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.
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.
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.
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.
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.
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.
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.
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.
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.
Bob:
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.
Bob Esq.,
Are you saying that a state could eliminate wiretapping, even with a warrant, should they set the ceiling that high?
Power of SCOTUS re appellate review.
BBB,
All I said was that the source of the power of SCOTUS is traced back to Congress. Order of operations.
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.)
*invokes equal and independent state grounds…
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
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.
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?
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.
“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.
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?