In this video from last spring, Dr. Thomas E. Woods, Jr. debates Professor Neil Siegel about nullification. Siegel takes the position against nullification.
However, at about 11:13 in the video, Professor Siegel says,
“…you might have arguments that the federal law itself is not valid and therefore not supreme under the supremacy clause…”
And at about 23:38, talking about the health care law, he says,
“…no justice is going to say that states can opt out of otherwise valid federal law. No one is going to make that argument. The question is, ‘is this valid federal law?’…”
So we see that the disagreement really isn’t about whether nullification is legal. Even the opponent of nullification agrees that nobody has to follow an invalid federal law. The debate is really about who determines that a federal law is valid or invalid? Do the states and the people have that power, or does the supreme court dictate to us whether something is “a valid federal law”? Let’s look at two simple conversations addressing this question.
Question 1: Who interprets the Constitution?
Answer 1: The Supreme Court.
Question 2: Who says so?
Answer 2: The Supreme Court.
Boiled down to its core components, this is the argument of the nationalist. In order to distract from the argument’s shaky foundation, they throw in smoke and mirrors with phrases like, “supremacy clause” or “federal supremacy” or “Madison v. Marbury”, but none of that adds anything to their basic argument. The fundamental claim is that we should let the Supreme Court have sole authority to interpret the Constitution because the Supreme Court claims that authority. “Because I said so”, might be a good answer for a 4 year old, but it is not a sufficient argument for the security of our republic. The Supreme Court cannot claim this power for itself. If this claim is true, it must be clearly agreed to in the Constitution which the states ratified. It is not plausible to believe that the states and the people surrendered the power to interpret the Constitution for themselves without ever writing a word on the topic.
Let’s try another short conversation instead.
Question 1: Does the Constitution prohibit the States from interpreting the Constitution?
Answer 1: No
Question 2: Does the Constitution prohibit the People from interpreting the Constitution?
Answer 2: No
Question 3: If it’s not prohibited by the Constitution, what other grounds can there possibly be to prohibit the States and the People from interpreting the Constitution?
Answer 3: ???
It should, I think, be clear that the states and the people have never surrendered the power to interpret the Constitution for ourselves and that, as Professor Siegel said, if a federal law itself is not valid then it is not supreme under the supremacy clause.
cross-posted from the Pennsylvania Tenth Amendment Center