The feds do, according to an article at Nolan Chart on Monday, which specifically takes issue with the idea that nullification is a power left to the states by virtue of its having never been surrendered:
In order to advocate their belief nullification or Tenth Amendment advocates ignore the specific language of the Constitution prohibiting such state power. This specific language is contained in clauses two and three of Article VI of the Constitution sometimes referred to as the supremacy clause. Clause two mandates “the Constitution and laws of the United States which shall be made in Pursuance thereof…shall be the supreme law of the land the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” …Thus, any action by any state official to act in contrary of the Constitution, including the supremacy clause, is clearly unconstitutional.
Naturally, nullification proponents attempt to exploit the constitutional phrase, “made in pursuance thereof” asserting the laws, acts and rulings in question are not made “in pursuance” of the Constitution. Therefore, they assert, the state has the right to nullify such laws, acts or rulings as they are not made “in pursuance” of the Constitution. The problem with this argument is the Constitution does not assign the states the authority to decide what is “made in pursuance” of the Constitution. Instead, the Constitution assigns this authority to the federal courts under of Article III… Thus, the Constitution delegates the power to decide if something is constitutional or not to branches of the federal government and denied to the states.
We are used to seeing this from statists on the right and the left; in fact, it is pretty much the consensus position of the Supreme Court. But the author claims to be a libertarian, which kind of boggles the mind.
So, is his analysis correct?
Let’s ask Thomas Jefferson, the founding generation’s resident expert on natural law:
[T]he 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; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Game. Set. Match.
Who says logic is a dead art?