By Harold Pease, Ph. D
When the Supreme Court no longer rules by the Constitution what must states do to force them to do so? It is called nullification and previously has been used to do just that in the 1800’s and more subtly in the last two decades.
Recent Supreme Court rulings with respect to the Affordable Care Act and marriage clearly demonstrate that the Supreme Court no longer honors Article I (requiring that only the Congress make all the law, their rulings can not have the effect of making new law), Article 1, Section 8 (the list identifying federal functions), and the 10th Amendment (reserving to the states all other powers not listed or added to the list by a specific amendment). Neither health nor marriage, or anything remotely like unto them, can be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only.
Two years ago 28 states sued the federal government for constitutional over-reach by forcing citizens to buy something that they did not wish to buy called a mandate. The John Robert’s Court, rather than rule this requirement constitutional or unconstitutional, redefined the mandate a tax, (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I. In a show of defiance to the Affordable Care Act, this decision prompted 34 states (all but 16) to refuse to establish state exchanges when given a choice by the Court; essentially “If you want it you create it.” They did!! The recent Supreme Court ruling then made resisting states provide the Medicare subsidy given the few states that had set up exchanges. No constitutional authority was cited. Again judicial legislation!! The reason cited by Justice John Roberts was essentially, “Congress created it so we will save it.”
At this point the only power left to the states is the 10th Amendment to the Constitution which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 28 states initially suing the Federal Government for violating this part of the Constitution and the 34 states resisting the judicial edict to conform must use the Doctrine of Nullification to save the amendment and the Constitution. The issue is that serious! They have no other real choice for a court that no longer uses the Constitution as its sole base for ruling. Federalism, a key part of our republic, is dead otherwise.
The constitutional argument is the same for the Supreme Courts recent ruling legalizing same-sex marriage in all 50 states. Again, the Court disregarded Article I, Section 8, and Amendments 1 and 10 and utterly discarded the philosophy of federalism and the will of the people expressed in every election concerning the matter. Everything in the Constitution prior to 1868 was discarded, even betrayed, in favor of four words in Amendment 14 adopted 78 years later and intended only to extend the Bill of Rights to former slaves. The phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow many times beyond original intent—each expansion becoming the rational for even more expansion. Today the Justices have used it to apply to an issue that would be entirely foreign to the framers of the 14 Amendment and to the Founding Fathers a lifetime before.
So again, the states have but one recourse to save the Constitution, federalism and the popular will of the people—nullification. But they must stand together and with one voice say, “not in our state.” States accepting same sex marriage can continue to do so constitutionally but the federal government, without an amendment to the Constitution transferring marriage authority from the states to the federal government, may not do so constitutionally no matter what a combination of five rogues justices say.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were especially expressive with respect to the use of nullification but what is clear in their writings is that states do have the authority to “Just Say No!” under the 10th Amendment. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.
More recently the 10th Amendment and resulting Doctrine of Nullification is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. Federal medical marijuana laws are openly defied by many states notably: Alaska, Oregon, Washington, and Colorado. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.
States you must use the Constitution to save the Constitution. In unison you must say, “We refuse to honor these clearly unconstitutional rulings in our state.”