The contretemps between Senate President David Long and 11 Republican sponsors of SB 230, a bill that would empower Indiana to nullify unconstitutional federal laws and regulations, is not just an internecine battle between main line conservatives and Tea Party insurgents – it is also a more fundamental struggle between differing views of our constitutional system of checks and balances.
Andrea Neal, in her article “Democracy Debate Around Senate President David Long”, agrees with critics who say the Long should not stand in the way of hearings:
“The more hearings the better so the public can have open and honest discussion about public concerns. Nobody favors a return to decision making in smoke-filled rooms. SB 230 has 10 co-authors, itself an indication of substantial support in the upper chamber.”
However, on the substantive issue, the power of a state or states to nullify, Neal says that Long is right:
“As Long points out, the Supreme Court ruled in 1958 in Cooper v. Aaron that states are bound by high court decisions regarding the constitutionality of federal laws and must enforce them, even if they disagree with them. Yes, Indiana must obey the holding in National Federation of Independent Businesses vs. Sibelius.”
Senator Long has written that he is bound by the oath he swore, pursuant to Article 15, Section 4 of the Indiana Constitution, to uphold both the Indiana Constitution and the U.S. Constitution. The source of the requirement that state officials pledge, by oath or affirmation, to support the U.S. Constitution is actually Article VI, Clause Three of the U.S. Constitution. Indiana’s Constitution, merely repeats the requirement. Why did Senator Long cite the Indiana Constitution and not the U.S. Constitution?
Moreover, Senator Long and Ms. Neal fail to address key language in the federal “supremacy clause,” found in Article VI, Clause Two. That clause states that along with the U.S. Constitution itself, federal laws “which shall be made in pursuance thereof . . . shall be the supreme Law of the Land.” In other words, the states must defer to those federal laws, and only those federal laws, which are compatible with the Constitution.
If Long’s interpretation, based upon the 1958 Cooper decision, is correct, why would the Framers have had state officials pledge to support the Constitution instead of the federal government? Clearly, the answer is that, while relying on competing interests and constituencies within the federal government (the tripartite structure of the federal government, and pre-Seventeenth Amendment, the bicameral Congress) to act as a brake on federal power, the Framers intended state governments to operate as further and final checks on the power of the central government. History supports this interpretation.
Back in 1798, a Federalist controlled Congress passed the Alien and Sedition Acts, which were signed into law by Federalist President John Adams. The part dealing with sedition made it a crime to write, publish, or utter “scandalous or malicious” statements against the government of the U.S. In other words, the ink was barely dry on the Constitution and the Bill of Rights when the federal government made it a crime to speak out against policies of the federal government. It has been argued that this law, coming before judicial review was firmly established in Marbury v. Madison (1803), was clearly unconstitutional and would have been struck down had judicial review been in place. Perhaps. But what if Federalist dominated Courts and a Federalist Supreme Court had been called on to consider the constitutionality of this law earlier? Is it so obvious that political considerations would not have led to the Court to uphold the law? Perhaps the Court would have offered the argument that to overturn the law would render the Constitution into a “suicide pact”, allowing anarchy to tear the country apart.
In response to the Alien and Sedition Acts, Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, respectively, laying out the legal, constitutional argument for state nullification. Referring to the Constitution as “a compact” in the Kentucky Resolution, Jefferson wrote:
“…[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among the parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.”
Jefferson provides the answer to Long’s claim that the U.S. Supreme Court disposed of nullification in Cooper. In the Cooper decision, the federal government purported to decide the extent of its own powers, despite Article VI’s and the Tenth Amendment’s expressing the authority of states, through their individual state officials, to protect against unconstitutional federal overreach.
An obvious rejoinder to states having the power to nullify would invoke the sorry spectacle of Southern Governors Maddox, Faubus, and Wallace trying to block public school desegregation based upon reserved state power (mistakenly called “state’s rights” – individual citizens have rights, states have powers). Federal authority to desegregate state government-supported schools came from Section 1 of the Fourteenth Amendment. The fact that states have equal authority to interpret the Constitution doesn’t mean they will always interpret it correctly.
By the same token, it must be acknowledged by those who would deny the power of states to nullify unconstitutional federal laws that the Supreme Court has rendered numerous constitutionally incorrect decisions. For example, Section 1 of the Fourteenth Amendment was largely interpreted away in the 1873 Slaughter-House Cases. It was only resurrected by the Supreme Court many years later. Today, nearly all Constitutional scholars agree that the Supreme Court got the Slaughter-House Cases wrong. (Raoul Berger and Robert Bork were notable exceptions. For a good answer to Berger and Bork see Michael Kent Curtis’ book, No State Shall Abridge.)
Another terrible decision was United States v Butler (1936), which concluded that “common defense and general welfare” in the introductory clause of Article I, Section 8 was an enumerated power. In doing this, the Court explicitly rejected the ratification debates over the U.S. Constitution, most notably those between anti-Federalist Robert Yates, writing as Brutus, and Federalist James Madison, writing as Publius. Yates argued that “common defense and general welfare” plus the “necessary and proper” clause would give the proposed federal government plenary power to make any law that could be reasonably construed as being for either or both of these purposes. Madison’s response in Federalist #41 stated that both by normal legislative practice as well as accepted grammar, the first clause was explanatory for the specific powers that were enumerated after. Madison also pointed out several places in the Articles of Confederation where similar language was to be found. If legislating for the “general welfare” gave the new government nearly unlimited power, there was no need for the Constitution, since the power could similarly be found in the Articles. This issue was one of the more contentious ones – had Yates’ argument, rather than Madison’s, prevailed, it is quite likely the proposed Constitution would not have been ratified. Yet, the Supreme Court jettisoned the history of the ratification debates and blithely swept it all away in 1936.
Perhaps the worst of all Supreme Court decisions was Wickard v Fillburn (1942), which concluded that the power to regulate commerce among the states gave the federal government nearly unlimited power to regulate any and all economic activity. This decision requires a completely ahistorical, anachronistic definition of the word “commerce”, which was understood to mean “trade” – not economic activity - at the time the Constitution was ratified (see, for example, Randy Barnett’s “The Original Meaning of the Commerce Clause”).
In fairness, unlike the Slaughter-House Cases, the latter two decisions have not received near universal disapprobation by modern scholars. Originalists – those scholars who see the meaning of the text as understood at the time it was ratified – will say that the Butler and Wickard decisions were wrong. (It’s fair to say that four, possibly five, Supreme Court Justices hew in some degree to originalism.) Those who believe in the Constitution can be interpreted so as to change with the times – the Constitution is a “living document” – would disagree and say that the decisions were correct.
One thing is certain. Taken together, Butler and Wickard have contributed to a nearly unlimited arrogation of power by the federal government to itself. What is the recourse? Senator Long thinks a Constitutional Convention is the response. But the Constitution isn’t the problem – it doesn’t need to be amended. Besides, it is very difficult to amend the Constitution – it was designed that way. Given the constituencies in favor of today’s puissant social welfare state, there is little chance of finding 34 states willing to propose appropriate amendments and no chance of finding 38 to ratify.
Over time, the political class has found that the easiest way to change things is to push through unconstitutional laws and get the Supreme Court to uphold them, relying on the doctrine of stare decisis to make the Supreme Court decisions, once rendered, nearly impossible to reverse. (Even Justices Thomas and Scalia, the most ardent originalists on the Supreme Court, have been constrained by stare decisis.) One might argue that we could slowly evolve back to a constitutional republic by whittling away at the corpus of bad constitutional law created by the Supreme Court. That argument amounts to a hope – a vain one. There will be no interpretive revolution by the Supreme Court to lead the nation back to the Constitution, no matter how devoutly it may be wished. The Supreme Court has never been a revolutionary body and, by design, was never intended to be.
Does Senator Long really think that the Supreme Court is the final word on what is and is not constitutional, whatever the content of its decisions? Did the Framers really mean that even though state officials pledge to support the Constitution, they must robotically defer to the Supreme Court when it renders a decision that clearly violates the Constitution? Let’s explore this. Is it possible to come up with a law so egregious, so flagrantly unconstitutional that it would impel even Senator Long to call for its nullification? Allow me to offer such a law. I call it “The David Long Law”.
To set the stage, assume that the Democrats retake the House of Representatives in 2014 and cement their control over the Senate. In 2015, the Senate applies “the constitutional option” and completely eliminates the filibuster. Shortly thereafter, Congress passes a law to add six Justices to the Supreme Court, a perfectly constitutional act which is quickly accomplished. Meanwhile, arguing the war against terrorists is going badly, the President declares a state of emergency and issues executive orders that effectively eliminate due process in a host of areas. Senator Long speaks out nationally against these executive orders, declaring that the President has become nothing more than a dictator.
Congress responds by passing a law stating that Senator Long is engaging in seditious libel against the President, thereby threatening the peace and security of the United States. Accordingly, he should be imprisoned at the nearest federal penitentiary for a period of five years and all his properties subject to forfeiture. Senator Long takes this to federal court, stating that the law violates the Article I, Section 9 prohibition against Bills of Attainder and ex post facto laws. Long wins in the lower courts but the Supreme Court, by an 8-7 majority, finds against the Senator. Key to the decision is the argument that constitutional rights are not absolute – that a clear threat to public order, such as that presented by Senator Long’s statements against the authority of the President, must be given extra weight. After all, “the Constitution is not a suicide pact.” Later, the President in defending the Supreme Court’s opinion observes that “The David Long Law”, by being limited in its scope, maintains the Americans’ basic rights. “Only the treasonous statements of David Long are being punished,” says the President.
After taking up residence at the federal penitentiary in Terre Haute, how would Senator Long react to the Indiana General Assembly enacting a nullification law? Would he still maintain that state nullification was unconstitutional?
Our constitutional system was designed to be self-regulating – to maintain itself through a process we would today call dynamic feedback. Through generations of neglect, most of the feedback mechanisms have broken down. A permanent bureaucracy operates as a fourth branch of government, promulgating regulations having the force of law, a violation of Article I, Section 1 of the U.S. Constitution, which states that all legislative power is vested in Congress. The President issues executive orders having the force of law, in violation of the same constitutional provision. Congress passes laws for which it has no enumerated power. The Supreme Court allows them to stand by creating new powers (for example, “common defense and general welfare”) where they didn’t exist.
The Constitution is the “supreme Law of the Land.” When federal officers, both elected and appointed, in all three branches of government have failed in their duty and have violated their oaths of office, the final support for the Constitution rests with state officials, operating through their state governments. The Framers designed the system that way, as we see in Article VI and the Tenth Amendment. Any doubts about that should be dispelled by the arguments offered by Jefferson and Madison, among others, in 1798.
I can understand why some, even knowing that the Federal Government engages in many activities that violate the Constitution, are leery of the prospect of state nullification. It seems to operate outside the law, to be a form of civil disobedience. It does not and is not. When nullification is properly used to defend the Constitution, it is civil obedience. This is how any and all objections to nullification should be answered.