Wednesday, November 24, 2004

Is Nullification the Answer to Judicial Supremacy?

I have written often -- and reluctantly -- that the words and logic of the Constitution give the judicial branch the last word in the making of law. (See here, here, here, and here.) But, thanks to a post by William Watkins at Southern Appeal, I found a blurb for The Politically Incorrect Guide to American History, by Thomas E. Woods Jr., which includes this passage:
[The book's] treatment of the early republic recalls parts of American history that have vanished into the memory hole, including the crucially important Virginia and Kentucky Resolutions of 1798 and Thomas Jefferson’s belief that only state nullification of unconstitutional federal legislation, rather than "checks and balances" among the branches of the federal government itself, had a chance of keeping the federal government in check.
Here, from Houghton Mifflin's "The Reader's Companion to American History," is a bit more about the Resolutions:
The Virginia and Kentucky Resolutions of 1798 and 1799 raised the question of states rights' and nullification. They were drafted in response to the passage of the Alien and Sedition Acts of 1798 but were concerned with a larger and more deep-rooted problem. How was power to be divided between the federal government and the states, and who was to settle disputes between the two?

The first Kentucky Resolution, passed by the state legislature on November 16, 1798, stated that when the federal government exercised power not specifically delegated to it by the Constitution, each state could judge the validity of that action for itself. The Virginia Resolution of December 24, 1798, claimed that the states "have the right and are in duty bound to interpose for arresting the progress of the evil." Several northern states objected that the judiciary, not the states, should be the arbiter of constitutionality. The Kentucky legislature passed a second Resolution on November 22, 1799, arguing that a single state had the power to nullify a federal action it deemed unconstitutional.

Unknown to contemporaries, the Virginia and Kentucky Resolutions were drafted, respectively, by James Madison and Thomas Jefferson. The doctrines they enunciated were later cited by southern slaveholders in support of their right to secede from the Union. Yet it would be a mistake to conclude that either Jefferson or Madison truly wanted to dismantle the Union. The Resolutions are best understood in the context of the fierce political battles between Federalists and Jeffersonians in the 1790s and the prevailing theory of divided sovereignty. When John C. Calhoun evoked the Resolutions in the 1820s to support his own doctrine of nullification, he was solidly opposed by James Madison.
Nevertheless, considering the authorship of the Resolutions, there may be something to the concept of nullification as a response to blatantly unconstitutional lawmaking, whether it arises from unchecked congressional overstepping of its enumerated powers or judicial fiat. Consider these passages from Madison's Virginia Resolution:
RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them....

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people....
And these passages from Jefferson's second Kentucky Resolution:
THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted....

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:...That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact....
"That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy." I love it.

See "The Constitution: Myths and Realities".