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.
That was meant to be the 1832 (not 1932) nullification crisis.
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.
Whats wrong with a little civil disobedience?
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.
NO=NOT*
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.
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.
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.
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.
“Your question seems to indicate that you deem the Federal government”
Should be deleted.
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
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.
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.
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.
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.
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.
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.
their Supreme Court meaning the Supreme Court of the State of New York
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.
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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?
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!