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. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

Comments are closed.