Saturday, November 27, 2004

The Alternative to Nullification

In an earlier post I whimsically advanced the idea that States might nullify blatantly unconstitutional laws created through the legislative process or by judicial fiat. Andrew Jackson -- to whom I usually wouldn't defer in matters constitutional -- responded to the Nullification Crisis by issuing a proclamation, in which he said:
...The ordinance [of nullification approved by South Carolina] is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution - that they may do this consistently with the Constitution-that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true they add, that to justify this abrogation of a law, it must be palpably contrary to the Constitution, but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws. For, as by the theory, there is no appeal, the reasons alleged by the State, good or bad, must prevail....But reasoning on this subject is superfluous, when [the U.S. Constitution] in express terms declares, that the laws of the United States...are the supreme law of the land; and for greater caution adds, "that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." And it may be asserted, without fear of refutation, that no federative government could exist without a similar provision....
I must concede that Jackson (or his lawyers) made an effective case against nullification.

Now, where does that leave us? It leaves us with the hope (or fear, if you are of the left) that the U.S. Supreme Court -- when "packed" with two or three newcomers appointed by Bush -- will redouble its efforts to restore something resembling the federalism envisioned by the Framers. In the words of Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."