Tim Dunkin
Principles of constitutionalism: federalism as a check on federal power
Tim Dunkin
In the previous installment of this series, I discussed the constitutional principle of the separation of powers as a check on the accumulation of government force into the hands of any one man or group of men. Now, I would like to discuss the other intended division of power – the principle of federalism that was engineered into our constitutional system. This principle should be – and would be, if we would use it effectively – an even more powerful deterrent to federal government overreach than even the separation of powers between the three branches of government at the federal level.
The reason for is this is that, while the branches of the federal government may (and are, as we are seeing today) act in collusion to form an oligarchical clique working against a common enemy (the American people), the state governments are closer to the people, usually have more of their affection than does the federal government, and present a divided set of power centers that are less easily to be uniformly brought into collusion against We the People. While a few states like California, New York, Illinois, and Massachusetts may become corrupted by the spreading rot from Washington D.C., other states can serve as palladia of liberty against this rot, and can work to maintain the liberties of their people.
The primary means through which this should be done is the long-despised yet still constitutionally necessary principle of nullification.
If you believed everything that you learned in your civics classes in the publik skoolz, you know that nullification of federal laws by state governments is unconstitutional, right? Well, not really. The argument against any and all nullification of federal law by the states rests on two obvious failures of understanding, one concerning the Supremacy Clause in the Constitution, and the other concerning an historical event in the early Republic known as the "Nullification Crisis."
First, the Supremacy Clause, which is found in Article IV of the Constitution,
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The simple-minded assessment of this clause supposes that it means that any and all laws made by the federal legislature (as well as federal judicial rulings, and executive orders or the administrative rulings of federal executive agencies) automatically and at all times "trump" state laws. However, this is emphatically not what this clause is saying – and it all centers upon the phrase "made in pursuance thereof." That single statement nullifies the absolute supremacy argument. Only laws (or rulings, or administrative rules) that are in line with the specific words of the Constitution and the division of powers made within it are supreme over state law. If a federal law (or ruling, or rule) is not "in pursuance" to what the Constitution says, then not only is that law (or ruling, or rule) null and void (because, as we have seen, the Constitution is supreme over every other aspect of government) prima facie, but it is also subject to complete and unlimited nullification by state governments, either through a refusal to credit it with authority, or through state law that directly overturns it.
Since this interpretation of the Supremacy Clause is at such variance with the common understanding that has prevailed since our nation took on a more unitary character with power centralized into the hands of the federal government (such that many assume, without investigation, that this is what was intended all along), it is reasonable to ask if my statement above is in line with what the Founders actually intended. I believe that it is, as Hamilton shows us,
"But it may be again asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers as upon the declamatory clause; and I answer in the second place that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any State, would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposed to exist in the State governments?" (Hamilton, Federalist #33)
What Hamilton tells us here, among other things, is both that it is indeed possible for the federal government to overstep its boundaries and either invade the exclusive jurisdictions of the states or to overstep in areas of concurrent jurisdiction, and also that when the federal government does so, the people (implied to be through the agencies of their respective states, see the 9th and 10th amendments) have the right to "take such measures" as to redress the overstep of federal power. The best way to do this without resorting to bloodshed is through the means of nullification. Later in this same essay, Hamilton makes this intent more plainly,
"Though a law, therefore, for laying a tax for the use of the United States should be supreme in its nature and could not be legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but a usurpation of power not granted by the Constitution...The inference from the whole is that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports." (ibid.)
Hamilton refers to the issue of taxation here because that is the immediate subject of his essay, but the same principle will necessarily apply to any other area – the federal government cannot insert itself into areas of State authority where it is not specifically given constitutional authority to do so. When it does, such attempts are themselves unconstitutional, and are subject to nullification, which is indeed the proper response of the states to such efforts.
Some might object that the federal judiciary "gets to determine what is constitutional." No, this is not always the case. For the time being, I will refrain from examining in depth this question and save it for a later discussion. However, I would put forward two basic points against the "unlimited judiciary" interpretation (which is actually based on the socialistic principle of legal positivism instead of our constitutional foundation in the rule of law): 1) federal judicial rulings may themselves be unconstitutional, since the plain wording of the Constitution controls, rather than the later accretions of lawyers and judges, and 2) what almost universally goes under the name of "judicial review" in today's courts bears little to no resemblance to the principle of judicial review that was established by the Marbury v. Madison ruling, which is often appealed to, and indeed goes far beyond the precedent established in that ruling.
The other argument against nullification is one that rests upon the assertion that the legality of nullification was "settled" in 1832 by Andrew Jackson when he resolved the Nullification Crisis. Briefly, the Nullification Crisis involved an attempt by the state of South Carolina to nullify a set of federal tariffs that had been passed by Congress and signed into law by President Jackson. The crisis was eventually resolved in the federal government's favor.
The reason that appeal to this event fails as an argument against nullification is simply due to the fact that, constitutionally, South Carolina was in the wrong. Article I, Section 8 clearly grants Congress the power to impose "taxes, duties, imposts, and excises" provided they are uniformly applied (i.e. they can't be applied unevenly so as to "punish" or "coerce" one or a few states through their economically destructive power). The tariff, apart from opinions about it in South Carolina or objective questions about its utility, was a constitutional law. It was not a federal overreach. Attempting to nullify it was an error on the part of South Carolina.
As such, this Crisis can in no wise be used as a reasonable or rational argument against the principle of nullification in general, since it constituted no test of nullification against an actual, unconstitutional federal law.
So far, we have not really seen this principle used effectively by the states – and this is largely because of the foolish tendency on the part of much of our population to hold to views supporting unconstitutional unitary and centralized power in the hands of the federal government, holdovers from the first flush of ultrabig government arising from the "Progressive Era" and the Roosevelt years. However, as events over the last few years have shown us, the states, or at least a large set of them, need to get serious about working together to nullify unconstitutional federal laws. Federal gun laws, federal intrusion into the arena of marriage, federal environmental laws – the list goes on and on as to what states need to nullify. This will take courage on the part of state governors and legislators, which means it may come very slowly, as politicians as a rule are not given to courage or forthrightness or to standing on principle. However, we have seen some movement in this direction, and We the People need to encourage those steps and let those taking them know that we stand behind them 100%.
Again, this is not some new or radical doctrine. Madison noted the power of the states to oppose (or we would say, nullify) errant acts of the federal government,
"On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments caused by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter." (Madison, Federalist #46)
Will this constitute a direct challenge to federal authority? Yes and no. The federal government will certainly take it as such – and the states need to be ready and prepared to deal with federal attempts at using coercion to enforce its will. Yet, if the federal government has no legitimate authority, then its authority cannot be said to be challenged – just its willingness to use raw, naked force to get its way unconstitutionally, which is a proposition carrying much less moral authority. Make the federal government openly decide whether it will use force to make state officials marry sodomites or enforce blatantly anti-2nd amendment gun laws and bullet bans. Force it to either back down or else lose all legitimacy by pursuing the path of coercion against the Constitution. We the People need to be ready and willing to stand with our state governments should such a thing happen. "That's asking a lot!" you say? Well, whoever said that liberty came cheaply or easily? The only coin liberty knows is the willingness to stand firmly on principles dedicated to its maintenance and extension.
© Tim Dunkin
By
In the previous installment of this series, I discussed the constitutional principle of the separation of powers as a check on the accumulation of government force into the hands of any one man or group of men. Now, I would like to discuss the other intended division of power – the principle of federalism that was engineered into our constitutional system. This principle should be – and would be, if we would use it effectively – an even more powerful deterrent to federal government overreach than even the separation of powers between the three branches of government at the federal level.
The reason for is this is that, while the branches of the federal government may (and are, as we are seeing today) act in collusion to form an oligarchical clique working against a common enemy (the American people), the state governments are closer to the people, usually have more of their affection than does the federal government, and present a divided set of power centers that are less easily to be uniformly brought into collusion against We the People. While a few states like California, New York, Illinois, and Massachusetts may become corrupted by the spreading rot from Washington D.C., other states can serve as palladia of liberty against this rot, and can work to maintain the liberties of their people.
The primary means through which this should be done is the long-despised yet still constitutionally necessary principle of nullification.
If you believed everything that you learned in your civics classes in the publik skoolz, you know that nullification of federal laws by state governments is unconstitutional, right? Well, not really. The argument against any and all nullification of federal law by the states rests on two obvious failures of understanding, one concerning the Supremacy Clause in the Constitution, and the other concerning an historical event in the early Republic known as the "Nullification Crisis."
First, the Supremacy Clause, which is found in Article IV of the Constitution,
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The simple-minded assessment of this clause supposes that it means that any and all laws made by the federal legislature (as well as federal judicial rulings, and executive orders or the administrative rulings of federal executive agencies) automatically and at all times "trump" state laws. However, this is emphatically not what this clause is saying – and it all centers upon the phrase "made in pursuance thereof." That single statement nullifies the absolute supremacy argument. Only laws (or rulings, or administrative rules) that are in line with the specific words of the Constitution and the division of powers made within it are supreme over state law. If a federal law (or ruling, or rule) is not "in pursuance" to what the Constitution says, then not only is that law (or ruling, or rule) null and void (because, as we have seen, the Constitution is supreme over every other aspect of government) prima facie, but it is also subject to complete and unlimited nullification by state governments, either through a refusal to credit it with authority, or through state law that directly overturns it.
Since this interpretation of the Supremacy Clause is at such variance with the common understanding that has prevailed since our nation took on a more unitary character with power centralized into the hands of the federal government (such that many assume, without investigation, that this is what was intended all along), it is reasonable to ask if my statement above is in line with what the Founders actually intended. I believe that it is, as Hamilton shows us,
"But it may be again asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers as upon the declamatory clause; and I answer in the second place that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the federal legislature should attempt to vary the law of descent in any State, would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposed to exist in the State governments?" (Hamilton, Federalist #33)
What Hamilton tells us here, among other things, is both that it is indeed possible for the federal government to overstep its boundaries and either invade the exclusive jurisdictions of the states or to overstep in areas of concurrent jurisdiction, and also that when the federal government does so, the people (implied to be through the agencies of their respective states, see the 9th and 10th amendments) have the right to "take such measures" as to redress the overstep of federal power. The best way to do this without resorting to bloodshed is through the means of nullification. Later in this same essay, Hamilton makes this intent more plainly,
"Though a law, therefore, for laying a tax for the use of the United States should be supreme in its nature and could not be legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but a usurpation of power not granted by the Constitution...The inference from the whole is that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports." (ibid.)
Hamilton refers to the issue of taxation here because that is the immediate subject of his essay, but the same principle will necessarily apply to any other area – the federal government cannot insert itself into areas of State authority where it is not specifically given constitutional authority to do so. When it does, such attempts are themselves unconstitutional, and are subject to nullification, which is indeed the proper response of the states to such efforts.
Some might object that the federal judiciary "gets to determine what is constitutional." No, this is not always the case. For the time being, I will refrain from examining in depth this question and save it for a later discussion. However, I would put forward two basic points against the "unlimited judiciary" interpretation (which is actually based on the socialistic principle of legal positivism instead of our constitutional foundation in the rule of law): 1) federal judicial rulings may themselves be unconstitutional, since the plain wording of the Constitution controls, rather than the later accretions of lawyers and judges, and 2) what almost universally goes under the name of "judicial review" in today's courts bears little to no resemblance to the principle of judicial review that was established by the Marbury v. Madison ruling, which is often appealed to, and indeed goes far beyond the precedent established in that ruling.
The other argument against nullification is one that rests upon the assertion that the legality of nullification was "settled" in 1832 by Andrew Jackson when he resolved the Nullification Crisis. Briefly, the Nullification Crisis involved an attempt by the state of South Carolina to nullify a set of federal tariffs that had been passed by Congress and signed into law by President Jackson. The crisis was eventually resolved in the federal government's favor.
The reason that appeal to this event fails as an argument against nullification is simply due to the fact that, constitutionally, South Carolina was in the wrong. Article I, Section 8 clearly grants Congress the power to impose "taxes, duties, imposts, and excises" provided they are uniformly applied (i.e. they can't be applied unevenly so as to "punish" or "coerce" one or a few states through their economically destructive power). The tariff, apart from opinions about it in South Carolina or objective questions about its utility, was a constitutional law. It was not a federal overreach. Attempting to nullify it was an error on the part of South Carolina.
As such, this Crisis can in no wise be used as a reasonable or rational argument against the principle of nullification in general, since it constituted no test of nullification against an actual, unconstitutional federal law.
So far, we have not really seen this principle used effectively by the states – and this is largely because of the foolish tendency on the part of much of our population to hold to views supporting unconstitutional unitary and centralized power in the hands of the federal government, holdovers from the first flush of ultrabig government arising from the "Progressive Era" and the Roosevelt years. However, as events over the last few years have shown us, the states, or at least a large set of them, need to get serious about working together to nullify unconstitutional federal laws. Federal gun laws, federal intrusion into the arena of marriage, federal environmental laws – the list goes on and on as to what states need to nullify. This will take courage on the part of state governors and legislators, which means it may come very slowly, as politicians as a rule are not given to courage or forthrightness or to standing on principle. However, we have seen some movement in this direction, and We the People need to encourage those steps and let those taking them know that we stand behind them 100%.
Again, this is not some new or radical doctrine. Madison noted the power of the states to oppose (or we would say, nullify) errant acts of the federal government,
"On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments caused by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter." (Madison, Federalist #46)
Will this constitute a direct challenge to federal authority? Yes and no. The federal government will certainly take it as such – and the states need to be ready and prepared to deal with federal attempts at using coercion to enforce its will. Yet, if the federal government has no legitimate authority, then its authority cannot be said to be challenged – just its willingness to use raw, naked force to get its way unconstitutionally, which is a proposition carrying much less moral authority. Make the federal government openly decide whether it will use force to make state officials marry sodomites or enforce blatantly anti-2nd amendment gun laws and bullet bans. Force it to either back down or else lose all legitimacy by pursuing the path of coercion against the Constitution. We the People need to be ready and willing to stand with our state governments should such a thing happen. "That's asking a lot!" you say? Well, whoever said that liberty came cheaply or easily? The only coin liberty knows is the willingness to stand firmly on principles dedicated to its maintenance and extension.
© Tim Dunkin
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