I recently participated on a round-table discussion on the Tenth Amendment, political sovereignty, delegation of power and nullification on a talk show in Indiana. The panel consisted of me, two left-leaning lawyers and a right-leaning lawyer.
I took two interesting observations away with me.
Most telling was the fact that both of the lefties and the righty disagreed with me, proving a point I’ve been making for quite a while – at the core, the left and right aren’t that much different. Both sides desire expansive government power. They just argue about what part of your life that power should apply to.
I also found it interesting that my opponents’ entire argument rested on the thinnest of ice. It looked solid on the surface. But the slightest poke easily punched holes in it.
Opponents of nullification base their argument on a false premise – the ultimate authority of the Supreme Court. The other three countered virtually every argument I made with, “the Supreme Court says.” It was almost comical. I pointed out in various ways that the Supreme Court does not stand as the sole and final authority on the extent of federal power, and they would answer, “But the Supreme Court says…” In essence, their argument boils down to “the Supreme Court stands as the ultimate authority because the Supreme Court says it stands as the ultimate authority.”
Sadly, the idea that the SCOTUS gets the final say prevails in American society. So-much-so that most people immediately assume anybody who calls the notion into question must be a kook. So, no matter what logical argument I bring to the table, opponents of nullification simply have to repeat “the Supreme Court says” over and over, and most American will conclude they won the debate. Who questions the Supreme Court? It has the word “supreme” in the name, right? This Mike guy must have a screw loose.
Of course, James Madison and Thomas Jefferson agreed with me. (Well, more accurately, I agree with them.) So, does that make them kooks too?
Madison wrote in his Report of 1800:
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact (the people of the state), from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
Madison’s argument makes sense logically. It fits within the ratifiers’ understanding of the Constitution they approved. It flows from the legitimate delegation of power from the people, to the states and then to the federal government.
But opponents simply ignore the argument. They pretend it doesn’t exist and parrot their talking point: the Supreme Court says.
At some point, doesn’t it become incumbent on those who claim the SCOTUS makes the final determination on the extent of federal power to refute Madison? To offer some proof from the ratifying conventions, or the intended structure of the American system, or legitimate delegation of powers? Don’t they need to offer up something to prove the absolute authority of the Supreme Court besides claims from the Supreme Court?
I think so.
And I’m waiting.