Wednesday, July 14, 2010

Activist Supreme Court Nominees

Are you worried about the latest choices for the Supreme Court? Do you think they will undermine or eliminate the Constitution? Jefferson and Adams had a solution for that. It's in the new book called Nullification by Thomas Woods.

Nullification begins with the point that a federal law that violates the Constitution is no law at all. It is void and of no effect. If a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law!

Nullification provides a shield between the people of a state and an unconstitutional law from the federal government.

The main point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow regardless of elections, the separation of powers and other limits on government power. James Madison and Thomas Jefferson both warned of this.
The Constitution is only a piece of paper and cannot enforce itself. The checks and balances of the three branches of government cannot guarantee a limited government, since these three branches can simply unite against the independence of the states and the reserved rights of the people. This is especially true if one party controls all three branches of government.

The real check on federal power is the ability of the states to interpose to prevent the enforcement of unconstitutional laws.

We cannot believe a bad law is settled because a nine politically well connected lawyers who are treated with awe have informed us that all is well. There is history for the general principle that an unconstitutional law is void. In Federalist Paper #78, Alexander Hamilton said “there is no position which depends on clearer principles, then that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

How and by whom should an unconstitutional law be declared void? The federal courts are a branch of the federal government. How can they be expected to be impartial judges? The Supreme Court itself is a branch of the federal government. In a dispute between the states and the federal government (take the Arizona Immigration law), does the resolution come from the federal government? Jefferson refused to accept that answer.

It was impossible for Jefferson to believe that the states would have agreed to a system that assured their unjust subordination! Spencer Roane, a Virginia Judge at that time said that if the federal judiciary were to arbitrate such a dispute between itself and the states, it would be presiding over its own case which is a clear absurdity!

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