvious in that all specific judiciary power not conferred by the constitution, i.e. most of it, is conferred by congress.

    Accordingly, the fact that congress has the power to limit appellate jurisdiction, and thus the power of the court, should come as no surprise.

  64. Blouise’s grandson,

    You should also probably know that while Bob,Esq’s analysis is clearly very heartfelt, it is not (yet?) widely accepted.

    Taking the California medical marijuana issue, most people would ask:
    1) Is the federal law regulating marijuana valid?
    (The widely accepted answer is yes.)
    2) Is there a conflict between the state and federal law?
    (Federal law criminalizes trafficking in marijuana; state law says no one should be arrested for marijuana, so yes)

    The Supremacy Clause then kicks in and the federal law trumps the state law, for the purposes of federal enforcement. That doesn’t mean that the state has to enforce the law, but they can’t stop the federal government from doing so.

  65. I’m sorry I didn’t respond sooner. We are baking cookies and my sisters are making a mess.

    I am cheating a little bit. Next semester I am taking a class on the U. S. Constitution and the Constitutions of the original thirteen States. The syllabus lists subject matter that is similar to the discussion here. ‘Order of Operations’is mentioned and I am trying to get a jump on the paper I will have to write. End of confession.

    I was thinking of the legalization of marijuana but decided to stick with the example of wiretapping that was being discussed. Thank you for bringing it up. It seems like a more plausible reason for disagreement.

    I can see the sense in the following, “In the foregoing case, the federal government would be hard pressed to claim it had a greater right to enforce its laws over the laws of the state because the underlying argument would be that the state never specifically ceded the power to the fed to promulgate general criminal laws within its boundaries.” So my question, and I admit it may be an ignorant one, is; To whom or what would the federal government make that claim if it desired to do so?

    Bob Esq: You started to ask me a question, “Your question seems to indicate that you deem the Federal government”. I don’t mind answering. I think the Federal government has too much power right now. I am the only Republican in my whole family and it drives my Grandma nuts!

    Thank you all and thank you Longshot for the history interpretation. Maybe I will be able to ask better questions after I take the class.

  66. Madison does NO disavow nullfication. As presented above.

    The quote from Madison only proves that what is LAWFULLY the function of the Federal government viz a viz the Constitution is absolutely positively lawful. It does not apply to unconstitutional acts by the federal authorities otherwise the federal government could abolish the constitution as long as they legislated it.

    The contention of the nuffliers (and I am one) is that the Federal government has NO authority or legal standing to violate the Constitution themselves then force the states to live with it.

    That is what Madison had always believed. Jefferson too.

    The federal government has no authority to write the constitution out of existence then arrogantly, piously and hypocritically stand on the coonstitution itslef when it comes time to defend their unconstituional acts. The founding fathers weren’t that stupid to allow such a thing to happen.

    They knew such a stance was usurpation, tyranny, and hypocrisy.

    Madison loathed this kind of thinking.

    He supported nullification. That is how we got America. And he and his fellows weren’t about to let another England grow up from the ashes of the old one here on our shores.

    Creating America was an act of nullification. That is why Madison supported it.

  67. grandson posting from grandma’s (blouise) computer,

    You said, “I think the Federal government has too much power right now.”

    I submit that perhaps you should consider the nature of power and how it is exercised/misused versus simple quantity of power.

    Having a gun and using it properly are two different things.

  68. The debate over whether the Supreme Court or the Congress has the final say in laws is moot in this case, because either way you are talking about the federal (not the state) government. Whichever branch you want to argue has supremacy still belongs to the federal government. Therefore, any attempt by an individual state to rule a federal law unconstitutional is, by definition, unconstitutional.
    I teach Advanced Placement US History, so I do know of what I speak.
    The most relevant historical analogy is the 1931-2 South Carolina attempt to nullify federal taxes (which they felt unfairly benefitted northern industrial interests). In case you didn’t notice, all branches of the federal government (and James Madison) said that no state can nullify a federal law on the grounds that they don’t like it. If the argument is a constitutional one, then it should go through the (federal) courts. No state can override a federal law. You might have noticed that this is why the federal government was able to forcibly integrate schools in the 1950s and 1960s. As per the Force Act of 1832, and reaffirmed several times by both the Congress and the Court, the federal government can force (by use of military force if necessary) a state to comply with federal law.

  69. Kristin,

    Thanks for chiming in; we often don’t have enough historical background, so it’s appreciated.

    The argument about whether Congress can impose its will on the Supreme Court through the exercise of jurisdiction is a longstanding one, not directly related to this topic.

    Therefore, any attempt by an individual state to rule a federal law unconstitutional is, by definition, unconstitutional.

    I take your broader point, and agree, but I will point out one situation in which the way you phrased your statement is wrong: A state’s courts can apply the federal constitution to rule a federal law unconstitutional. In doing so, however, they are bound by the precedent of, and can be overruled by, the Supreme Court.

  70. This is a very interesting thread. The problem is that the nullification noises we are hearing lately have not come from serious constitutional scholars, or even serious thinkers. Instead, they are part of a reactionary, and largely political, attack on the federal government in general. They emanate largely from states that produced the nullification crisis of the 1840s, or from people who believe Pres. Obama is a socialist, or a Muslim or a Kenyan, or all three. In my view it is not coincidental that nullification has only become a hot topic again since the 2008 election.

  71. James,

    A state court CANNOT, by definition and separation of powers, rule a federal law unconstitutional. Only federal courts can do that. If state courts were thus empowered, state courts in the southern states could have overturned Brown v. Board of Education. In addition, the federal government can legally enforce a state’s compliance with federal law.
    State law CANNOT nullify, overturn, or fail to enforce federal law. The relevant legislation cites each state’s agreement to enforce the Constitution. Since a state’s entry into the Union precedes and is superior to any subsequent state constitution or state law, a state is – by force of contract – bound to comply with federal law.

  72. Kristin,

    If a state court is faced with a conflict between a federal law and the U.S. Constitution, the state court must follow the Constitution, not the federal law.

    I’ll try to think of an example that proves my point. It would likely have to raise a federal question as a defense, but no federal question in the complaint, so it couldn’t be removed to federal court. In the mean time, are you saying those types of cases simply never arise in state court?

    If state courts were thus empowered, state courts in the southern states could have overturned Brown v. Board of Education

    Brown v. Board of Education is a decision of the Supreme Court, not a federal law. As I said above, state courts are bound by the interpretation of the Supreme Court on federal questions.

  73. Kristin,

    re: Your second paragraph (State law CANNOT nullify, overturn, or fail to enforce federal law.)

    My point was not that state law could modify federal law, but that federal laws cannot violate the Constitution, even in state court.

  74. By “those types of cases” I mean, cases which state courts have jurisdiction to hear and which could potentially put a federal law and the U.S. Constitution in conflict with each other.

    I’m willing to entertain the possibility that they simply don’t exist, which would make the point moot. The cases that most clearly put constitutional principals at odds with federal law are all criminal or rely on federal causes of action.

  75. Kristin,

    As James M. correctly stated, the highest court of a state definately rule on the validity of a treaty or statute of, or an authority exercised under the United States, and that court’s decision can be against the validity.

    Judiciary Act of 1789

    Section 25. “And be it further enacted, that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error…”

    These were commonly known as Twentyfifth Section cases when they hit SCOTUS.

  76. Kristin,

    As you can see, Congress, by giving SCOTUS appellate jurisdiction to review the decision of the highest court of a state when the decision is against the validity of a statute, was achnowledging that the state court had a duty imposed under the Supremacy Clause.

    The problem with nullification (as seen during the nullification crisis) is when the state legislatures (not the court) decide to nullify a federal statute. The reason that causes such a problem is that there is no judicial path for review.

  77. BBB,

    Here’s the thing. Yes, a state court can rule on the questions of constitutionality – as it applies in that state. State courts can never overturn a federal statute. In Prigg v. Pennsylvania, the Supreme Court ruled that a state does not have to spend its own resources to enforce a federal law, however no state can prevent the federal government from enforcing that law or hinder the federal government’s enforcement. The federal government, moreover, has the right to enforce any statute, by force if necessary, within the states. Again, I’ll refer you to civil rights legislation. No state court could or can independently “overturn” voting or integration laws. They can (and did) refuse to enforce them. And the federal government can (and did) enter the state and use federal power to enforce the law.

    Moreover, I don’t at all follow your argument that the state courts have a “duty” under the supremacy clause. A case can go strictly through the federal courts with no intervention from the state courts. As I’m sure you are aware, it depends on the nature of the crime/case.

    In addition, the quote you referenced above is 1) from 1789, prior to SCOTUS and Congressional decisions regarding the rights of the state vis-a-vis the federal government, including Prigg v. Pennsylvania, the Force Act, and others; and 2) reading the clauses, states (“or where is drawn in question the validity of a statute of, or an authority exercised under any State”) state court decisions are valid only when it questions authority “exercised under any State,” not under the federal government.

    Moreover, and more importantly, Supreme Court cases (such as Smith v. Turner and Norris v. City of Boston), which include aruments based on the 25th section of the Judiciary Act were brought as complaints against state laws that were unconstitutional (under the federal constitution), not the other way around. In each case, the Supreme Court overturned rulings issued by the state courts, as these state laws violated federal constitutional rights. This is backed up by the tail end of the section you quote above, namely: “on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error…” Again, this states that any decision made by a state court on a state law, which is then found to be “repugnant to the Constitution…of the United States” can be reviewed and overturned by the Supreme Court.

    Therefore, again, state courts can only decide constitutionality of state laws. If those laws, or court rulings, are subsequently found to violate the federal constitution, the Supreme Court is entitled to review and overturn them.

    As far as I can see, then, this validates the supremacy of both judicial review (Marbury v. Madison) and the supremacy of federal constitutional law above state law.

  78. Yes, a state court can rule on the questions of constitutionality – as it applies in that state. State courts can never overturn a federal statute.

    Perhaps we had a misunderstanding about what would happen once a state court found that a federal law violated the constitution? Clearly a state court’s interpretation is not binding on courts in other states or on federal courts — that’s simply the nature of how the courts are structured, and the precedential power they give those decisions.

    I also feel the need to point out that you’re introducing a new concept into the discussion: “overturning” a federal law. My point was simply that there are scenarios in which a state court could find a federal law was unconstitutional. I never claimed the effect of that decision would be to strike down the law everywhere.

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