Tuesday, December 04, 2012

Why "Nullification" is Invalid

Thanks to 44 who e-mailed me an interesting piece on the current "Nullification" controversy.  The article, to which I am responding is by Tom Woods.  He makes a lot of superficially appealing points, but misses a few key ones.

He writes

“Thus we read in a recent AP article, “The efforts [to nullify unpopular federal law] are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause. Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.”

I agree with that so far. He has spotted the key nail, but fails to hit it on the head. The gut issue that he misses is WHO has the final say on whether a federal law is “made in pursuance thereof” (is consistent with the Constitution)  It was established in 1803 (Marbury v Madison)  and anticipated in one of the Federalist papers that the federal courts, and ultimately the U.S. Supreme Court would have the final say. Somebody must have the final say or chaos will rule and the rule of law will be threatened.  Nullification is a power of each individual state. I have never seen it argued that the alleged power arises only when all of 2/3 of the states want to nullify (see below) For nullification as it has been argued to make sense, the states individually must each  have the final say on the meaning of the Constitution. Individual states could then reach different results on what the Constitution means that are binding in that state. If something is the Supreme law of the land, it must have uniform interpretation if it is to be “supreme".  This is inconsistent with the rule of law, and the Supreme Court’s 1803 decision in Marbury v. Madison. Jefferson is cited by the author, and his words provide some insight, but Jefferson was not part of the Constitutional convention. One can cherry pick the debates and find support for just about everything.   The Constitution specifies two specific remedies for unhappy states.  It does not specify nullification. There are 3 well specifically established routes, that do not threaten the rule of law and constitutional supremacy and uniformity, that states can use if they want to question a federal law. File a lawsuit and hopefully get to the Supreme Court. One can hope that the Court would hear the case if it was in the ballpark. States can ask that the federal law be invalidated.Second, one can amend the Constitution. Two-thirds of the states can, under Art. V of the Constitution, can call for a convention to amend the Constitution.  Finally, those unhappy with the law can use the federal legislative process to get it repealed.  There are at least 3 cleary valid alternatives to nullification.Why are these folks jousting at windmills and wasting our time with this sophistry?

Nullification defeats the uniformity and consistency across the nation that was one of the main motivations for the new constitution. Let me provide an extreme example of the mischief that could occur.  I don't think this will ever happen, but I am trying to make a point.  A plaintiff gets an injunction against a state forbidding it from discriminating against interstate commerce within the state.  The state argues that the statute authorizing courts to issue injunctions against state governments (42 U.S.C. sec. 1983) and its accompany jurisdictional statute are unconstituttional. If those statutes are unconstitutional, the courts have no jurisdiction to issue injunctions against the state and thus the injunctions are invalid. 

Nullification is fun to argue about, but is constitutionally irrelevant and invalid. I am reminded of theologians arguing about how many angels can fit on the head of a pin. 

1 comment:

  1. Your argument regarding nullification is well made professor. But because of today's continued national power-grab by progressives, returning to our founders' fundamental principles of limited and separate powers appears completely out-of-reach given the alternatives you've offered. I do agree about staying within the law. But as an anti-federalist devotee, I also believe that SCOTUS' decisions must always favor people's self-determination over federal control. Blocking central government from interfering in states' domestic affairs is absolutely reasonable under our country's design of federalism. Hiding behind the supremacy clause to advance ideological dogmas or for political gain is not.