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.
-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.
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.
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.
Nal is proving to be an excellent moderator, IMO
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.
BBB:
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.
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.
BBB:
I did. The quote from Madison directly above.
Ex parte Yerger wasn’t heard by the Court and was mooted by Yerger’s release.
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.
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.
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.
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.
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?
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)
Bob,Esq.,
Ex Parte McCardle simply shows that Congress reigns supreme.
Bullshit. A supreme legislature is the British system that was explicitly rejected.
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.
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.
Nal: “Although it doesn’t seem to have bearing on the issue of whether states can determine the constitutionality of laws.”
Ex Parte McCardle simply shows that Congress reigns supreme. Dual federalism means that while the Fed may set the floor of rights, states set the ceiling.
http://www.nycourts.gov/history/elecbook/kaye_cardozo/pg2.htm
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.
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.
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.