March 14, 2013

BARELY LEGAL: Reviving Nullification: Take it to the state

Print More

“I’ll fight it all the way to the Supreme Court!”

We’ve all heard that phrase before, raised as we are to think of the Supreme Court as the final decider of important constitutional issues. When conservatives want to attack local anti-gun laws, they take the fight to the high court. When liberals want expanded abortion rights or gay marriage, they do the same.“I’ll fight it all the way to the Supreme Court!”

We’ve all heard that phrase before, raised as we are to think of the Supreme Court as the final decider of important constitutional issues. When conservatives want to attack local anti-gun laws, they take the fight to the high court. When liberals want expanded abortion rights or gay marriage, they do the same.

But the court has rarely been a faithful guardian of our constitutional rights. It’s true that over most of the past century it hasn’t been shy in striking down state laws that it thought violated “fundamental rights.” But at the same time it has almost always stamped its approval on whatever new power the federal government decides to assert. The 2005 Gonzales v. Raich case, in which the Court held that, under the “interstate commerce clause,” Congress could prohibit the use of home-grown medical marijuana — which never traveled interstate and was never sold commercially — represented the outrageous extent to which the Court would twist constitutional language to empower the federal government. It was not, however, surprising, and stood in a long tradition of deference to federal power.

But recently, local communities have begun to stand up for themselves and protect the rights that the Supreme Court won’t.

They’re reviving the old principle of “nullification.” That is, they’re asserting the states’ power to declare a federal law unconstitutional and therefore null and void. In so doing, they’re returning power to the states, where, being closer to the people, it is better controlled.

Nullification is a bipartisan principle. Today, conservative legislators in states such as Vermont, Oklahoma, Oregon, and South Carolina have introduced bills to nullify Obamacare and federal gun grabs.

But liberals and civil libertarians are nullifying too. Last year, Virginia nullified the 2012 National Defense Authorization Act — a horrible law, supported by President Obama, which would allow the president to detain American citizens indefinitely without trial or access to a lawyer. Likewise, when Washington and Colorado legalized marijuana last year, they did so in the face of explicit federal law to the contrary — a sort of de facto nullification. And Californians have been using medical marijuana for years, despite Gonzales v. Raich empowering the feds to prevent them from doing so.

Though in the 20th century nullification got a bad name through association with southern segregationists, it had been honorably invoked before then to oppose such legislative abominations as the Alien and Sedition Acts and the Fugitive Slave Act (One Vermont state judge is said to have defiantly proclaimed that he would only return a fugitive slave once he received a bill of sale from God!).

But, despite that history, doesn’t it feel weird that states can nullify federal law?

Well, it shouldn’t. The people of the individual states originally created the Constitution to serve their own interests — to “form a more perfect union.” In legal parlance, the people of the states are the “principals” and the federal government is just their “agent,” — created only to further the people’s interests.

Though the Supremacy Clause makes federal laws “made in pursuance of” the Constitution the “supreme law of the land,” disputes will often arise over whether a law is really “in pursuance of” the Constitution, or whether it actually violates it. The orthodox position is that only the Supreme Court gets to make that decision.

But really, when an agent and principal disagree over what their relationship means, the principal’s interpretation should always triumph.

For instance, if you hire a lawyer to help you through a divorce, the lawyer is your agent and has to act in accordance with your interests (though he will have some latitude in how he does so). But if the lawyer understands your agreement to also authorize him to arrange you a second marriage, then you certainly have the right to refuse — to nullify his decision — on the grounds that he exceeded his authority.

If this were not the case, and the agent gets to decide for itself what the agreement really means, then the agreement gets turned on its head. No more would the government serve you — now you’re just along for the ride, forced to go along with whatever your erstwhile agent commands.

So in order to conserve the original principal-agent relationship, the people of the states — and not the Supreme Court — must have final say on what the Constitution allows.

Of course, law professors may come up with all sorts of justifications for how the Constitution changes with the times, or why the federal government’s “enumerated powers” conveniently turn out to be so expansive as to be virtually unlimited.

But that is irrelevant. The important point is that many people disagree with them. They view the rise of omnipotent, centralized government with horror — and they don’t care what Professor Laurence Tribe thinks of it. The government is supposed to reflect their interests just as much as it reflects his.

These people demand real limits on federal power. If the Supreme Court won’t enforce those limits, then they will do it themselves, through their states. As an exercise in self-government, nullification is long overdue.

Kelse Moen is a third-year law student at Cornell Law School. He can be reached at khm39@cornell.edu. Barely Legal runs alternate Fridays this semester.

Original Author: Kelse Moen