Thursday, April 7, 2011

Nullification, federalism, and the seperation of powers

I wasn't at CPAC, but Ron Paul was there, and his organization was handing out copies of the Constitution. Now while some copies of the Constitution will include additional relevant information, such as a brief history or the Declaration of Independence, this version included the Kentucky and Virginia resolutions which (supposedly) reserve for the states the right to nullify federal laws they consider unconstitutional. That these resolutions do not reserve such a right was the topic of a recent Heritage blog post.

Yes, it appears that the nullification debates are beginning again. But what the proponents fail to realize is that, in their zeal for curbing excessive federal powers, they are advocating a technique that is itself unconstitutional. Nullification was given a fatal blow by the adoption of the Constitution and confirmed dead by the Civil War. Even the very pro-state Andrew Jackson condemned the idea: "I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed." In short, nullification is unconstitutional by virtue of Article VI clause 2.
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, anything in the constitution or laws of any state to the contrary notwithstanding.
The Constitution removed sovereignty from the States, who under the Articles of Confederation shared sovereignty with the national government, and deposited it solely in the new Federal Government. As such, the states no longer have the authority to override or veto federal laws, even federal laws that are "unconstitutional."

The question, then, is what to do with unconstitutional laws or actions by the federal government. First, there is always the political check, which involves the removal of offending legislators (or presidents) and their replacement with new and better statesmen. Madison envisioned this when, in Federalist 44, he wrote that regarding overreach by the federal government, the states "will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives." Granted, the states role in this process is severely limited after the passage of the Seventeenth Amendment which took away their power to appoint Senators, but that was a power they forfeited.

Secondly, the three branches serve as checks upon each other. Specifically, Hamilton argues in Federalist 78 that "the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments." The courts are the agents fundamentally tasked with applying law to a particular case, and as such, have the responsibility to determine which of two conflicting laws is to be applied. When the Constitution conflicts with a federal law, the law must fall, as per the above cited supremacy clause. This is the exact reasoning used by Marshall in the case confirming judicial review: Marbury v. Madison.

Even more broadly, though, the courts are not the only agents that act as a check upon the other two branches. Both the legislators and the president are also expected to uphold the Constitution, and have the responsibility to--within their sphere--ensure that the Constitution is not violated. Legislators do this by voting against unconstitutional laws, executives do this via both veto and interpretation/enforcement (absent a judicial order to the contrary).

Thus, it is not that there is no check upon unconstitutional acts of the legislature, but that the people, the states, the judiciary, and the executive all have a specific role to play, and specific means of countering unconstitutional laws. By resorting to nullification, states are acting beyond their authority and encroaching on the type of constitutional enforcement reserved for the judiciary (judicial review) or executive (veto), just as the judiciary would be encroaching on the authority of the states or people if, rather than refusing to recognize a law, judges started lobbying or campaigning, in their official capacity (i.e. using their office), against officials they considered violating the constitution or otherwise got involved in the legislative/political process.
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