(Note, my rebuttal was published on the Tenth Amendment Center website.)
Robert Levy’s recent article, “The Limits of Nullification” is nothing less than an amalgamation of revisionist history covered in judicial fairy dust. His assertions are premised upon a flawed understanding of certain fundamental principles and constitutional history. Levy conveniently ignores them and, consequently, draws inaccurate conclusions.
Let’s dissect this piece by piece.
Levy implies the Constitution was ratified by the people acting in their aggregate political capacity – a single unitary body politic. In fact, many people believe this falsehood because they rely on the words “We the People of the United States” in the Preamble. The initial drafts of the Constitution named each and every state. They said, We the People of Maryland, Virginia, Delaware, etc. But, Article VII of the Constitution states, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”.
Each state is independent, free, and sovereign. The ratification happened within each State by the people acting in their highest political capacity. Each state voted up or down on the ratification. There was no popular vote across all thirteen states. There was no majority of people (50%, 75%, or 95%) of the people that could ratify the Constitution. The people of each free, independent, and sovereign State ratified the Constitution independent form every other state.
Moreover, New Hampshire was the ninth state to ratify the Constitution. The nine states ratifying the Constitution could not bind any of the remaining states. In fact, the Virginia and New York ratification conventions were aware that New Hampshire had ratified thus putting the Constitution into effect for the states so ratifying. Both states continued their conventions and proceeded with their votes for or against the Constitution.
The first government under the Constitution was comprised of only eleven states. North Carolina and Rhode Island had not ratified the Constitution when the first President was elected. Neither state had electors to vote for the President nor did they appoint Senators to the Senate or elect Representatives to the House. Both states were not part of the Union formed by the Constitution because they had not ratified it.
Demonstrably, the people of each free, independent, and sovereign state ratified the Constitution, not the people acting as one body politic. On June 6, 1788, James Madison addressed the Virginia Ratification Convention. Madison said, “Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it”. [Emphasis added.]
Madison wrote in Federalist #39, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”
Madison wrote, in the Report of 1800 to the Virginia General Assembly, “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 that compact; as no farther valid than 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.” … “The resolution declares, first, that “it views the powers of the Federal Government as resulting from the compact to which the states are parties,” in other words, that the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties.” Madison went on to say, “It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity.” [Emphasis added.]
The basis for nullification is founded in the people of each State through each state convention ratifying the Constitution. The compact is a fact, not a theory. Therefore, the creation of the people of the States was the federal government. The Constitution established the structure of the government; a legislative branch to make law, an executive branch to execute law, and a judiciary to adjudicate the law. Each branch is limited to specific enumerated delegated powers. Further restrictions were placed upon the federal government when the Bill of Rights was ratified.
Levy’s lynchpin in his argument is the Supreme Court. Levy said, “In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states.” This is partially true. There is only one Supreme Court. That’s the true part. The part Levy ignores is the Supreme Court is only supreme over the inferior courts that Congress may establish. The Supreme Court is not supreme over the other branches nor is it supreme over the states or the states’ courts.
In properly assessing constitutionality one cannot brush aside the fact that each branch is co-equal with every other branch. One branch cannot dictate how the other two branches can act. The order in which each branch deals with a law doesn’t change the constitutionality of a law. More importantly, the judiciary is not supreme over the other branches or over the constitution itself. The judiciary is beneath the Constitution.
Levy’s asserts “states cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional. That is up to the federal courts.” This is pure fantasy as it completely ignores the supremacy clause found in Article VI of the Constitution. The supremacy clause is a rule of construction on interpreting the powers delegated to the federal government in the Constitution. The supremacy clause does not declare the federal government supreme in all matters. The supremacy clauses establishes Supremacy of Law; meaning that in areas where the federal government was delegated power to act and a law is passed in pursuance of those powers the federal law is supreme. In all other cases State law is supreme.
This also raises the question whether Levy grasps the ideal of American federalism. Under the Constitution, all powers must fall into one of three categories; those exclusive to the federal government, concurrent powers where both the federal and state government can act, and by default everything else falls into those powers reserved to the states or the people.
Since the constitution only delegates powers… all other powers not delegated are reserved and this was re-enforced by the ratification of the tenth amendment. The constitution does not delegate any power to the federal government to modify the constitution through the judiciary. In other words, the judiciary is not and was not empowered to amend, modify, change, alter, or reform the constitution. Whenever the constitution is silent on an issue/power it is reserved to the people or the states. The argument by the Federalist against a Bill of Rights was premised primarily on the fact that whatever was NOT delegated was reserved and off-limits to the federal government; thus there was no need to protect any rights or privileges because they weren’t delegated in the first place.
While Levy doesn’t make this assertion I want to address a common misconception that is germane to this topic. People say the constitution doesn’t authorize a state to nullify a federal law. I completely agree. The constitution doesn’t authorize a state to do anything. The constitution was not intended to define state powers. State powers were “numerous and indefinite” as Madison said in Federalist 45. The constitution doesn’t state that local police powers, sumptuary laws, power over marriage and family affairs, intestate distribution of property, religion, education, social services, etc. are all state powers. But, because they are not delegated under the Constitution they fall, by default, into the third category of powers which are reserved to the states or the people.
If as Levy assets the Supreme Court is supreme over the other branches, supreme over the states, and supreme over the constitution itself then Levy must concede that the constitution is a dead letter as what it truly established is a federal government with unlimited powers. If the judiciary can define what the constitution means and the meaning is left to the discretion of nine lawyers then the Supreme Court has been running a 220+ year continuous constitutional convention.
This also raises some other important questions. First, the constitution reflects the political will of the people of each of the free, independent, and sovereign states. Why should one person on the Supreme Court (in a 5-4 ruling) decide a political question for 310 million people? Secondly, where and how did these nine people on the Supreme Court gain such insight and understanding to truly know the political will of the people? How can the Supreme Court overrule the political will of the people; the people of each state being the sovereigns? If the Supreme Court can overrule the political will of the people then our entire form of governance is farcical. We are truly ruled by an oligarchical regime limited by absolutely nothing.
Furthermore, is it not the least bit ironical that if you were to steal $1,000 worth of goods from Walmart and are on trial, you have to be convicted unanimously by a twelve person jury (in most cases). But, one person (in a 5-4 ruling) can decide everything and anything that impacts your life, liberty, and property. Levy cannot seriously believe the founding generation declared their independence from Great Britain, fought a war to gain their independence, just to establish a government of unlimited powers. This is the essence of Levy’s assertion and it is nonsense on stilts.
As Jefferson said in the Kentucky Resolution of 1798, “[a]nd that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the 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 powers 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.” [Emphasis added.]
Consequently, nullification has been used by northern and southern states throughout the history of the Union. While Virginia and Kentucky first used nullification in 1798, northern states nullified federal laws enacted under the Jefferson administration. For instance, Rhode Island legislature resolution of 1809 nullifying the Force Act; “ [t]hat the people of this State, as one of the parties to the federal compact, have a right to express their sense of any violation of its provisions.” Northern states nullified the Fugitive Slave Act of 1850.
I suppose if Levy were alive in the 1850s and living in a northern state he would have fully complied with the Fugitive Slave Act of 1850 because the Supreme Court rendered an opinion that the Act was constitutional. Let’s take this one step further. Suppose the Congress passes the following bills, the President signs them into law, and the Supreme Court upholds them.
1) A law that forces sterilization upon men and women.
2) A one-child policy law that either forces a woman to get an abortion if pregnant with a second child or if a second child is born alive the child is removed from the home.
3) A law that forces citizens to buy government securities.
4) A law that forbids any criticism of the federal government in any form including verbally, in writing, e-mails, etc.
5) A law that taxes 100% of your income and the government decides what job(s) you may perform.
6) A law that states the government can detain an individual indefinitely, without cause, and without any due process. My mistake, that’s already in place through an executive order.
The question is would Levy comply with these laws? And, if Levy concedes these are “valid” laws then how does this square with a federal government with enumerated powers?
Levy’s argument is really one for a government with unlimited powers. Naturally, this implies the constitution is a dead letter and we truly are at the mercy of the benevolence of our elected officials and nine unelected, unaccountable judges.