By Dr. Harold Pease
What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.
Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined, and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.
The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.
Is it constitutional to say no to the federal government when a state believes a Supreme Court decision to be unconstitutional? One having a limited knowledge of the Constitution would say no and cite Article VI, the supremacy clause, as the end of the matter. On matters listed in the Constitution he would be right, but this time the Supreme Court has ruled on something where it lacks authority to rule, clearly a state issue, and as such, if left unchallenged, certainly damages, perhaps even nullifies, the 10th Amendment of the Constitution, which leaves to the states all areas not delegated to the federal government. This understanding pre-existed any law on health by a couple of centuries.
To curb the umpire (Supreme Court), should he clearly favor one side, the Founders supported the doctrine of nullification. Rather than sue the federal government for having exceeded its constitutional power, the 26 states so doing should instead have followed the Idaho example and in essence said “not in our state.” The effort to grow the federal government beyond the listed bounds would have been unenforceable if enough states did so.
Such has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” Because nullification was better understood as part of the “balance formula” of the Constitution and because the offending law was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election), nullification stayed in place.
Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them, and neighboring states, to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.
One might argue that the Civil War ended the Nullification Doctrine but the real root cause of the Civil War was the practice of slavery, (I am aware that the immediate cause was keeping the union together), which practice made a mockery of the whole liberty concept. The slave issue pre-dated the Declaration of Independence and I would need another column to show why the war did not exempt the nullification argument.
Critical to the success of the Nullification Doctrine is the number of states committed to it. Obviously one state or a few, unable to prevail at least a majority to follow, would be easily overpowered by an overwhelming federal government power. But if the 26 states, who sued the federal government on the mandate issue, now said we will not comply, the federal government would be forced to find a face-saving exit on the issue and back down. That is the final constitutional check on overreaching federal power—the one least talked about and understood. If, at this time, the states do not care enough to preserve their power they deserve not to have it, or liberty.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.