Instead of taking the position of most folks in mainstream political organizations and denouncing nullification in all situations, the CATO head offers support for the principles, at least some of the time.
Levy acknowledges that the federal government cannot force states to enforce or enact federal law.
Are states required to enforce federal laws and enact regulatory programs that Congress mandates? The answer on both counts is “No.”
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 1992 case, New York v. United States, the Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.
But Levy stops short of approving nullification efforts that would actively block implementation of unconstitutional federal acts. He contends that an act remains constitutional until a federal court declares otherwise. He makes a solid argument from a lawyer’s perspective, but understanding nullification requires a historical perspective that often gets buried in American jurisprudence. Perhaps a slight shift in the theoretical framework will move CATO all the way into the nullification camp.
Like most lawyers, Levy believes that the Supreme Court makes the final and definitive decision on the constitutionality of an act. This makes perfect sense from a legal perspective. Lawyers rely on court precedent to build arguments, and modern American jurisprudence holds that the Court determined early on that it was the ultimate judge of constitutionality. But the argument falls apart when placed in the framework within which political power was delegated in the American system. In essence, the Court claimed power for itself that it never had the authority to claim in the first place. Furthermore, most legal scholars and attorneys badly misconstrue the case cited as the root of federal court supremacy.
We find the first fatal flaw in Levy’s argument early on when he confuses Jefferson and Madison’s reasoning in the Kentucky and Virginia Resolutions of 1798. Levy writes:
But consider those resolutions in context: Jefferson and Madison had argued that the states must have the final word because the Constitution had not expressly established an ultimate authority on constitutional matters.
Jefferson and Madison did not base their principles of nullification on the fact that the Constitution had not established an ultimate authority. They based their principles on the fact that the people of the states ARE the ultimate authority – not the federal government they created. Jefferson makes this clear in the first few lines of the Kentucky Resolution of 1798.
The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…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.
Madison makes the same point in his report of 1800.
The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.
Nullification follows from the delegation of power in the American system. The sovereign people first created independent, sovereign political societies – States – and delegated powers to their state governments. Then, the people, through those preexisting political societies, delegated specific, enumerated powers to a general government in order to form a union. The ratifiers made it clear that their states were only giving up sovereignty over those objects delegated to the federal government, and that they retained ALL powers not delegated. And they insisted on amendments (The Ninth and Tenth) to make this explicit.
If the federal government gets to decide the extent of its own power, through its own judicial branch, and the people of the states possess no mechanism to hold its creature in check, the whole notion of a federal government with limited enumerated powers becomes a farce.