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.
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).
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.
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.)
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.
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?
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.
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.
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?’
Bob:
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.
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.”
BBB:
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.
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?
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.
James M.,
If we move judicial review to the state courts; don’t we have nullification?
http://en.wikipedia.org/wiki/Nullification_(U.S._Constitution)
For those who are interested in knowing more about Winthrop v. Lechmere, and the role of the Privy Council in colonial America:
http://www.dinsdoc.com/schlesinger-2.htm
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.
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.
Bob:
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?
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.
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.